Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 MEDITATIO FUGÆ.

Doctor Andrew Heron
v.
Captain William Dickson

Date: 11 August 1772

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[Faculty Collection, VI. 248; Dictionary, 8550.]

Hailes. If a man may be thus summarily arrested upon no other evidence but the oath of the supposed creditor, without production of the ground of debt, we are in no better situation than the English are, by whose law a man may be imprisoned for debt where there is no debt.

Auchinleck. Although the grounds of debt were not produced at first, they are produced now; which comes to the same thing. The only caution asked is judicio sisti.

Pitfour. This is an improper use of the diligence of the law.

Gardenston. This extraordinary diligence, contrary to the common course of law, is not to be justified except upon clear grounds. I do not think the oath sufficient, when the debtor was only here occasionally. The expression, meditatio fugæ, points out what the law means. It is also of consequence that the ground of debt is not produced; not that the complainer is thereby hurt, but because of the handle for oppression this may afford. Diligence is never granted without production of the grounds of debt: Why admit that in an extraordinary diligence, which you would not admit in an ordinary?

Auchinleck. The tenor of the oath removes my difficulty.

President. Of the same opinion; but thinks that a summary warrant may be granted, although the grounds of debt are not instantly produced.

Coalston. I doubt whether the remedy of a summary warrant does not apply, although the debtor have a personal estate and even a real within our jurisdiction. My difficulty is from the form of the oath.

On the 11th August 1772, “The Lords passed the bill of liberation, without caution or consignation.”

Act. A. Lockhart. Alt P. Murray. Reporter, Kaimes.

1773. December 14.—Coalston. There is a distinction between one who has a residence in Scotland and one who has not. In the first case, evidence must be given of a meditation fugæ; in the second not. There is no occasion for an oath. In the Admiral Court, from a like necessity, the practice has been to begin with apprehending the party. The decision in the case of Herris proceeded on the same principles.

Pitfour. When a man has a land estate, he has a domicile, and there is no occasion for this extraordinary diligence.

Justice-Clerk. I would not encourage what is called nimious diligence; but I will not condemn an honest creditor, acting under a trust, in his attempts to recover a just debt. Here there was nothing nimious or oppressive in the diligence. Surely Dr Heron could have no difficulty in finding caution judicio sisti.

Monboddo. Dr Heron had a residence in this country, but it was a residence fictione juris: in such circumstances, I would not punish a trustee for doing personal diligence.

Gardenston. If a man is imprisoned illegally, damages are due, no matter what was the motive for his imprisonment. The only question here is, Whether the warrant was legal. I think it was. I approve of Lord Coalston's distinction: the warrant here is exactly similar to a border warrant. There is no oath necessary; all that is required is, to say that the party is a foreigner: his having a domicile by having an estate in Scotland, signifies nothing: that does not make him less a foreigner.

Alva. Extraordinary remedies ought to take place only in extraordinary cases. A man who has an heritable estate in Scotland, is amenable to our Courts without this summary warrant.

Kaimes. If a foreigner comes into this country, his creditor may say, You are a foreigner, and you must find security to remain where you are. The only difficulty in this case is, that Dr Heron has the appearance of a land estate in this country. I do not think that this is enough to bar an extraordinary application: the creditor is not bound to take the whole circuit of the law, in order to operate payment. In some cases, tutius est personæ adhærere quam rei.

On the 14th December 1773, “The Lords assoilyied.”

Act. A. Lockhart. Alt. P. Murray, Reporter, Stonefield.

Diss. Pitfour, Alva.

1774. January 28.—coalston. The distinction is well established between one having a residence in Scotland and one not.

Pitfour. I would be of the same opinion, were it not that Dr Heron has a land estate.

Justice-Clerk. The caution required was not severe, it was only judicio sisti: when there is a suspicion of a meditatio fugæ, the arrestment will be good, although there is a land estate. Dr Heron must be considered as a stranger, because his residence was in London: there was no oppressive intent here, but a laudable purpose of doing the duty of an executor.

Auchinleck. I do not like a man who tries to shake himself loose of a debt by a complaint of this kind.

On the 28th January 1774, “The Lords assoilyied Captain Dickson;" adhering to their former interlocutor.

Act. A. Lockhart. Alt. P. Murray.