A person to whom a cessio bonorum had been refused, admitted to the benefit of the act of grace.
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Gray, in consequence of an application by Aitkin, from whom he rented a farm, stating, that he had fraudulently disposed of his effects, for the purpose of disappointing Aitkin's right of hypothec, was committed to prison by the Judge Ordinary, there to be detained until he should find security for the rent due by him.
Gray was afterward arrested in prison by another creditor. Having brought a process of cessio, he was opposed by Aitken; and the Court considering his conduct to have been extremely culpable, dismissed the action. He then applied to the Magistrates of the borough in which he was confined, for an aliment, in virtue of the statute of 1696, cap. 32. The Magistrates having awarded an aliment, Aitkin preferred a bill of advocation, which was passed, and
Pleaded, By our ancient law, a person confined for debt was to be maintained on bread and water, at the expense of his creditor, stat. 2. Rob. 1. c. 19. But if he was imprisoned for some criminal matter, in which the public at large was held to be chiefly interested, he was to be maintained at the public expense, or, what is the same thing, out of the funds appropriated to royal boroughs, for this and other necessary purposes. This distinction has been kept up by the statute of 1696. Those who are imprisoned for a civil debt or cause, may require the party at whose suit they are detained, to give them a moderate allowance, otherwise they are to be released; but the situation of prisoners for criminal causes, is declared to be the same as formerly. In the construction of this statute it has been held, that persons confined for any illegal proceeding, in consequence of which they are liable in damages to a private party, cannot be benefited by it. Surely then it cannot be thought that any indulgence ought to be shown, where the cause of imprisonment is a fraud of so palpable a nature, as to preclude the guilty person from the benefit of the cessio. Erskine, B. 4. Tit. 3. §. 28.
Answered, The distinction pointed out in the seatute, is evidently between criminals confined to prison, either in order to trial, or for undergoing some public punishment, and debtors imprisoned for non-performance of an obligation, for which they may be sued in the civil courts. Even although this obligation may have arisen from some culpable act, still, if, in consequence of his poverty, the prisoner is unable to provide for his own support, the Legislature seems to have thought that the loss arising from thence ought rather to fall on those who have occasioned his confinement, than on the royal boroughs, who must otherwise be subjected to it. Although a different construction has sometimes been given to the statute, this ought not to exclude a determination more agreeable to its true meaning.*
The Lord Ordinary remitted the cause simpliciter, and found expenses due.
And after advising a reclaiming petition, with answers, the Lords affirmed the judgment of the Lord Ordinary.
Ordinary, Lord Stonefield.Act. Maconocbie.Alt. Tait, Wemyss.Clerk, Sinclair.
Fol. Dic. v. 4. p. 140. Fac. Col. No. 134, p. 263.
* See 7th December 1787, Clark contra Johnston and others, No 135. p. 11818.
