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Scottish Court of Session Decisions >>
Bogg v Davidson. [1668] Mor 10380 (8 July 1668)
URL: http://www.bailii.org/scot/cases/ScotCS/1668/Mor2510380-062.html Cite as:
[1668] Mor 10380
Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. III.
What Rights go to Assignees.
Bogg v. Davidson
Date: 8 July 1668 Case No. No 62.
If a bankrupt has obtained decree of cessio bonorum, a fee given him for service, equivalent to an aliment, is not arrestable.
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Robert Davidson being debtor to Hugh Bogg by bond, and becoming bankrupt, did obtain a decreet, freeing him from personal execution, a cessione bonorum; and thereafter being employed by the Magistrates of Edinburgh in Heriot's Hospital, for which he had a fee allowed him during his service, the said Hugh did arrest the fee, and pursued to make furthcoming; which action was not sustained, unless it were condescended and proved, that he had more than a reasonable aliment; for the Lords found, that, so far as it was an aliment, it could not be arrested, it being in the power of Magistrates to deprive both him and the creditors thereof.
Gosford, MS. No 24. p. 49.*** Stair reports this case:
1668. July 9.—Hugh Bogg having arrested Robert Davidson's fee, as keeper of Heriot's Hospital, pursues the Town of Edinburgh to make it forthcoming; it was alleged for Robert Davidson, Absolvitor; because Robert Davidson had made cessionem bonorum, in favour of this pursuer and his other creditors, and thereupon was assoilzied. The pursuer answered, That a bonorum did noways secure contra acquirenda, unless the assignation or disposition had been equivalent to the debt, and satisfied it. The defender answered, That that which was here acquired was only a fee for service, which is alimentary, and the fee will not be due, unless the defender serve in suitable condition, effeiring to his place; and, therefore, it cannot be made forthcoming to any other use.
The Lords found, that a fee, in so far as was necessary for the servant's aliment, conform to his condition of service, could not be reached by his creditors, to whom he had made cessionem bonorum, except as to the superplus, more than what was necessary; and they found no superplus in this case.
