A person found entitled to the benefit of a cessio bonorum, who was imprisoned by the sentence of a Judge till payment of a fine to a private party.
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Daniel Dewar, with concurrence of William Sprott, Procurator-fiscal of the city of Edinburgh, presented a complaint to the Magistrates against William Law for an assault. The Magistrates fined Law L. 5 to the private complainer, and L. 2 to the Procurator-fiscal, and ordered him to be imprisoned till payment.
Law afterwards brought a process of cessio bonorum, which was opposed by Dewar and Sprott, his only creditors, who
Pleaded; Strictly speaking, a cessio bonorum is competent only where the bankruptcy has been occasioned by innocent misfortune; 1. 1. § 3. D. De pænis; 1. 35. D. De injur, et fam. lib.; 1. 37. D. De minor. Voet ad pandect, lib. 42. tit. 3. § 5.; Acts Sed. 1st December 1685; Bank. b. 4. t. 40. § 3.; Ersk. b. 4. tit. 3. § 27.; 19th November 1751, Malloch, No 99. p. 11774,; 9th August 1781, Stewart, No 107. p. 11792.; 12th July 1785, M'Cubbin, No 108. p. 11732; And although, in some late cases, the benefit has been extended to persons imprisoned, civiliter, for damages arising ex delicto, it has, in no case, been given where the pursuer has been imprisoned by the sentence of a Judge, which must be literally carried into execution, unless it be altered by a superior court.
Answered; Imprisonment awarded, till payment of a sum of money, whether to a private party or public prosecutor, takes place, not in modum pænæ, but is the consequence of poverty, and therefore the case comes to be the same as where damages, arising ex delicto, are awared in a civil action, and the defender is imprisoned, in the ordinary course of diligence, in which case the benefit of cessio is undoubtedly competent; 18th February 1764, Small, No 101. p. 11782. 5th March 1791, M'Dowall, No 110. p. 11793. 15th January 1794, Douglas, No 112. p. 11795.
Upon advising notes of precedents for the parties, the Court came to be of opinion, that there was no room for making any distinction between a fine to a private party and damages awarded to him civiliter ex delicto; and that, upon the principle of the decision Douglas against her Creditors, there was so far no ground for refusing the cessio; but they seemed disposed to refuse it, or, at least, to order further argument, on account of the fine to the Procurator-fiscal, upon which the pursuer's agent paid the fine at the Bar.
The Lords unanimously decerned in the cessio, and dispensed with the habit.
Act. Inglis.Alt. W. Baird.Clerk, Colquhoun.
Fac. Col. No. 191. p. 462.
