Scottish Court of Session Decisions

Henry Trainer, iron-moulder in Glasgow, being imprisoned for debt, raised a process of cessio before the Sheriff of Lanarkshire, under 6 and 7 Will. IV., c. 56. Before the expiry of the induciæ of 30 days, he presented a petition for liberation and interim protection, and on April 26, 1838, the Sheriff ordained him “to find sufficient caution acted in the books of Court, that he will appear at all diets of Court whenever required, and that under the penalty of ten pounds sterling.” On the same day the Sheriff afterwards, in respect “that caution has now been found in terms of the above interlocutor, granted warrant and authorized the keeper of the Glasgow jail to liberate the petitioner, Henry Trainer, from said jail, and ordained him to be set at liberty accordingly, in terms of the Act 6 and 7 Will. IV., cap. 56.” Against this judgment, James Brown, one of the creditors of Trainer, presented a reclaiming note to the Lords of the First Division of the Court, praying their Lordships “to recal and alter the said interlocutors of 26th April last; to refuse the pursuer, the said Henry Trainer's application for liberation and interim protection; or at least to find it incompetent for the Sheriff to entertain the same, until expiry of the induciæ of thirty days previous to the said Henry Trainer's public examination, and to remit to the Sheriff to recal the said interlocutors accordingly.”

Before the reclaiming note came to be advised, the induciæ of 30 days had expired, but the reclaimer stated that he still wished to insist for the judgment of the Court as to the competency of the interlocutor of the Sheriff; that he had an interest to do so, both as to the question of right which was involved, and as to the question of expenses; and that it was important to the law to have the question settled.

The Court accordingly heard parties, and gave judgment on the note.