Scottish Court of Session Decisions

This was a reclaiming note against a judgment of the Sheriff of Caithness finding that an application for the benefit of cessio was incompetent on the ground that the applicant was not incarcerated for payment of a civil debt but on a decree ad factum praestandum. The decree under which the petitioner had been imprisoned in the jail of Wick since August last was one pronounced by the Sheriff of Sutherlandshire, by which he granted warrant to officers of court to charge the petitioner and his partner, Angus M'Donald, to deliver up to David Levack, a herring fishing-boat and appurtenances and certain herring fishing-nets and buoys. It was not disputed that this was a decree ad factum praestandum, nor was it pretended that a person incarcerated on such a decree was in a position to apply for the benefit of cessio; but it was argued (1) that the agreement under which Levack claimed the absolute property of the boat, &c., in question was one which only gave him a right to them in security of a debt due to him; and (2) that the petitioner was not capable of implementing the decree against him, because the boat, &c., had been, in his absence in Aberdeenshire, sold under a diligence by a creditor of his partner, Angus M'Donald.

The Court refused the reclaiming-note, holding that as the decree was not brought under suspension it must be assumed to be a good decree; and that being a decree ad factum praestandum, it could not be made the foundation of an application for cessio.