$ 2. CESSIO What is entitled to this privilege, who has been engaged in fraudulent transactions ". EVERY debtor, imprisoned for a debt of the proper de debtors? fcription, is entitled to the benefit of the ceffio. Even a Foreigners? foreigner, the greatest part of whofe debts had been contracted abroad, has been found entitled to it. Must be imprisoned for fix months. But no perfon can obtain the ceffio, unlefs he has been imprisoned for fix months before the application for it. If he be out on a bill of health, he may obtain it, that being held One out on as being legally in prifon. a bill of health. In the cafe fames Scott against Crosbie, the purfuer of the ceffio pleaded, that as imprisonment for debt was not penal, but merely a compulfitory for compelling payment, it followed that the benefit was to be granted to every debtor what ever, provided only there was complete evidence that his funds were all spent, and that nothing remained in his power. One respectable judge, fupporting the idea, observed, that, at the date of the acts of federunt 1666, 17th May, 1669, 26th February, 23d January 1663, there must have been two claffes of bankrupts in view, those who had become fo from innocent misfortunes, with refpect to whom the habit was difpensed with, and culpable bankrupts, who were ordained" in all time "thereafter to wear a bonnet part "ly," &c. His lordship, therefore, thought it agreeable to the ancient principles of our law, to grant the ceffio in every cafe where there was no ground to fufpet a concealment of effects, in the case of blame'; with the ftigma of the habit, in the case of an innocence without it. But the other judges did not go into that idea. They thought it afforded too much encouragement to fraud, in mercantile transactions, to allow the benefit to any but the fair trader; and that the law had been so fixed, by the general practice of the court, for many years past. Scott, at last, obtained the ceffio; but it was in confequence rather of Mr. Crofbie withdrawing his oppofition, than of any change of opinion in the court. 29th May 1804, Mercer against Tafker, &c. Fac. Coll. In France, the benefit of ceffio was confined to natives; but this limitation arole from a fpecial ordinance of the king, 1673, t. 10, art. 2. In Scotland, again, no enactment provided for that matter, and the court extended it to ftrangers, on the found and liberal principles of our common law. This, however, must depend a good $3. He must produce, with the procefs, a certificate under the hand of one of the magiftrates of the borough where he is imprisoned, bearing, that he hath been a month in prifon; without which certificate the process is not to be fuftained P. WHERE a prifoner is fet at liberty upon a ceffio, he must, if his creditors fhall infift on it, wear, for the future, a particular habit, appropriated, by custom, to dyvours or bankrupts 9. CESSIO BONORUM. habit. THE Court of feffion, by the faid act of federunt, declared, Difpenfing that they would not difpenfe with the wearing of the habit, with the Except in the cafe of mere misfortune; and they are, by the ftatute 1696, c. 5, prohibited to dispense with that mark of reproach, if it be not libelled in the fummons of ceflio, and fuftained and proved, that the bankruptcy was owing to misfortune". « caufe take the dyvour to the mer- deal on circumstances; for if it fhall $3. CESSIO BONORUM. THE debtor muft difpone over his whole heritable and moveable effects to his creditors. The Romans allowed him to retain the beneficium competentia, viz. what was ne Difpofition ceffary for his fuftenance; which doctrines is no farther gone into by our practice, than respect with implements o Beneficium husbandry, working tools, &c. neceffary for his future in competentia. duftry. And farther, perfons not in the way of fupport norum. Effe&t of liberation. ing themselves by industry, fuch as ministers, half-pay off cers, &c. have been allowed to retain a certain part of thei income, which seemed neceflary for their subsistance'. THE decree, ordaining the prisoner to be fet free, has no effect as to creditors who are not called in the action, no If creditors with refpect to future debts contracted by him, or future acquifitions," except," fays lord Bankton," as to what is "conferred on him by third parties, exprefsly for his ali are not all called. Future debts. Alimentary funds. $.4. CRIMI NALS. ment "." IV. CONFINEMENT for unknown causes, and confine ment for an unreafonable length of time, the two great dan gers most likely to attend the imprisonment of perfons accufed of crimes, are both provided against by the act 1701, which we have already largely confiderd. BUT, if perfons unable to find bail, or imprifoned for crimes not bailable, or imprifoned in panam, are fuffering in their health from the confinement, ftill there is no legal $4. CRIMI remedy applied to their cafe. If it can be afforded at all, it must come from the high court of justiciary, on a special NALS. ftatement of the circumftances of the cafe. Hence juftices of peace must feel themselves under the stronger obligations to prevent the evil, by attention to the difcharge of their statutory duty, in attending to the cleanness, the falubrity of the prisons, and the treatment of the prisoners. CHAP. XIII. Of Schools. I. 1. QUID vana fine moribus leges? Police regulations, and vindictive justice, can avail little, unless due care be taken of the public morals. On this account, the Scottish goverment expreffed much anxiety, that "the fubjects, expecially the youth, be exer"cifed and trained up in civilitie, godliness, knowlege, and learning;" thinking that there" are no means more "powerful to further this.... than the establishing of "schools in the particular parishes of this kingdom, where "the youth may be taught at the leaft to write and read, "and be catechifed and inftructed in the grounds of reli"gion." And, at an early period, when men of rank and political importance could frequently neither read nor write, ftatutes enacted, that "all baronis and fubftantious fre"halderis fould put thair airis to ye schulis c." a Act of privy council 1616. Ibid. Jas. IV, 1496, c. 87. Prefident Balfour"anent fchulis," p. 132. |