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Scottish Court of Session Decisions >>
Polstead, Citizen of London, v Mr Richard Scot, Minister. [1681] Mor 1807 (7 July 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Mor0501807-004.html Cite as:
[1681] Mor 1807
Polstead, Citizen of London, v. Mr Richard Scot, Minister
Date: 7 July 1681 Case No. No 4.
It would be a good defence against a bond of presentation, that the presenting had become factum imprestabile, without any fault of the debtor or his cautioner. But the being imprisoned for another debt was considered to be the fault of the debtor.
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Samuel Polstead, having apprehended Maxwell of Kirk-house by caption upon a bond of 2600, merks, did, at the desire of Mr Richard Scot minister, dismiss him upon a bond, “to present him at Dumfries the first day of February last, or otherwise to pay the sum;” and now being charged to pay the sum, he suspends upon this reason, that Kirk-house was taken with another caption at Edinburgh, whereby it became factum imprestabile to present him at Dumfries the day foresaid, but he was willing to present him now in as good condition as he was before.—The charger answered, non relevat, for albeit death, or sickness, or any accident not occurring by the prisoner's fault, might have been relevant, if the party had been offered so soon as that accident ceased; yet it cannot be extended to any impediment by the prisoner, or his cautioner's fault or fact, such as to be under the hazard of other captions; for if that had been expressed, as it is pretended to be implied, no man of sense would have dismissed a prisoner in these terms that he should be re-produced such a day, if he were not taken by other captions for his own debt.
The Lords repelled the reason simply, albeit the prisoner had been offered immediately after he was free of the other caption.
