THOMAS NICOLSON v THOMAS BINKS (Court of Session)

The doctrine established in these cases clearly applies to a case like the present. The certificate is not a mere personal protection, but a discharge of the debt; but that applies exclusively to English debts. The whole form and structure of the act under which the complainer obtained his liberation shew that it applied to Ireland alone, and therefore never could be intended or interpreted as interfering with Scotch diligence raised for payment of a Scotch debt.

The Lord Ordinary ordered the bill and answers to be printed, to be reported to the Court, and added the following note:

The question is, whether this same creditor, who imprisoned the complainer under the law of Ireland, claimed his debt in curia there, opposed the bankrupt in his demand under the statute, and took an assignment under all the sanctions of that law, can still, individually, proceed with personal diligence for the same debt in Scotland?

It is farther to be observed, that if the complainer were still in jail in Ireland, under the writ of fieri facias, the charger could hardly be allowed to proceed even against the goods of his prisoner consistently with the decision in the case of Gordon v. Gordon, December 13. 1825,—the whole proceeding in Ireland importing a judgment taken on the debt in the Irish court; and although the complainer is now discharged out of custody, that is by the act of the court under the statute, and must at least carry with it, against this charger, all the privileges thereto annexed.

If the complainer is right in his ground of suspension, the Lord Ordinary has no doubt that he must be liberated without caution.’