Scottish Court of Session Decisions

This was a note of suspension and liberation brought by Fitzsimmons, craving to be instantly liberated from prison, and protection from all other diligence. The complainer last year brought a process of cessio. During its dependence he was put in prison by Bell, upon a bill for £100. He thereupon made an application to the Court, in the

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progress of which he asked for liberation in order to be able to attend to the depending process of cessio. The Court liberated, but the interlocutor did not bear that the liberation was to be available for any particular time, and did not give protection. Fitzsimmons afterwards applied to the Lord Ordinary on the Bills during vacation for protection, and having failed to find the consignation or caution required, it was refused. Nearly a year having elapsed without any steps being taken in the process, Bell again re-imprisoned him, upon a different diligence from what had been put in force in the cessio. The present note of suspension and liberation was accordingly brought to set aside the present warrant of imprisonment. The question turned on the construction of the 15th section of the Cessio Act, which is as follows:—

“And be it enacted, that if the debtor be in prison, it shall be competent for the Inner House during session, and for the Lord Ordinary on the Rills during the vacation or the Christmas recess, whether the case has been originally instituted in the Court of Session or before the Sheriff (provided that it be under review of the said court), and for the Sheriff, where the petition has been presented to and is depending before him, on production of a copy of the said Gazette containing the notice aforesaid, and of the certificate of transmission of the letters or execution of citation, to grant warrant to liberate the debtor, and if the debtor is not in prison to grant warrant for his personal protection against the execution of diligence for such space of time as shall be proper; provided that before any such warrant be issued the debtor shall lodge with the clerk of Court a bond with a sufficient cautioner, binding themselves that he shall attend all diets of Court whenever required under such penalty as may be reasonable, and which, if forfeited, shall be divided among the creditors; and it shall be competent for the Inner House, or the said Lord Ordinary, or the Sheriff respectively, in all cases to grant warrant to bring the debtor before them for examination, and also to carry him back to prison; and such warrant, as well as the warrant of liberation and the warrant of personal protection, shall be good and lawful warrants in all parts of Scotland to the effect therein specified; and it shall not be competent, where the warrant of liberation or protection is granted by the Lord Ordinary on the bills or the Sheriff, to suspend the effect thereof by lodging a reclaiming note or petition complaining of the same: provided nevertheless, that a reclaiming note or petition may be lodged as herein-before provided, and it shall be competent to the Inner-House or the Sheriff (as the case may be), on hearing parties, to recal the warrant of liberation and protection.”

The Lord Ordinary ( Mure) reported the case to the Inner-House.