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Scottish Court of Session Decisions >>
Balfour v Bruce. [1686] Mor 11772 (00 November 1686)
URL: http://www.bailii.org/scot/cases/ScotCS/1686/Mor2811772-094.html Cite as:
[1686] Mor 11772
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Sir Alexander Bruce of Broomhall being charged at the instance of Isobel Balfour, he obtained suspension as to personal execution upon consignation of a disposition of his whole estate, as well heritable as moveable, in favour of all his creditors, whereof the charger was one; and made faith at the passing of the suspension, that he had not done any fraudulent deed in prejudice of his creditor, as was appointed by the act of sederunt anent juratory caution. Answered, That albeit when suspensions are passed upon certain reasons, the Lords, by the act of sederunt, allowed suspensions to be expede upon juratory caution, the suspender always consigning a disposition of his estate which was received in place of a cautioner; yet, when the suspension comes to be discussed, the consigning of such a disposition cannot liberate the suspender from personal execution; for otherwise, such suspensions should have the effect of a cessio bonorum, which can only be sustained by way of action, and all the formalities and solemnities required by the law must be observed, The Lords repelled the reasons of suspension, and found the suspender liable to personal execution, notwithstanding of the consigning a disposition of his estate.
Fol. Dic. v. 2. p. 173. Sir Pat. Home, MS. v. 2. No 817.
