Scottish Court of Session Decisions

Subject_1 BONA ET MALA FIDES.
Subject_2 SECT. III.

Ignorantia Juris.

Fairholm
v.
Bailie Warrender

Date: 30 November 1703
Case No. No 14.

A magistrate having neglected the particular regulations laid down by an act of Parliament, was acquitted of the fine, propter probabilem ignorantiam juris.

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Lord Phesdo reported Fairholm against Bailie Warrender. James Fairholm, and other managers of the manufactory at Edinburgh, acquaint Bailie Warrander, on 19th of October last, that there were some unlawful prohibited goods hid in two private houses in Edinburgh, and craved his concourse to search and seize the same. He delaying on the account it was night-time, being past seven o'clock, and dark, and doubting if he was obliged; they took instruments against him, and exhibited a complaint to the Lords, founded on the 8th and 12th acts of Parliament 1700, commanding magistrates, when required, to give their concurrence without delay. The Bailie's defence was, 1mo, That he was not required in the terms and meaning of the acts of Parliament, which must not be understood Judaice but civiliter. What if they should crave concurrence from a Bailie in the middle of the night, at two o'clock of the morning, when asleep in his bed, may he not justly refuse them access till next morning? What if they require him to go search the Chancellor's house at midnight, the informers being persons he knows not, (in no public character), and if they malverse in the execution, and break up cabinets, and carry away bank-notes, instead of prohibited goods, and afterwards withdraw from all punishment, what disorders may follow on such nocturnal searches? And our old act of Parliament ordains all men to retire home to their houses after the ringing of the bell, which was then at nine o'clock at night; (vid. act 144. Parliament 1436.); and every man's house ought to be his sanctuary under silence and cloud of night, the poet saying truly, nox nil moderabile suadet: Neither can the magistrates be answerable to prevent tumults and rabbles, if such execution were allowed in the night-time. And, on these grounds, the Lords, on the 10th of November last, found Sir William Hope's ejection illegal, because before the sun.*—Answered, As the Lords are the interpreters of the laws, so their great rule must be the legislature's meaning to make the law effectual, which will be rendered elusory if magistrates be allowed to scan the sense of every word, and shift the execution on the pretence of inconveniencies that may arise; for that is to make them wiser than the law; and to what end is the word indilate, without delay, inserted in the act, which has a known fixed signification, of a precise immediate obedience to be given it: And the vigour of all these laws is in present execution; for, if goods imported from England be, under the covert of law, taken into such a house, and discovered on this fresh pursuit, if concurrence be not given, they may be transported ere next morning to another place; and all nations allow such inquiries at any time, secrecy and celerity being the life of such executions. Justices of Peace give warrants for searching for stolen goods, even in the night-time; and, in England, the excisemen can enter breweries, and break up doors, if refused access at any time; and there is nothing without some inconveniencies attending it, but where the heaviest fall, these must necessarily preponder.——The Lords thought it unnecessary to determine whether concourse might be required at any time of the night, the case before them being only, Whether the Bailie did warrantably in refusing and delaying, when required betwixt seven and nine at night; And the Lords found, in that circumstantiate case he had not obeyed the act of Parliament; for the plurality of the Lords thought, that magistrates might be required to give their concourse at any time, whether by day or night, except from ten to five in the morning, which is presumed to be the usual time all sober people are in bed, and ought not to be disturbed.—The Bailie's second defence was, He was not obliged to give his concourse, because they did not specially condescend on the houses they craved to be searched, neither by designing the place of the town, nor the inhabitant; and they might as well seek a general concourse to search all the houses of the town.—Answered, They condescended sufficiently, that they restricted themselves to two houses; neither might the informer know the name of the master of the family; and though he had, it might be unfit to divulge it, left private notice be sent them to abscond and with draw the goods, which totally evacuates and disappoints the law; and though this may seem to reflect on the magistrates, as supposing them not faithful in executing their laws; yet they being tender to bring their neighbouring burgesses to trouble, it may be more their interest that they be not acquainted with the particular houses.——The Lords found the informers were not bound to

* Fountainhall, v. 2. p. 189. voce Legal Diligence.

describe the houses, inhabitants, or matter, where they craved the search to be made.—3tio, Alleged, He acted bona fide, and, by probable ignorance, seeing the clause of this new act of Parliament was dubious, and he might rationally stumble, especially having the town assessor's advice for him; and, by the 83d act of Parliament 1426, judges are commanded to determine secundum scientias suas, which he did.——The Lords assoilzied the Bailie from the fine of 500 merks imposed by the law, and found his excuse relevant as to bygones; but expected these acts would meet with punctual execution hereafter. See Legal Diligence.

Fol. Dic. v. 1. p. 106. Fountainhall, v. 2. p. 194.