An action of cessio bonorum is incompetent, where the creditor has consented to the liberation of the debtor before he has been a month in prison.
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John Smith having been imprisoned, at the instance of one of his creditors, immediately executed a summons of cessio bonorum. The creditor consented to his liberation after he had been about a fortnight in prison. He, however, remained there, (having got another creditor to arrest him, on diligence which turned out to be wholly inept), and persisted in the action.
Some of his creditors, inter alia, objected, That the process was incompetent, as the diligence against him had been withdrawn before he had been a month in prison; Act Sed. 18th July 1688.
The pursuer answered; That, in the course of the preceding year, he had been six times imprisoned by his creditors; who, on purpose to harass him, and at the same time prevent him from getting a cessio, had always consented to his liberation before he had been a month in prison; but that, as the summons, in this case, had been executed before the consent was given, the objection was ill-founded; 3d February 1779, M'Kenzie against his Creditors, No 106. p. 11791.
The Court, upon advising a condescendence, objections, &c. thought that, in the circumstances of this case, the process was incompetent. It was, at the same time, observed, that if the debtor had been fairly in prison for a month, a consent to his liberation after that period would not have barred the action.*
* Smith, on the 21st March 1798, was again arrested in prison by another creditor: and having, in the summer Session, applied again, and produced a new certificate, from which it appeared, that he had been bona fide in prison for more than a month, the Lords (10th July 1798) found him entitled to the benefit of the cessio.
Act. Moncrieff Thriepland.Alt. W. Steuart.Clerk, Menzies.
Fac. Col. No 69. p. 159.
