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The defender having been brought before the sheriff for examination, declared ‘That he intended, if he could not get employment here, to go to Liverpool, to commence business there in the course of a fortnight.’
The sheriff granted warrant for imprisoning the defender ‘within the tolbooth of Paisley, therein to remain till he find sufficient caution in the books of court, that he will remain within Scotland for the space of six months from this date, and abide the raising and execution of diligence against him for payment of the debt.’
Both parties presented reclaiming notes to the First Division. Their Lordships appointed the case to be heard before the whole Court.
Meditatio fugæ warrants are comparatively of recent introduction into the law of Scotland. They were introduced without statute, as an extraordinary remedy, and considered as a stretch of the powers of the Court. In the case of Mason's Creditors, Supplicants, 30th Nov. 1665, Stair (Mor. 8547) the Court doubted their powers to grant such warrants, even in the plain case of debtor and creditor. From that time, it has been held to be an extraordinary remedy, viewed with great jealousy, and such as ought not to be extended, or taken as a matter of course.
This has always been considered as a very extraordinary remedy; and the principles by which it is regulated were laid down from the Bench in the case of Borthwick v. M'Gibbon and Hamilton, 14th May 1813.
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