Abbildungen der Seite
PDF
EPUB

rated, or brought to a trial at any future period, for any thing refpecting debts that were owing by him at the time of his bankruptcy. The profecutor, in this cafe, to be liable in all costs without recourfe. If, on the contrary, the jury fhall find the prisoner guilty, the judge will of courfe pronounce the fentence that the law awards. In this cafe, the expence of the profecution fhall be paid out of the debtor's effects, before a dividend takes place among the creditors.

7. If the jury fhall perceive that circumstances upon the trial appear fo fufpicious as to make them, hesitate about pronouncing the prifoner innocent, though the proofs are not fo direct as to authorise them to pronounce him guilty, they may return a special verdict, which fhall imply that the prisoner may be detained for the space of

days longer, till a new trial can be brought forward. In this cafe, the expences already incurred, fhall be paid by the profecutor, who fhall not be entitled to draw any part of it out of the debtor's effects; but it fhall conftitute a new claim against the prifoner, the repayment of which the creditor may afterwards enforce by any means in his power, under the conditions to be after fpecified.

8. Where the jury give a fpecial verdict, the prifoner fhall be bailable or not, as before, according to the nature of the crime he is charged with.

9. And if a second, or any subsequent jury fhall give another fpécial verdict, the prisoner may be again, and again brought to trial, till a jury fhall fee proper either to acquit or to condemn him. And as to the expences incurred by each of thefe trials, including every thing from the time of the former trial, the nature of the fentence of each jury fhall determine by whom it shall be borne, according to the rules above laid down; every trial being paid by itfelf, and not liable to be in any refpect affected by the fentence to be pronounced on a fubfequent trial.

10. But in the event of a special verdict, the profecutor fhall not be obliged to carry his fuit farther than he fliall incline; and if, immediately after the trial is over, he fhall declare that he declines any farther profecution, and if no other creditor fhall come forward, and make affidavit to the fame effect, and agree to go on with the profecution, the prifoner fhall then be difmiffed from the bar, though he shall still be liable to be profecuted for this crime at any future period, until a final dividend of his effects have been made, but no longer. Or if the profecutor fhall relinquish the trial at the time it ought to have come on ;-in that case, the prifoner fhall be difcharged, and the fame rule with regard to expences fhall take place, as if he had been ac-quitted by the jury. This does not, however, preclude him from being again brought to trial at any time before the final dividend of his effects, as is fpecified in the next article.

1. All the cafes above specified, only respect thofe debtors who have been committed to prifon, before their bankruptcy had been declared. In cafes where a bankruptcy had been declared, when the perfon of the debtor was free, the following regulations with refpect to -imprisonment, appear to be juft and equitable.

12. In that case it shall be competent for any creditor, during the whole of the time that fhall elapfe from the period when the bankruptcy was declared, until the last dividend of the effects fhall have been made, to bring the debtor to a trial if he fhall fee fit, by making an affidavit in the manner above defcribed, and conducting the prosecution in every respect as above.

13. But if no perfon fhall think proper to bring on a trial, before the last dividend fhall have been made of the debtor's effects, it shall not be competent ever afterwards, to bring on a trial for any thing refpecting that bankruptcy; and the perfon of the debtor fhall, as to thefe debts, be ever after free from arrest.

VOL, I.

14. By this mode of procedure, the perfon of the debtor would be free, unless where he had been convicted of a crime. But it is by no means intended, that he fhould be thus freed from thofe debts that ftill remain unpaid, after all his effects have been fold. Thefe debts while undifcharged, fhall remain a burden upon him and upon his heirs, in all time to come. Nor fhall any individual creditor be compellable to grant a dif charge of his own particular debt, by any mode of procedure whatever, unless he shall chufe to do it voluntarily and of his own accord. The law which at prefent exists in England, by which the confent of a certain proportion of the creditors, neceffarily grants a difcharge from the whole, and that law in Scotland, which in certain circumftances grants a general difcharge from all debts, having been only adopted to mitigate the feverity of our law refpecting imprisonment, and being evidently a great infringement of private right, and liable to confiderable abufes, ought to be entirely abrogated as unneceffary, were the fyftem here propofed adopted. For the fame reafon, it would seem proper, that all fanctuaries for debt, ought alfo in this fenfe to be done away as unneceffary, and liable to abuse; and general acts of infolvency could no longer be ne ceffary.

15. In every cafe where a bankruptcy is incurred, and a furrendry of effects of courfe takes place, the fame regulations that now are in force, for bringing the effects to a ready fale, and dividing the produce equally among the whole creditors, may ftill fubfift till other regulations fhall be devifed, that may promife to be more efficacious.

16. But after a bankruptcy has once taken place, and a fubfequent equal dividend been made among the creditors, though the claims of each of thefe creditors continue to be good against the debtor for all the unextinguished parts of their debts; yet no one of the fe hall have power to bring on a fecond bankruptcy for

these debts, but each creditor fhall have a power, legally to feize on the effects of the debtor wherever they can be found, and to apply them to his own ufe, without communicating any part of them to the other credi tors, until his whole claim fhall be finally extinguifhed.

17. But if the debtor fhall contract, any new debts fublequent to his bankruptcy either to thefe former creditors or others, if a fequetration of effects shall be made for any of these new debts, while the debtor is not` able to fatisfy all claims upon him; this fall neceffarily bring on a new bankruptcy, which must as neceffarily produce an equal dividend of the produce of the debt or's whole effects among all his creditors at the time; and on this event, the old creditors fhall rank the fame as the new, in proportion to the amount of their refpective claims.

18. New debtors in this cafe, fhall have the fame power to imprifon and to bring the debtor to a trial, as if it had been a first bankruptcy.

19. But that a man, who, notwithstanding the outftanding debts against him, has his person thus protect ed from danger of imprisonment may be enabled to earn his bread, it fhould be enacted, that in all cafes of arreft or fequeftration of effects, the neceflary tools for working in his profeflion ought to be excepted, as alfo, one fuit at leaft of body clothes for himfelf and each individual of his family. As many bedclothes likewife should be protected, as fhould be deemed reasonably fufficient to defend the whole family from fuffering by cold, and fo many of the kitchen utenfils of the plainest fort, as are neceffary for readying common victuals for the family, without which it does not feem that perfons can easily fubfift in a state of civil fociety.

20. And that no abuses might be fuffered to creep in under this pretext, it fhall be fpecially required on every furrendry of effects, that thefe excepted goods be all produced before the creditors at the time, to be infpected by them; and if those produced shall be judged of a kind

[ocr errors]

too fine, or too coftly for the occafion, these may be retained if the creditors fhall fo incline; and others more plain, though equally ferviceable, to be fubftituted in their ftead. In every cafe, the whole goods excepted fhall be enumerated, and fpecially defcribed in the act of furrendry; and any unfair concealment in this refpect fhall be accounted a fraud, and fhall be liable to be profecuted as fuch.

21. Should thefe regulations be adopted, though it would not be poffible in any circumftance to compel any creditor involuntarily to grant a difcharge until his whole claim was paid up; yet it is by no means intended to prevent a debtor from obtaining a relief from the preffure of his debts by means of a voluntary discharge from fuch of his creditors as might choose to grant it, upon any terms of compofition they fhall think proper to accept.

By thefe few regulations, it appears to me, that the person of a debtor would be as much protected, as juftice and found policy could demand; and his power of enjoying life as much preferved, as seems to be confiftent with the juft rights of his creditors. Fraudulent bankruptcies would in thefe circumftances be much lefs eafily carried into effect than at prefent, and creditors would have a far better chance of obtaining payment of their debts, than they can ever have under our prefent fyftem of laws.

:

It willbe readily remarked, that these regulations would be beneficial,chiefly in regard to debtors in the lower ranks of life who are, according to our prefent fyftem of laws, particularly liable to be oppreffed by finall debts, and the community thus deprived of the benefit of their labour. It is fuch perfons chiefly, who,from their being unobferved by the great body of the people, are allowed to pine in thefe manfions of mifery and villany, while their wretched families, deprived of that labour which fhould be their fupport, become an oppreffive burden on the induftrious part of the community, or a fevere fcourge on

« ZurückWeiter »