Scottish Court of Session Decisions

Subject_1 PRISONER.
Subject_2 SECT. I.

Power, - Duty, - Liability of Magistrates relative to Prisoners.

Alexander Wilson
v.
The Magistrates of Edinburgh

Date: 8 July 1788
Case No. No 81.

Magistrates found liable for the sums due to an incarcerating creditor, even where the debtor had before his release obtained the cessio bonorum.

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A debtor of Alexander Wilson having been imprisoned in the jail of Canongate, obtained a judgment of the Court of Session, finding him entitled to a cessio bonorum. This judgment was pronounced on 11th March, being the last day of the Winter-Session, and immediatejy after he was set at liberty by the jailor.

An action, founded on these proceedings, was brought by Alexander Wilson, against the Magistrates of Edinburgh, as proprietors of the burgh of Canongate, and responsible for the custody of persons confined in the jail belonging to it; when it was

Pleaded in defence, The obligation of magistrates with regard to the keeping of persons arrested for debt has been partly established by the common law, and partly by the act of rederunt in 1671. But the present claim is incapable of receiving any support either from the one or from the other.

In the action created by the common law, it is necessary for the pursuer to show some actual loss to have arisen from the enlargement of the debtor, which, however, cannot in the present case be done. After the commencement of the vacation, it was impossible to prevent the extracting of the decreet, so that the debtor must have unavoidably obtained his liberty in a few days. Besides, if it had been competent to bring the question under review, it will not be pretended that the creditor could have urged sufficient reasons for obtaining an alteration of the judgment.

Again, in the action founded on the act of sederunt, it is not perhaps necessary for the pursuer to qualify any actual damage to have ensued from his debtor being set at liberty. But this regulation was merely intended to punish magistrates, who, from motives of personal favour, had permitted those committed for debt to go out of prison, without a necessary cause; whereas, in the present instance, the release of the debtor was not occasioned by any indulgence shown to him by the Magistrates, but by the misapprehension of the jailor, who conceived, that in the peculiar circumstances of the case, it would have been unjust to detain him any longer.

Answered, The general presumption of law undoubtedly is, that by means of the squalor carceris, a creditor may obtain payment of what is due to him, either from the debtor himself, or from those who are interested in his enlargement.

And there is nothing in the present case which can give rise to an exception from the general rule, A decreet of cessio, before it is extracted, and still more at a time when, by the forms of Court, it is incapable of being extracted, is of no avail. Although it could not be set aside in the Court of Session, it might have been suspended by an appeal to the House of Lords. At any rate, even during the short space that ought here to have intervened between the determination and the complete execution of it, the liberty of the debtor might have been of such importance to his friends, as to have secured the payment of his debts.

As to the meaning put on the act of sederunt, it is entirely destitute of foundation. It is the magistrates alone who, in the contemplation of law, are the keepers of prisons; and, instead of providing only for the case of a release obtained from motives of personal favour, the words of the regulation are quite general, declaring, that without a warrant from the Privy Council, or from the Court of Session, no prisoner shall on any account be discharged, unless in the particular circumstances therein mentioned.

The Court, considering a creditor to be entitled to demand a rigid confinement of his debtor, during the whole period prescribed by law, pronounced the following interlocutor:

“The Lords having considered the informations for the parties, find the Magistrates of Edinburgh liable to Alexander Wilson for the full sums Contained in the diligence at his instance, in virtue of which Alexander Crichton, his his debtor, was imprisoned in the jail of Canongate.”

Reporter, Lord Henderland. Act. Dean of Faculty. Alt. Buchan Hepburn. Clerk, Menzies. Fol. Dic. v. 4. p. 136. Fac. Col. No 29. p. 47.