Scottish Court of Session Decisions

Subject_1 PRISONER.
Subject_2 SECT. II.

Cessio Bonorum.

M'Kenzie
v.
His Creditors

Date: 3 February 1779
Case No. No 106.

Tho the imprisoning creditor consent to the bankrupt's liberation, he may still remain in prison, and sue for the benefit of the cessio bonorum.

Click here to view a pdf copy of this documet : PDF Copy

M'Kenzie was, on the 12th November 1778, incarcerated at the instance of Brown, and, on the 13th December, executed a summons of cessio bonorum against his Creditors, which was called in the course of the roll 28th January. A few days before the cause came into Court, but after the pursuer had been more than two months in prison, the incarcerating creditor intimated to the Magistrates a consent to his liberation; and the Magistrates mentioned this circumstance in the certificate which they granted of his imprisonment.— When the cause came before the Court, no appearance was made for any of the creditors; but it was at first doubted how far the cessio could proceed, in respect of the creditors' consent to his liberation.

Pleaded for the pursuer; That, after the debtor has been for the legal time in prison, and his action in Court, or even his summons of cessio executed, it is not in the power of the incarcerator, by a consent to his liberation, to bar him from proceeding in the action. If he had such a power, the benefit of the cessio, instead of depending on a compliance with the requisites of law, might at all times, be disappointed by the incarcerator, or the bankrupt's other creditors; for there is nothing to prevent any of them from incarcerating the bankrupt anew after his liberation. Thus, he might be kept in a state of constant imprisonment.

The Court “allowed the cessio to proceed.”

Act. Erskine. Fol. Dic. v. 4. p. 139. Fac. Col. No 63. p. 115.