Scottish Court of Session Decisions

Subject_1 PRISONER.
Subject_2 SECT. II.

Cessio Bonorum.

Mackay
v.
His Creditors

Date: 25 January 1794
Case No. No 111.

The pursuer of a cessio bonorum allowed to retain a small annuity for his aliment, altho' the donor had not declared it alimentary.

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Robert Mackay, a shopkeeper, having become bankrupt, brought a process of cessio bonorum.

His chief property consisted in a reversionary interest in the estate of an uncle, which depended upon his surviving certain other persons, and in an annuity which the uncle had left him, under the management of trustees, with power, if they should think it for his interest, (of which they were to be the sole judges,) to advance either the whole or a part of the capital. The annuity had been originally L. 12, but had been reduced to L. 9, in consequence of advances made to him by the trustees.

The creditors contended, that if the trustees should refuse, and the Court should not think proper to compel them to advance the remainder of the capital, the pursuer should be obliged to assign to them the annuity, as the donor had not declared it to be alimentary, or free from the diligence of his creditors.

The trustees having declined to advance the money, the pursuer stated, That he was one of seven nephews and nieces to whom legacies were left; but the only one to whom an annuity was given, because, from the facility of his disposition, his uncle did not think him capable of providing for himself; and further,

Pleaded; The annuity was evidently intended for the pursuer's aliment. Besides, it is so small, that the pursuer, who was not bred to any handicraft, is entitled to retain it, as coming under the beneficium competentiæ; 11th July 1778, Reid against Donaldson, No 5. p. 1392.; 5th August 1788, Pringle against Nielson, No 6. p. 1393. If the creditors should continue to confine him, they would be obliged to give him a greater allowance.; and they are evidently interested in his being at liberty and subsisted, as his reversionary interest in his uncle's estate depends upon his surviving other persons.

On advising a condescendence, with a minute and answers, it was

Observed on the Bench; The trustees cannot be compelled to advance the capital; and as the annuity is very small, and was evidently intended for the pursuer's aliment, and not to be liable to the diligence of creditors, he ought to be allowed to retain it.

The Court unanimously found, That the pursuer was not obliged to assign his annuity.

Act. Patison. Alt. Cay. Clerk, Home. Fol. Dic. v. 4. p. 138. Fac. Col. No 99. p. 220.