A person who had obtained a Cessio, was sued by a creditor who had been called. The bankrupt urged, that the decree of Cessio protected not only from personal diligence, but from diligence against effects acquired after the decree, except in so far as exceeding a competency. The Court suspended only as to personal diligence. But they expressed an opinion, that the tools by which the bankrupt earned his subsistence, could not be affected.
Click here to view a pdf copy of this documet : PDF Copy
Patrick Reid obtained decreet of cessio bonorum against his creditors. Afterwards, Donaldson, one of the creditors called in the cessio, pursued Reid for payment of his debt, obtained decreet in absence, and was proceeding to do diligence against his effects.—In a suspension,
Pleaded for Reid: The decreet of cessio protects the suspender not only from personal diligence, but likewise from diligence against his effects afterwards acquired; except in so far as the charger is able to instruct, that the suspender has effects over and above a competency for the subsistence of him and his family. This is agreeable to the doctrine of the Roman law, from which we borrow the action of cessio, and the beneficium competentiæ given by that law to the obtainer of the cessio, ff. 1. 42. 3. 6. is likewise adopted into ours, Quon Attach. c. 7.; Bankton, v. 3. p. 18. § 1.; p. 19. § 5.; Erskine, p. 696. § 27. The charger, therefore, can attach no effects belonging to the suspender, without first condescending on such effects, that it may be known whether a competency would remain.
On the part of the charger: No objection was made in this case to suspending, as to diligence against the person of the bankrupt; but, it was insisted, that the decreet of cessio does not protect effects of the bankrupt, afterwards acquired, from the diligence of his creditors. Our law does not indulge the bankrupt with a reservation of effects sufficient for an aliment. The opinions of Lord Bankton and Mr Erskine, adduced by the suspender, seem to be founded solely on a passage in the Quon. Attach. c. 7. which supposes that every debtor, both before and after a cessio, is entitled to this privilege. That passage, therefore, can merit no regard as an authority. The law is fixed by the usage. No instance ever occurred, in which this reservation was allowed, either at obtaining the cessio, or out of effects afterwards acquired. The charger, therefore, is not bound to condescend, as the suspender is not entitled to have any thing reserved. Such a condescendence might likewise be the means of disappointing the diligence altogether.
The Court were of opinion, That the charger must be allowed to proceed in his diligence to attach the effects, without condescending; and that the debtor had no right to have any part of his effects set aside to him for his maintenance; but in case the charger, in the execution of the diligence, should proceed to any act of rigour, such as attaching the tools by which the suspender, as an artificer, gains his daily bread, the Court would then judge on the circumstances of the case, whether the diligence ought to be supported.
‘The Court suspended the letters quoad personal diligence against the suspender; but, in other respects, found the letters orderly produced.’
