One imprisoned for a claim of damages, tho' ex delicto, entitled to the benefit of cessio, if the bankruptcy arose from other causes.
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In an action of damages for seduction, instituted by Catharine Moliere against Macdowal, the Court found her entitled on that account, to a certain sum of money, for which she used ultimate diligence against him. Having been incarcerated at her instance, he raised a process of cessio bonorum, in which she appeared, and maintained, that he ought not to receive this benefit to her prejudice, to whom he owed a debt ex delicto, for reparation of the injury she had sustained from him.
The Court took notice, that in cases of this kind, there had occurred some contrariety in the decisions. In the case of Malloch, 19th November 1751, No 99. p. 11774, the benefit of cessio bonorum was denied to a person whose imprisonment was on account of a debt in name of assythment; and in that of Stewart, 9th of August 1781, No 107. p. 11792, it was in like manner denied, the pursuer having been incarcerated for damages arising ex delicto; besides that, in the analagous question concerning the act of grace, a person in prison for damages, Macleslie, 23d November 1738, No 128. p. 11810, and another for statutory penalties, No 134. p. 11817, were found not entitled to that benefit. On the other hand, a person imprisoned until payment of money decreed against him for penalty and damages, was found entitled to the benefit of cessio bonorum, 18th February 1764, Small contra Clerk, No 101. p. 11782. But it was observed, That a principle which had been adopted with respect to people who had been engaged in illicit trade tended to regulate all cases of this nature. If bankruptcy had been the result of smuggling adventures, the bankrupt was refused the benefit in question; whereas, if his situation had been produced by other causes, that circumstance was not deemed sufficient to prevent him from obtaining it. On the same principle, it was added, as in this case the pursuer's insolvency was not owing to the present demand, resulting ex delicto, but to a variety of other debts, his action ought to be sustained.
The Lords repelled the defence, and found the pursuer entitled to the benefit of the cessio bonorum.
A petition reclaiming against this judgment was refused without answers.
Act. Honyman.Alt. Dean of Faculty.Clerk, Colquhoun.
Fol. Dic. v. 4. p. 139. Fac. Col. No 174. p. 356.
