Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 PRISONER.

M'Kenzie Brown
v.
His Creditors

Date: 17 December 1778

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A debtor, liberated from prison on the Act of Grace, may be again imprisoned for the same debt; so the Lords found, 11 New Coll., Abercrombie against Brodie. The point again occurred, 17th November 1769. Pollock against Falton, when the Lords pronounced a similar interlocutor. This interlocutor was reclaimed against, and afterwards the matter was made up, so did not receive a final decision. But though this point in the general should be held to be fixed, yet it seems highly expedient to qualify it; as in the case of Low against White, 10th December 1709, collected by Forbes, where the Lords found, That the second incarceration, by virtue of the same caption, could not be sine causa cognita, and by warrant of the Lords.—Perhaps this was going too far; at the same time some notification, either by a new charge or some other method, seems highly reasonable, otherwise a door might be opened for oppression. So it was argued, 17th December 1775, M'Kenzie Brown against His Creditors ; and yet the Lords were of opinion, that no such new charge or notification was in law necessary; and that a debtor, liberated on the Act of Grace, might be again imprisoned for the same debt, and on the same caption, without any new charge or notification. If the creditor was oppressive, it was said he might be punished for it. The Lords refused a reclaiming bill without answers.