A person who had obtained a Cessio, was afterwards employed as a clerk, with a salary of 251. He furnished a small house. A creditor attempted to poind and arrest. He pleaded beneficium competentiæ. The Court suspended only quoad personal diligence, wearing apparel and working tools.
Click here to view a pdf copy of this documet : PDF Copy
Robert Pringle, formerly a retail dealer in the town of Dalkeith, after having obtained a Cessio bonorum, was employed as a merchant's clerk; in which capacity he had a salary of L. 25 per annum. Having furnished a small house for the reception of his family, consisting of a wife and several children, a poinding of the furniture was attempted by Alexander Neilson, a creditor of his, to the extent of L. 4: 16: 9, who had been summoned in the process of Cessio. An arrestment of the salary was also used.
Robert Pringle offered a bill of suspension, in which he
Pleaded: A decreet of Cessio does not, like a certificate of bankruptcy in England, procure a total release to the debtor, any property he afterwards becomes master of, being still, in general, attachable by his creditors. But while, in this manner, a proper care has been taken by our law, to hinder a perversion of this humane remedy, it has been equally an object of attention, that it should not, by an over-rigorous execution of diligence, in virtue of prior debts, be entirely frustrated. With this view, the beneficium competentiæ has been introduced, whereby not only the debtor's wearing apparel, and the implements of his trade, but also such a portion of the effects acquired by him after obtaining the Cessio, as is indispensably necessary for his support, are secured to him. In the present case, where the sums earned by the debtor are barely sufficient, with the utmost frugality, to maintain him and his numerous family in that decent manner, which the nature of his employment requires, the proceedings that have been held must appear equally irregular and unauthorised; Quon. Attach. c. 7. § 3.; Erskine, b. 4. tit. 3. § 27.
Answered: In consequence of a Cessio bonorum, a debtor merely obtains an exemption from personal arrests. Whatever he afterwards acquires, whether by his own industry, or by other methods, is liable to the diligence of his creditors.
If, indeed, a creditor were to exercise his right in an oppressive manner, as by poinding the body-clothes of his debtor, or the tools which are necessary for providing his subsistence; this, as an abuse of legal execution, would be liable to correction. But, beyond this, our customs have never gone; the beneficium competentiæ, as known in the Roman law, being only admitted with us in the case of gratuitous obligations, or in those where the parties stand in the relation of parent and child to each other. And, in circumstances such as the present, where the sums due to the user of the diligence are so inconsiderable, that after payment, there is still a sufficiency left for enabling the debtor to live, with that frugal economy, which becomes one in his unfortunate situation, it seems impossible to doubt the legality of the measures that have been followed; 11th July 1778, Patrick Reid contra Matthew Donaldson, (supra).
The Lord Ordinary suspended the letters “quoad the suspender's person, wearing apparel, and working-tools; but found the letters orderly proceeded quoad ultra.”
After advising a reclaiming petition for Robert Pringle, with answers for Alexander Neilson, it was
Observed on the Bench: There is no example, where the beneficium competentiæ, in the extent known in the Roman law, has been recognised in the Scots courts. And in the case under consideration, it does not seem necessary to give any determination on the point. But, if the creditors of a bankrupt, who had obtained a Cessio, were to proceed in such a way, as not even to leave him the necessaries of life; as the purpose of the law would thus be frustrated, it would doubtless be competent for the Court of Session to apply a remedy.
‘The Lords refused the petition,’ thus affirming the judgment pronounced by the Lord Ordinary.
Lord Ordinary, Dunsinnan.Act. Dickson.Alt. Geo. Fergusson.Clerk, Sinclair.
Fol. Dic. v. 3. p. 73. Fac. Col. No 42. p. 70.
