United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Ritchi - Appellant v. Magistrates of Canongate and others [1817] UKHL 5_Dow_87 (27 June 1817)
URL: http://www.bailii.org/uk/cases/UKHL/1817/5_Dow_87.html
Cite as: [1817] UKHL 5_Dow_87

[New search] [Contents list] [Printable PDF version] [Help]

SCOTTISH_HoL_JURY_COURT

Page: 87↓

(1817) 5 Dow 87

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session, 1816–17.

57 Geo. III.

SCOTLAND.

APPEAL FROM THE COURT OF SESSION.

No. 5

Ritchie— Appellant

v.

Magistrates of Canongate and others Respondents

June 27, 1817.

LIABILITY OF MAGISTRATES IN CASES OF LIBERATION OF DEBTORS UNDER ACT OF SEDER UNT, 1671.

The magistrates of Canongate, upon a certificate on oath by a physician, that the life of a debtor, confined in their gaol by the Appellant, was in imminent danger, permitted his liberation from the gaol to some house within the burgh, on his giving bonds with two sureties to conform to the conditions of the act of sederunt, 1671, by residing in some house within the burgh, and on no account going beyond the jurisdiction of the same, and returning to prison on recovery of his health, or when required, under penalty of paying the debt. A
Page: 88↓
particular house within the burgh was assigned for the residence of the debtor; but he never was there, and was frequently seen at his house in Surgeons' Square and other places without the burgh, apparently in good health. The Appellant commenced an action against the magistrates for the debt, on the ground that the debtor's residing out of the jurisdiction of the burgh of Canongate was an escape, which made the magistrates liable. The Court below decided in favour of the magistrates; and this decision was affirmed in the House of Lords, both on the general ground that the circumstances were not such as rendered the magistrates liable under the act of sederunt, and also upon certain specialties in this case.

The Lord Chancellor stating, that he would have had some difficulty in saying that the magistrates were not liable on the general ground, if the construction, as to this point, to be put on the act, had not been, in some measure, settled by the decisions in the cases of Forbes v. Magistrates of Canongate, and Fordyce v. Magistrates of Aberdeen in 1792.

Debtor imprisoned.

Petition for liberation under Act of Sederunt, 1671.

Dec. 15, 1808. Interlocutor of liberation by the baillies of Canongate.

The material facts of this case were these:—on the 6th July, 1808, Wight was imprisoned for debt (300 l.) in the Canongate gaol by Ritchie, and after the lapse of the requisite time, Wight commenced a process of cessio bonorum against his creditors. This was opposed; and Wight, after being confined about five months, on the 13th Dec. 1808, presented a petition to the baillies of Canongate to be liberated under the act of sederunt, 1671, which was accompanied by a certificate from a physician, that the life of the prisoner was in imminent danger from the confinement. The physician having sworn to the truth of the certificate, copies of the petition and deposition were served upon Mr. Ritchie; and, no answer or objection having been made, the magistrates, on the 15th Dec. 1808, pronounced an

Page: 89↓

interlocutor of liberation in the usual form, viz.: “The baillies having considered this petition, with the deposition of the physician and execution of service, admit protestation against the aforesaid Mr. Alexander Ritchie, writer to the signet, for non-appearance, and answering the same. In respect of the physician's deposition, grant warrant to the keepers of the tolbooth of Canongate to permit the petitioner's liberation therefrom, to some house within the burgh, for the recovery of his health, pursuant to the act of sederunt, 14th June, 1671, on his lodging with the clerk a bond to restrict and conform himself agreeably to the conditions and limitations of the said act, and to return to prison on the recovery of his health, or when required, under penalty of payment of the debt for which he is detained in prison, as also to indemnify and freely keep the burgh and magistrates, of all damages, costs, or expenses, whatever, anent the premises.”

Bond of caution.

Of the same date, a bond of caution was granted by Archibald Wight, and by John Craw, writer to the signet, and John M'Tavish, writer in Edinburgh, as his sureties. After reciting the aforesaid petition, the deposition of Dr. Mitchell, and the interlocutor of the magistrates, the bond proceeds thus:

“We the said John Craw and John M'Tavish judicially enact, bind, and oblige ourselves and our heirs, jointly and severally, in the burgh court books of Canongate enacted, that the said Archibald Wight shall, during his temporary releasement for the recovery of his health, restrict and conform himself agreeably to the terms and
Page: 90↓
conditions of the said act of sederunt, by residing in some house within the burgh, and on no account going beyond the jurisdiction of the same; and immediately on recovery of his health, or when required, shall return to and surrender himself prisoner within the said tolbooth, under the penalty of forfeiting and paying the debts for which he stands imprisoned and arrested, amounting to sums between, two and three hundred pounds sterling money; as also to indemnify, free and harmless keep, the magistrates and burgh of Canongate, of all costs, damages, or expenses whatsoever, in, by, through, or anent the premises: and the said Archibald Wight enacts and binds himself and his heirs, not only duly to perform the premises on his part, by a strict observance of the conditions and limitations of the said act of sederunt, and returning to prison upon reconvalescence, but also to relieve and freely keep his said sureties, and their foresaids, of all loss and damage whatever in the premises: and all and each of us do hereby subject ourselves to the jurisdiction of the Canongate, and nominate the court-house thereof as a domicile whereat either of us (being for the time resident without the said jurisdiction) may be legally summoned and charged to the performance of the premises or any part thereof.”

Dec. 24. 1808. Interlocutor, finding the debtor entitled to the benefit of cessio.

Wight was accordingly liberated without objection; and ten days after this liberation, viz. on 24th Dec. 1808, he was found entitled to the benefit of the process of cessio honorum by interlocutor of the Court of session. On the 19th of January,

Page: 91↓

1809, Mr. Ritchie applied by his agent, Mr. Grant, and obtained a copy of the bond of caution granted by Mr. Wight and his sureties to the magistrates, on his liberation. When this copy was furnished, the assistant clerk of the Court of Canongate, who is keeper of the prison records, desired Mr. Grant to say, “whether he wished Mr. Wight to be returned to prison;” and told him that a memorial was ready to be presented to counsel for advice on the part of the magistrates. Mr. Grant in reply desired that nothing might be done till he gave notice, and declared that he, on the other hand, would take no step without giving previous notice to the magistrates.

Feb. 1809. Interlocutor reclaimed against.

In Feb. 1809, Mr. Ritchie, having borrowed the caption from the Canongate gaol, reclaimed against the interlocutor in the process of cessio bonorum; and ultimately the cessio was refused, both by the Court of Session and House of Lords; and on the 8th of May, 1809, intimated to the magistrates of Canongate, under the form of a protest, that they had suffered Wight to escape, and were liable in payment of the debt. On the 12th May, Wight surrendered himself, but was not then received, the gaoler not thinking that he had power to receive him without having the caption in his possession. On the 13th May, Mr. Ritchie returned the caption, and Wight was re-incarcerated; but on the 24th May, 1809, he was again liberated in terms of the act of sederunt.

10th May, 1869. Action against the magistrates.

In the mean time Mr. Ritchie, on the 10th May, 1809, raised an action against the magistrates, seting forth in the summons, “that by an act of

Page: 92↓

sederunt of the Lords of Council and Session, dated 14th June, 1671, it is enacted, that hereafter it shall not be lawful to the magistrates of burghs, upon any occasion whatsoever, without a warrant from His Majesty's Privy Council, or the Lords of Session, to permit any person incarcerated in their tolbooth for debt, to go out of prison, except only in the case of parties sickness, and extreme danger of life, the same being always attested upon oath under the hand of a physician, chirurgeon, apothecary, or minister of the gospel in the place; which certificate shall be recorded in the town court books; and in that case, that the magistrates allowed the party only liberty to reside in some house within the town during the continuance of his sickness, they being always answerable that the party escape not, and upon his recovery to, return to prison: and the Lords declare, that any magistrates of burghs, who shall contravene the premises, shall be liable in payment of the debt for which the rebel was incarcerate. That'notwithstanding the said Archibald Wight was so incarcerated in manner foresaid, yet true it is. and of verity, that George Rae, fishhook-maker, Canongate, and Joseph Brown, baker there, baillies of the said burgh thereof, the Right Honourable William Coulter, Lord Provost of the city of Edinburgh, Peter Hill, John Turnbull, Archibald Campbell younger, and Alexander Manners, Esq. baillies of the said burgh, suffered the said Archibald Wight to escape out of prison, without payment of the debt above specified, or a charge to set at liberty to that effect; and that

Page: 93↓

the said Archibald Wight has accordingly, for many months past, being going at liberty in perfect health, and residing without the jurisdiction of the burgh of Canongate; whereby the said magistrates, not only as magistrates, but also they themselves personally, and their heirs and representatives, and also their successors in office, are liable to the said Alexander Ritchie in payment of said debt, interest, and expenses.

And concluding, “that it ought and should be found and declared by decreet of the Lords of Council and Session that the said defenders (Respondents) suffered the said Archibald Wight to escape out of prison, at least permitted him to go out, without payment of the foresaid debt; or a charge to set at liberty, and the, same being so found and declared, the said defenders not only as magistrates, but as individuals, and their successors in office, ought and should be decerned and ordained, conjunctly and severally, to make payment to the pursuer (Appellant) of the foresaid principal sums and interest since due and till payment, &c.”

The truth of the allegations in the summons being denied by the magistrates, the Lord Ordinary, on the 8th July, 1809, ordered the pursuer to give in a condescendance of the facts, which he averred and offered to prove in support of his action; and the following condescendance was accordingly given in.

The Appellant's condescendance.

“1st. That Archibald Wight, late starch manufacturer at Ormiston, was incarcerated at the instance of the pursuer (Appellant) within the tolbooth of

Page: 94↓

Canongate, in virtue of a legal diligence, for payment of the debt mentioned in the libel, upon the 6th July, 1808.

2d. That the defenders (Respondents) allowed the said Archibald Wight, contrary to law, and to the act of sederunt relative to the custody of prisoners, to go out of gaol without payment of the debts for which he was so imprisoned, as is specifically stated in a protest against the defenders, produced in process and here referred to.

3d. That the said Archibald Wight has accordingly for many months past been going at perfect liberty, residing without the jurisdiction of the burgh of Canongate, and has never slept one night in the house appointed for his residence within the jurisdiction of the Canongate.

4th. That the said Archibald Wight has been seen at Portobello, Leith, and other places without the said jurisdiction, in apparently good health: and,

5th. That upon many days the said Archibald Wight was out of the jurisdiction of the magistrates of Canongate; and particularly upon Saturday last, the 16th Dec. 1809, the said Archibald Wight was seen in the Parliament House attending at the bar of the inner house, instructing counsel at the advising of his process of cessio bonorum.”

Evidence.

The Lord Ordinary, on the 6th Feb. 1810, allowed both parties a proof, and witnesses were examined on the part of the pursuer.

Mrs. Greig, in whose house a room had been taken for Wight's residence, deponed, “That she knows

Page: 95↓

Archibald Wight, and that there was a room taken for him by a woman from the Canongate jail, where he was then incarcerated, in the deponent's house: that Wight never took possession, nor ever was in the room taken for him: that the room was kept open for him for five or six weeks: that about three weeks after the room was taken for him, the deponent went to the gaol, where she was informed he was to be that evening, and enquired of him whether or not he meant to keep the room? and why he did not take possession? to which Wight replied, that it was no business of hers whether he possessed it or not; that she would be paid her rent, and that genteelly: that she has never, to this day, received a sixpence for the rent: that she recollects of waiting again upon Wight at his own house in Surgeons' Square, upon two different occasions: that upon the first of these she did not see Wight: that upon the second she went between nine and ten in the morning, and found him in bed: that she got nothing from him, and that she cannot specify at what time these meetings took place, but they were within six months subsequent to the time the room was taken for him.”

John Gow, painter, “recollects dining with Mr. Wight after his liberation, and, as he thinks, very early in the month of January, 1801: that Mr. Wight then received the deponent at dinner in his own house, in Surgeons' Square; but whether Mr. Wight at that time slept there or not the deponent cannot say: that, to the best of his recollection, he left Mr. Wight's house between

Page: 96↓

eight and nine o'clock that evening, and that Mr. Wight was then in his own house: that in spring, 1809, he recollects of being in company with Mr. Wight in a house at the back of the Fountain Well: that this might be in the month of March, or thereabouts.”

Margaret Turnbull depones, “That she recollects seeing Wight in Surgeons' Square after the time he was imprisoned, and that she cannot precisely say, whether it was before or after Christmas that she saw Mr. Wight as above, but that she saw him often.” And James and Walter Lockhart stated the same circumstance.

The Reverend Joseph Robertson depones, “That upon two occasions subsequent to Wight's liberation, on the bill of health, the deponent was in company with him at Morris's tavern, opposite to or at the back of the Fountain Well: that upon the first of these occasions, the deponent left Wight in Morris's: that upon the second they came away together, when Wight told the deponent that he was going home to his own house in Surgeons' Square; and parted from him with that intention: that upon another occasion, also subsequent to Wight's liberation, the deponent met him coming down a small close near the foot of the Cowgate, as from Surgeons' Square: that he knows Wight to have been a second time incarcerated, but that these meetings all took place prior to his second incarceration; and that the two meetings at Morris's happened very soon after his liberation upon the. bill of health: that all these times Wight appeared to the deponent, to be in good

Page: 97↓

health:” and that upon another occasion, the date of which he did not specify, he “met Wight at the foot of the Canongate, opposite to the Abbey, who then told him that he had been at Leith the preceding day; and that if the deponent would accompany him there at that time he would give him a bottle of wine; which invitation the deponent declined, and he did not see Wight at that time leave the Canongate.”

John M'Gregor depones, “That he recollects having met Wight in the High School Wynd, after a liberation which he obtained upon a bill of health, and prior to his second incarceration: that he met him several times in Surgeons' Square, also previous to his second incarceration: that he recollects of meeting Wight in company with Mr. Pattison, near St. Leonard's Hill, also previous to the second incarceration.”

Hamilton Robertson depones to his recollection of meeting Wight “on two occasions after his liberation, once opposite the Fountain Well, and once upon the South Bridge, and of remarking that he was then beyond the bounds.” But adds, that he cannot say how long this was after his liberation.

It was not disputed that Surgeons' Square, the Fountain Well, and South Bridge, were without the particular jurisdiction of the Canongate:but it was remarked that the evidence was defective as to dates, and that for any thing that appeared it might apply to the period between the date of the interlocutor in the cessio, and the reclamation.

The Magistrates gave in evidence the Written

Page: 98↓

proceedings respecting Wight's liberation, the protest against them, and several documents relative to Wight's cessio bonorum, in order to show that Wight's health, after his surrender, was such as rendered it necessary again to liberate him. The borrowing of the caption, By Ritchie, in February, and the other facts, as above stated, were proved by these writings, or were admitted by the Pursuer.

Judgment below for the magistrates.

Appeal.

The cause having come before the Lords of the first division, the Court, on the 6th July, 1813, sustained the defences, assoilzied the defenders, and decerned, and found the pursuer liable in expenses; and, after advising a reclaiming petition with answers, they adhered to this interlocutor. From this judgment the pursuer appealed.

Reasons for the Appellant.

The Reasons of Appeal, given in the Appellant's case, were these:

All the authorities of the law of Scotland are agreed, that a debtor, liberated from prison on account of sickness, remains under the custody of the magistrates; and they are responsible for his custody during that time, and must have him guarded.

Stair's Inst. B. 4. T. 47. S. 22.

Bankton, B. 1 S. 10. s. 198, 202. Erkine, B. 4. T. 3. s. 14.

Lord Stair, in his Institute of the Law of Scotland, says, “It will not be a relevant defence, or reason of suspension, for magistrates suffering prisoners to escape, that they will yet take the party, albeit he be in as good condition as when he escaped, or that upon testificates of physicians they suffered the prisoner, for his health, to go out to take the air, or to go to a private house; albeit in either case there were two to guard him; for the Lords, by act of sederunt, June 14, 1671,

Page: 99↓

prohibited the magistrates of Edinburgh to suffer prisoners to go out without particular warrant, or the magistrates of other burghs, hot far distant, except in the imminency of death. And where such warrant is granted, the magistrates ought to choose the place of the abode, that the same be secure, and guards attending. Like as, they do declare, that if magistrates let prisoners go out upon any other pretence, although they restore them to prison, they shall be liable for the debt; for squalor carceris is an interest of the creditor to cause the debtor to satisfy or to discover his means, which magistrates ought not to prejudge them in.”

That this was the law of Scotland before the act of sederunt, 1671, appears from various decisions of the Court before the act was passed.

Diet. vol. 2. p. 169. Haddington, July 23, 1605.

Nisbet v. Drummond.

Ibid. Dec. 1609, Lord Applegirth supplicant. Gosford, July 14, 1668. Paplay v. Magistrates of Edinburgh.

The following cases are reported by Haddington and Gosford before the year 1671.—“A magistrate setting at liberty a party incarcerate for debt, will not evite payment thereof by re-entering him to prison; because the incarceration is a kind of punishment of his rebellion, and presumeable that thereby he might have been induced to make payment if he had not been eased by being set at liberty.”—“A person in prison being sick, and having the same attested under the hand of a doctor of medicine, was allowed to be transported to a house in the town, upon caution, to be a true prisoner there, and to return to prison upon recovery.”— “A magistrate suffering a prisoner for debt to lie out of the tolbooth, though he was in

Page: 100↓

extremis agens, and died, was found liable for the debt, seeing he ought to have had a warrant from the Lords for that effect. Here it was proved, that formerly they had suffered him to lie several nights out of prison.”

The act of sederunt therefore declared the law, and was intended to put magistrates of burghs against undue laxity in the custody of debtors.

Town of Brechin v. Town of Dundee, 14th July, 1671.

This appears from the act of sederunt itself, and the decision of the Court in a case which occurred at that time, reported by Lord Stair and Lord Gosford, and thus abridged by Lord Kaimes:

“Magistrates of a town being pursued for allowing their prisoner to go abroad frequently out of their tolbooth into the street and taverns, it was found no relevant defence that the prisoner was always guarded; for the Lords were of opinion, that magistrates of burghs have only power to let prisoners come out of their tolbooth, under a guard, in the extreme hazard of their life by sickness, and not without testificates by physicians, or skilled persons, upon oath, bearing the party's condition to require the same, and that without great hazard, they could not suffer delay to make application to the Council or Session.”

The principles laid down by Lord Stair and other authorities on the law of Scotland, have been enforced by the Court in various cases: Fullarton and Kennedy against Magistrates of Ayr, 7th March, 1781; Shortbread against Magistrates of Annan, 8th June, 1790; Gray against Magistrates of Dumfries, 7th December, 1780; Purdie,&c. against

Page: 101↓

Magistrates of Montrose, 29th June, 1786; Wilson against Magistrates of Edinburgh, 8th July, 1788.

It is clear that, in point of fact, Wight was under no custody or restraint. He never went to the lodging appointed for him, and does not appear to have been within the jurisdiction of the Canongate, unless when he visited the jail for his own amusement.

Objection 1st.—That Wight's application on account of sickness was intimated to the Appellant; and he did not oppose it, or insist on a guard.

Answer 1 st.—The custody of a debtor is with the Magistrates, not with the creditor; and as the Appellant gave no consent to his liberation, the responsibility remained with them.

Answer 2 d.—-The Magistrates transferred the debtor to a lodging within their jurisdiction; the creditor had therefore a right to expect that he should be confined in that lodging, and not allowed to go at large, and reside beyond the jurisdiction.

Objection 2 d.—That prisoners who are sick will not be benefited by being removed from prison, unless they are allowed to use exercise, and go freely about.

Answer 1 st.—This doctrine (which is not that of the law of Scotland) would put it in the power of magistrates with the assistance of false certificates, to put an end to imprisonment for debt altogether, under pretext of sickness.

Answer 2 d.—Supposing, but not admitting, that in certain cases on cause specially shown, prisoners may be allowed to take exercise for recovery of their health, there must in that case be a guard, and the

Page: 102↓

debtor must not exceed the precise limits appointed for that purpose, and necessary for his health.

Answer 3 d.—Wight did not take exercise for recovery of his health; but went to taverns, and resided in his own house, beyond the jurisdiction of the magistrates.

Case for the magistrates.

In the case for the Respondents, two cases, those of Forbes and Fordyce, were stated, upon which the Respondents particularly relied; and, as these cases were not reported, the statement is here transcribed at length, together with the observations on the cases cited for the Appellant.

Decisions on the point now in question. Forbes v. Magistrates of Canongate, Jan 31, 1793 not reported.

Alexander Robertson, a prisoner for debt, in January, 1790, applied for liberation, producing merely a certificate, on soul and conscience, by Mr. James Arrot, surgeon, and Dr. Henry Cullen, physician, that, for the preservation of his life, he needed “free air, in a situation where proper care and medicines might be administered.” His petition was answered, and the prayer of it was objected to, on the grounds that by the act of sederunt, the certificate should “be upon oath,” and that “the magistrates should only give liberty to reside in some house within the town,” and with a protest in writing that the creditors did not give any consent even under the conditions of the act of sederunt. These objections were renewed by written minute, when the caution found was intimated, the sufficiency of which likewise was not admitted. But the magistrates “in respect of the attestation, and the certificates of the petitioner's indisposition, granted warrant to the keeper of the tolbooth of Canongate, to liberate the petitioner in

Page: 103↓

terms of the act of sederunt.” In this deliverance they made no special appointment for his residence within the burgh; and it proceeded upon no deposition or examination of any medical person in their presence, and in the face of written objections repeatedly urged upon these grounds. Robertson, however, chose his own lodgings, and changed these from one house to another in the Canongate; but, during nine months, only frequented these lodgings when he had company to entertain there; and was seen daily in the most public places of resort, such as the Parliament-house, Leith races, &c.; and went at perfect freedom to Gogar, Inveresk, Bonnington, and other places within a forenoon's ride of Edinburgh; and commonly spent his afternoons in drinking parties, and his nights out of the limits of the burgh of Canongate. While he was going on in this course, the pursuer raised his action against the magistrates, on the 17th of August, 1790. But this measure produced no step on the part of the magistrates, or change in the habits of Robertson. All this was fully proved. Confessedly too, during the whole nine months, at the close of which this course of dissipation terminated in his death, the magistrates had taken no charge of him whatever. But upon the other hand it was likewise admitted that the incarcerating creditors took as little; and did never apply for his reincarceration, or for any inquiry as to the state of his health.

Nevertheless it was strenuously contended by the pursuer in that case (as in the present), that the magistrates were bound to guard the prisoner constantly, and keep him in custody at some house

Page: 104↓

within the burgh, during the whole period of his liberation, and that their failure to do so amounted in law to an escape. No question was ever more fully argued. The interlocutors of the Lord Ordinary assoilzieing the defenders were reclaimed against. On advising the first petition with answers, a condescendance was ordered. The deliverance on this condescendance with answers “repelled the objection as to the certificate not being upon oath, but allowed a proof.” Both parties reclaimed, and the Court, upon these papers and minutes of debate, “ordained the parties to prepare interrogatories either by mutual agreement, or at the sight of the Court, to be transmitted to the clerks of the most considerable royal burghs in Scotland, respecting what has been the general practice thereof in liberating persons confined for civil debts, in terms of the act of sederunt, labouring under dangerous diseases, whether such liberations do proceed upon certificates granted by their medical attendants upon soul and conscience, or upon oath taken before the magistrates.”

By agreement of the parties, these inquiries were extended to many other burghs, and were made by interrogatories in these terms:

“1. In liberating a prisoner confined for debt in the case of sickness, what evidence do you require of the state of his health? Send copies of the form of that certificate from your records.”

“2. Do you assign the prisoner any particular place of residence during the continuance of his indisposition? Or upon what terms do you grant his liberation.”

Page: 105↓

“3. Do you take any security or bond of caution from the prisoner at his liberation? What is the nature of the security? Transmit a copy thereof.”

“Do you take any charge of, or make any inquiries after, the conduct and behaviour of the prisoner during his being out of prison? Do you place him under any guard?”

“5. Has any alteration taken place in the manner and form of certificates, or part of the procedure, of late years? If so, point the same out, and transmit copies of both old and new forms.”

“6. Do you make any difference, or in any manner of way vary your proceeding, certificates, or bond, where there is opposition on the part of the creditor to the liberation of the debtor, or where there is no opposition?”

Memorial for Defender, p. 10.

Answers were obtained on all of these points, and a proof at large was also taken. With respect to the form of the certificate, it appeared that the Court itself had recently before appointed liberation in the case of a Mr. Rankin from Falkirk, on a certificate of Mr. Alexander Wood, surgeon, upon soul and conscience, and that the practice of the burghs was various. As to residence, one half of the burgh answered that they “were not in use to fix any house for the residence of the debtor.” In the other half it appeared that they sometimes pitched upon the debtor's own house, “whether within the burgh or not;” sometimes upon other houses within the burgh. All without a single exception answered, that it was “not the practice to keep any guard on, or take any charge of, the debtor after he was liberated, or to make anny

Page: 106↓

inquiry into his conduct;” and no fewer than thirty cases were stated to illustrate the practice of the burgh of Canongate itself.

With respect again to the actual conduct and habits of Robertson, the proof fully established the whole particulars which have been already stated upon the case, which was fully pleaded in mutual memorials. The Court sustained the defences and assoilzied; and a long and able petition against this interlocutor was refused without answers.

The Respondents have had access to notes, from which it appears that the distinguished Judge then in the chair was of opinion, that “the form of certificate had in practice been various, and that it would be wrong in the Court to put too narrow and rigid a construction upon the act of sederunt; for the power of the Court to introduce such a regulation, and to throw the load off themselves upon the burghs, might be doubted.” His Lordship indeed observed, that the chief “difficulty of the case arose from the circumstance that the agent of the creditors had required the certificate to be sworn to, yet this was overlooked;” but he also remarked that “the situation of magistrates is hard, and the act of sederunt ought to be re-considered. The oath required by the act of sederunt must for the most part be extra-judicial, i. e. ex parte, as intimation is not necessary, nor is any precise form of an oath prescribed. The practice of the Canongate is material. Prisoners for debt are oftenest confined there. Either a new act of sederunt should be made, laying down the forms more precisely, or a clause introduced in the

Page: 107↓

proposed act of parliament for burgh reform, or new bankrupt act. The prisoner ought to be removed to a certain house named; and if country air is necessary, why may not a house the country, as near to the burgh as possible, with a garden or certain other grounds, be fixed upon, with concurrence of the sheriff or substitute? And if caution cannot be found to the extent of the debt, let him and his friends at least pay or find security for indemnifying the magistrates of the expense of a guard.”

The Lord Justice Clerk (M'Queen) inclined to think, that squalor is “out of the question, and confinement within the burgh not necessary; as the very purpose of the liberation is, that the prisoner may recover health. It is enough to find sufficient security to recommit him when required. The hardship on magistrates would be intolerable if otherwise.”

“Lord Henderland concurred, and likewise founded his opinion upon the circumstance that the creditors did not apply to recommit him.”

Lord Esgrove and a majority of the other Judges were of the same opinion; but Lords Dreghorn, Craig, and Abercromby, thought that the magistrates had failed in their duty, “particularly as to the neglect of the oath, and not appointing a place of residence, and in taking no step after the summons was executed.” These, however, it will be recollected, are circumstances as to all of which the Respondents, in the present case, have acted most correctly.

Fordyce v. Magistrates of Aberdeen, 1793, not reported.

The second and only other case which, so far as

Page: 108↓

the Respondents have discovered, was ever tried on this point, was that of Dingwall against the Magistrates of Aberdeen, likewise decided in the year 1793, after that of Forbes. It was reported to the whole Court by the Lord Justice Clerk, Ordinary, upon a proof and informations drawn by Lord Newton, and Lord Meadowbank, then at the bar. From the proof, it was established that Ross, a butcher in Aberdeen, the debtor, imprisoned in the tolbooth of that burgh, had been liberated without the consent of Dr. Fordyce, his incarcerating creditor; that he went home to his own house and trade during his liberation; and, upon one occasion, was at Inverugie in Banffshire, thirty-three miles from Aberdeen; upon another occasion had been at Overhills in the parish of Belhelvie, six miles from Aberdeen, and had staid two days there attending a cattle market; and that he was habitually and constantly, not only free from any guard or restraint, but living and employed as he would have been when at large in perfect health. Nevertheless, the Court, upon the same considerations which dictated the judgment in the previous case of Forbes, not only assoilzied the magistrates of Aberdeen, but found them entitled to expenses of process.

It will not be overlooked in this case, that the matter at present in question is the meaning of an act of sederunt, or rule of Court. The judgments in these two cases were precisely upon the same point which is at issue in the present case, and given in favour of the defenders, in cases stronger than the present for the pursuers. It was peculiarly the

Page: 109↓

province of the Court of Session to interpret the meaning of their own rule of court. From the words of the act of sederunt, and from the practice which, it appears from these cases, had been had under it, it seems to be abundantly clear, that these cases were well decided.

But even if the decisions in these cases had been more doubtful, and had introduced a practice consonant to them, the Respondents conceive that the magistrates of royal burghs were entitled to look to these cases, as having given the true interpretation to the act of sederunt; and that if a pursuer, as in the present case, had sustained no injury whatever, the courts of law would have hesitated to give judgment in his favour in a case so highly penal, where magistrates had only acted in conformity to decided cases.

But the Respondents submit that it is not necessary for them to argue their case thus: they found upon no new practice introduced since these cases were decided, but upon the true sense and meaning of the act of sederunt, and the practice which all the burghs have had under it, downwards to this day.

On the other hand, the Appellant founded upon several cases, decided before the date of the act of sederunt: Nisbet v. Drummond, Haddington, 23d July, 1605; Lord Applegirth, supplicant, 1st Dec. 1609; and Poplay v. Magistrates of Edinburgh, 14th July, 1668. In the first of these cases it was found that, if a magistrate liberated a person confined for debt, it did not excuse the magistrate that the party re-entered himself to prison; this had no

Page: 110↓

relation to a case of liberation for ill health. In the second of them, a liberation was permitted on account of bad health, the party being ordered to be “transported to a house in the town, upon caution to be a prisoner there, and to return to prison upon recovery.” In the third of them, the magistrates of Edinburgh appear to have been found liable for a debt, having released the debtor in extremis, who died out of goal.

In these cases there is nothing hostile to the argument maintained by the Respondents; besides, the matter has since been regulated by the act of sederunt.

Town of Brechin v. Town of Dundee.

The Appellant founded also upon the before-mentioned case of the Town of Brechin v. Town of Dundee, which occasioned the making of the act of sederunt, particularly upon that part of the case which mentioned, “that magistrates of burghs have only power to let prisoners come out of their tolbooths under a guard, in the extreme hazard of their life by sickness.” It is sufficient also upon this, to refer to the act of sederunt itself; when it regulates the mode of enlarging prisoners on a bill of health, it says nothing of the necessity of a guard.

Stair, B. 4. lit. 47. § 22.

The Appellant also founded upon a passage in Lord Stair's Institute on this point, in which his Lordship says, that “the Lords, by act of sederunt, 14th June, 1761, prohibited the magistrates of Edinburgh to suffer prisoners to go out without particular warrant, or the magistrates of other burghs not far distant, except in the imminency of death: and where such warrant is granted, the

Page: 111↓

magistrates ought to choose the place of the prisoner's abode, that the same be secure, and guards attending.” The Appellant stated that this doctrine of Lord Stair's was the more worthy of attention, as his Lordship had been appointed President of the Court of Session recently before this act of sederunt was made.

It is not necessary to say any thing of the authority which is due to the opinions of that most eminent person; but in several particulars he does not state this act of sederunt accurately: it says nothing as to the “magistrate of Edinburgh, or the magistrates of other burghs not far distant,” to whom, in his Lordship's view, the act of sederunt had been confined; nor does it say any thing of the “place of the prisoner's abode being secure, and guards attending.” It is sufficient as to this to say, that universal practice has explained the act in this respect.

Bankton, B. 1. tit. 10. § 198.

The Appellant also referred to a dictum of Lord Bankton on this subject. His Lordship, treating of a prisoner liberated on a bill of health, says:

“And if he is returned to prison on his convalescence, the magistrates are free; but if he escape they are liable for the debt, because they ought to have had a guard upon him to prevent his escape: and this is settled by act of sederunt.”

It appears strange that the Appellant should have relied on this passage; in the first part of it, it is clear that his Lordship considered that there was no escape if the person liberated was “ returned to prison on his convalescence.” According to Lord Bankton's view, the magistrates in this case “ are

Page: 112↓

free.” It cannot be disputed that Wight was returned to prison even before his convalescence. With regard to the latter part of it, which mentions that “the magistrates ought to have had a guard upon him to prevent his escape,” and that “this was settled by act of sederunt,” it appears that his. Lordship had implicitly followed Lord Stair as to this: it has already been noticed that the act is silent as to this point of a guard.

The Appellant also founded on a passage in Erskine, B. 4. tit. 3. § 14. on this subject, to which the Respondents also implicitly subscribe.

Fullarton and Kennedy v. Magistrates of Ayr, Fac. Coll. 7th March, 1781.

The Appellant also referred to a case of Fullarton and Kennedy v. the Magistrates of Ayr, where in a circumstantiate case (very indistinctly stated in the report) the magistrates had been found liable for the debt of a person liberated on a bill of health. It is impossible to discover upon what grounds that case was decided; but it seems clear that there was one good ground for decision against the magistrates, the not remanding the debtor to prison on his recovery. The facts of the present case were very different.

The Appellant also founded upon the cases of Gray v. the Magistrates of Dunfries, 7th Dec. 1780; Purdie and Co. v. the Magistrates of Montrose, 29th June, 1786; Wilson v. Magistrates of Edinburgh, 8th July, 1788; and Shortbread v. Magistrates of Annan, 8th June, 1790; but none of these have relation to the case of liberation on a bill of health, but to ordinary cases of imprisonment. As such they can have no application here.

The Appellant also founded upon certain cases

Page: 113↓

relating to liberation of debtors on account of ill health, but of a class totally different from the present. These were the cases of Charles Stewart v. the Magistrates of Edinburgh, 20th Nov. 1799, and Macqueen v. the Magistrates of Dundee, in 1798 and 1799, (not reported). These cases relate to the question, what degree of freedom the magistrates of burghs can be compelled to allow to debtors liberated on account of ill health. It is obvious that this is a matter of extreme delicacy. In the first of these cases, the magistrates had sent a person liberated for ill health to the house of the captain of the town-guard, where he had a private room; in the other case Macqueen had been unable to obtain a cessio bonorum, and the magistrates of Dundee having reason to suspect that he meant to leave the country, though obliged to liberate him, guarded him in a private house. In neither case did the Court interfere to give explicit directions to the magistrates.

The Appellant also referred to the cases of Lindsay, 27th Nov. 1797; Donaldson, 6th Feb. 1798; and Mackenzie, 9th March, 1799, for the purpose of showing what species of imprisonment will entitle a person to obtain a cessio bonorum. The Respondents do not find it necessary to enter into these cases; they have been well decided, and have no relation to the present case.

The Appellant also urged, that the magistrates of Canongate themselves had put the same construction on the act of sederunt that the Appellant contended for; that they had assigned him a particular house to reside in; and that the bond of caution

Page: 114↓

stipulated that he should reside within the burgh, and not go out of the jurisdiction. These points, however, relate to the question what the magistrates are entitled to require from the prisoner before undertaking the responsibility of his liberation on a bill of health. But the question of their liability must be judged of upon other and very different grounds; upon the meaning of the act of sederunt, the usage had under it, and the authority of decided cases, all which the Respondents consider to be clearly with them.

Mr. Leach and Mr. Abercromby (for the Appellant.) The act was made in consequence of the case of the Town of Brechin v. the Town of Dundee, 1671, and was declaratory of what the law was, and intended to explain more distinctly the magistrates' duty, without doing away that restraint which was a means of recovering the debt. The Judges however thought themselves bound by the two cases of Forbes and Fordyce. The decision in the case of Forbes was most extraordinary, for the Court appeared to have thought that the magistrates might give any liberty to the prisoner, preventing only his escape out of the kingdom: and this was what they considered as the meaning of the act. In the present case two of the Judges were for the defendants, on the ground of the act of sederunt, independently of the authority of the cases; two of the Judges were for the pursuer, and one Judge (the President) was for the pursuer on the principle, but thought that as a Judge he was bound by the two cases. The President was astonished at the decision in the case

Page: 115↓

of Forbes, and; among his able observations on that case, asked why, if the magistrates had no more to do than to prevent the prisoner's escape out of the kingdom, they took him bound to reside within the burgh? If there were specialties in the case, the Judges had not decided upon them, but entirely on the general principle. The meaning of the act was clear, that the prisoner should reside within the burgh; and on the evidence it was an undoubted fact that Wight had never resided in the place appointed for him within the burgh. They gave no answer to that, but that the non-residence might have taken place during the six weeks from the time of the interlocutor in the cessio, and the time of the reclamation by the Appellant. This was a singular-statement, because then the sureties were discharged; and how came they to call upon him to render himself to prison, and he to do so? But there was no necessity to reason from this inference; for Wight was not entitled to his discharge under the interlocutor till extract of the decreet, which however never was extracted, as it was opposed with success. It was true that the Appellant's agent was asked whether he wished that Wight should return to prison, and he answered, no: but did that excuse the manner in which Wight was at large out of prison? As to the promise to give notice, that was fulfilled by the protest; and as to the borrowing of the caption, the letters of caption were required in order to be stated in the action; and it was not necessary that the magistrates should have them for the purpose of bringing the prisoner back again, as he was bound under the obligation to return when

Page: 116↓

called upon. The true question was, whether it was the meaning of the act of sederunt that magistrates should be at liberty entirely to release prisoners on the ground of ill health. The law on this subject was the same before as it was after the act of sederunt, but a laxity had taken place in practice, which occasioned that act. The same laxity however seemed to have taken place lately, which appeared to be sanctioned by the case of Forbes, a decision made in direct contradiction to the act. (Lord Eldon, C. When the Court made an act of sederunt, and then declared in these cases what the meaning of its own act was, was it for a gaoler to say, No, you don't mean that?) That was a circumstance which rendered it of great consequence to appeal this case.

Sir S. Romilly and Mr. Simpson (for the Respondents). There were two views to be taken of this case: 1st, on the general principle; 2d, on the specialties. The Court below had decided on the general question, not thinking it necessary to advert to the specialties. If the judgment of this house should turn on the general principle, the present case was most important, not only with respect to the liberty of the subject and the responsibility of magistrates, but with regard to the state of the general law of the land. It was for their Lordships to determine, whether, where a point of law was laid down in a long train of decisions, and acted upon for a long course of years, it was not to be considered as settled till that point came to be decided by the House of Lords, leaving it uncertain

Page: 117↓

what the law was in England as well as in Scotland. Fytche v. Bishop of Lond, was the only case in which it had been said here that the law was unsettled till settled by the House of Lords. There was no case but that, in which this House had acted on such a principle; wand the decision had been received with great surprise by the whole profession, and considered as a solitary instance not likely to occur again. (Lord Eldon, C. Lord Thurlow and Eyre, Ch. J. said they did not mean to contradict the decisions. The way in which they argued was, that there was no such train of decisions.) It was certainly too strong to say, that the decision of the House proceeded on that principle. But here the case of Forbes had been decided more than twenty years ago; and it had been acted upon uniformly till the year 1813, when it was questioned in this case. The Court too there decided upon its own act of sederunt. Then what their Lordships were called upon to say was, that the decisions of the Court below, interpreting their own act of sederunt, were of no authority till sanctioned by this House, which was to tell them the meaning of their own act. The long acquiescence in these decisions was equivalent to confirmation by this House; and the decision in the case of Forbes went further than the present, for it did not appear that there a certificate on oath was required, or that a house was appointed. They must argue that, if the prisoner was out of the jurisdiction one yard (that is, out of the precincts of the town, for the act did not there mention the word burgh, and town had no clear meaning, and was not a nomen juris in Scotland), the magistrates were

Page: 118↓

liable for the debt. Attending then to the terms of the act they had to consider what the situation of the magistrates would be, if their construction were to prevail. By the act, the magistrates were bound to enlarge the prisoner upon evidence that his life would be endangered by confinement. And it signified nothing that the sickness was produced by the intemperance of the prisoner himself, if, in fact, his life was in imminent danger. Besides, there was no evidence that the magistrates were in any way apprized of his being out of the burgh. It would be a most extraordinary law which would compel the magistrates to set the prisoner at liberty, and then to be answerable for his escape. The act was of a penal nature, and ought to be construed strictly. The magistrates were not to permit the prisoner “to go out of prison, except in case of the party's sickness and extreme danger of life, &c. and that in that case the magistrates allow the party only liberty to reside in some house within the town.” How could it be said that in this case the magistrates allowed him any other liberty? They did not allow it. A man did not allow what he had no notice of; and the magistrates had no notice of the debtor's non-compliance with the conditions till two days before the commencement of the action. All that the act required was mentioned in the bond. They did not contend for a guard; and Bankton said, that if the debtor returned to prison the magistrates were free, and here he did return. The Judges in the case of Forbes took the precaution to get answers from the magistrates of different burghs, as to what had been

Page: 119↓

done under the act; and the answers were that they had not been in the the habit of employing any guard, or making any inquiry, whether the debtor complied with the conditions. It must therefore be the business of the creditor to observe him, and to give notice to the magistrates that he did not comply with the conditions of his release, and had forfeited his title to the indulgence. The case of Fordyce followed, in which it was proved that the debtor was thirty-three miles from prison. The law therefore on the general principle had been settled, and it was no longer open to this House to question it. But secondly, though the opinion of the House should be against the Respondents on that point, yet the Appellant was precluded by his own acts from succeeding in his action. The debtor was at large on the 19th of January; and then the Appellant's agent, when asked whether he wished that Wight should be returned to prison, desired that nothing might be done till he gave notice, and promised that he would take no step without giving previous notice to the magistrates. All complaint was thus waived until notice; and immediately upon notice by the protest, Wight was called upon, and did surrender himself; and the gaoler refused to take, him, as the Appellant had taken away the original caption, which by the law of Scotland it was necessary for him to have as his authority for keeping the debtor in custody.

Acts of sederunt were now with great propriety limited to matters of judicial form, and any alteration in the law must be made in another manner. All that the creditor could require was that the

Page: 120↓

debtor should be confined on his convalescence, and that during his release he should reside near enough to be subject to the observation of the creditor. The bond and caution were the security of the magistrates, with which the creditor had nothing to do. They might relax if they chose. All the creditor could require was that the debtor should be imprisoned on convalescence. By the act, the resirdence must be limited to the town, which was a loose word, as town was not a nomen juris in Scotland. It was not the meaning that the debtor should not breathe the air of the country. If at any time of the day he was within the limits, the word reside was complied with. The sole criterion of escape was, the debtor's not returning on convalescence; and in no case were the magistrates liable if he did return on convalescence; the essential point was the sickness, and, in the cases cited on the other side, that circumstance was wanting. The precedents, since the time the act was made, were decidedly in favour of the Respondents. The evidence amounted only to this, that Wight was, during the period of his release on account of ill health, in some places out of the burgh, particularly in Surgeon's Square, which was however within the jurisdiction of the magistrates of Edinburgh, the superiors of the Canongate.

Mr. Leach (in reply). Their Lordships were called upon to give a general construction to the act, but were not called upon to reverse a train of decisions. There was only one case to be reversed; and that was one where the Court, instead of looking at the act, sent to the gaolers to ascertain the practice.

Page: 121↓

The act said there must be a certificate on oath; that case decided that the magistrates might discharge without oath. The act said that the debtor must reside in a house within the burgh; that case decided that the magistrates might permit him to go any where. The object of the act was to remedy the mischief of too much indulgence. The magistrates were restrained from suffering persons in their custody to go out of prison except only in ease of sickness and extreme danger of life; and if they granted this indulgence except with the conditions prescribed by the act, they were to pay the debt. This was the true principle: it was not an obligation upon, but a permission to the magistrates to grant this indulgence upon certain conditions; and what were the conditions? The magistrates were “to allow the party only liberty to reside in some house within the town during the continuance of his sickness, they being always answerable that the party escape not.” But now it was said that the magistrates might allow the party to go wherever he pleased within the kingdom. Where was the hardship that the magistrates should pay the debt, in case the party did not comply with the conditions? They might appoint a guard at the prisoner's expense, or take proper security, which they did in this instance. Even their own interlocutor showed that the debtor ought to be confined to a particular house within the burgh, and that if he was out of the burgh it was an escape. They did assign him a particular house within the burgh, but their keeper did not confine him there. He never was there. It was all mere mummery. It was

Page: 122↓

impossible to look at the act without being convinced that this one judgment in 1793 was in direct contradiction to it. (Lord Eldon. C. Does it appear what the law of Scotland is on this subject, where there is a recapture before action brought?) The action commenced with the protest on the 10th May, 1809, and the debtor was not then in prison. They said indeed that they could not then imprison him, as the Appellant had taken the caption from them. But there was nothing in the objection; for the debtor was taken bound to return when required; and at any rate the caption, though in the hands of the Appellant, might be considered for this purpose as in the hands of the gaoler, and might have been actually in his possession if necessary. The debtor was never called upon to return till after the protest had commenced the action. With respect to the specialties they were not considered in the Court below as affecting the case. The debtor had been at large ten days before the interlocutor in the cessio, and the escape had been perfected before that judgment. But at any rate a debtor was not entitled to his discharge under it till the decreet was extracted, and so it had been decided. Then they said that, after the 19th January, he was out by the Appellant's permission. But where was the permission? The agent asked for a copy of the bond and caution, and found that the debtor was bound not to leave the jurisdiction. That being the case, the agent said he did not wish that Wight should be returned to prison, and promised to take no step without notice. That proceeded on the supposition that the conditions were to be complied with, and did not

Page: 123↓

discharge the magistrates from the performance of their duty under the act of sederunt.

Judgment.

June 27, 1817.

Lord Eldon, (C.) This is an appeal in which it is contended that the magistrates of Canongate are answerable to the Appellant for a debt due to him from a person of the name of Wight, in consequence of their having allowed Wight to escape out of their custody. I do not mean to state the circumstances of the case at length; but the Court below thought that under the act of sederunt, 1671, the Respondents were not liable; and yet I should have some difficulty upon that point, if the construction of the act had not been in some measure settled by prior decisions.

It appears that, before the act of sederunt was made, magistrates were, by law, bound to great diligence in the confinement of prisoners; but by the humanity of some, and the negligence of others, the practice became a good deal relaxed; and in consequence of that circumstance this act of sederunt was made.

Act of sederunt, June 14, 1671.

“The Lords considering, that albeit by the law magistrates of burghs are obliged to detain in sure ward and firmance persons incarcerate in their tolbooths for debt; yet hitherto they have been in use to indulge prisoners to go abroad upon several occasions, and it being expedient that in time coming the foresaid liberty taken by magistrates of burghs should be restrained, and the law duly observed, therefore the said Lords do declare, that hereafter it shall not be lawful to the magistrates of burghs upon any occasion whatsomever,

Page: 124↓

without a warrant from his Majesty's Privy Council, or the Lords of Session, to permit any person incarcerate in their tolbooth for debt, to go out of prison, except only in the case of the party's sickness and extreme danger of life; the same being always attested upon oath under the hand of a physician, chirurgeon, apothecary, or minister of the gospel in the place” (the persons holding these characters being therefore made judges of the fact); “which testificates shall be recorded in the town court books. And in that case, that the magistrates allow the party only liberty to reside in some house within the town, during the continuance of his sickness; they being always answerable that the party escape not, and upon his recovery return to prison. And the Lords declare that any magistrates of burghs who shall contravene the premises, shall be liable in payment of the debt for which the rebel was incarcerate.”

Your Lordships perceive, therefore, that, upon such an attestation of sickness and extreme danger of life, the magistrates are to allow the prisoner liberty to reside in some house within the town, during the continuance of sickness, they being answerable that he escape not.

Wight had been incarcerated in the Canongate gaol, and, in consequence of the certificate upon oath of a physician, that his life was in imminent danger, had been liberated on the security of himself and two sureties, that Wight, during his temporary releasement for the recovery of his health, would restrict and conform himself agreeably to the terms and conditions of the said act of sederunt,

Page: 125↓

by residing in some house within the burgh, and would on no account go beyond the jurisdiction of the same, and that he would return as soon as he recovered his health, or when required: and the Appellant insists that the magistrates, in their proceedings with respect to Wight, contravened the provisions of the act of sederunt.

The construction of the act settled by the cases of Forbes and Fordyce.

Setting aside the specialties of the case, it appears that Wight was liberated, and remained out of custody for about nine months; and that during that period he had been spending his time sometimes in taverns, at other times in the gaol, and had been sometimes seen out of the jurisdiction of the burgh. Now, whatever opinion might have been entertained as to the proper construction of this act if the point had come before us twenty-two or twenty-three years ago; yet now, when the construction to be put upon it has been settled, by the Court which made the act, in two previous decisions, and has been acquiesced in since 1793, it is rather too much to say that the judgment in this case ought to be reversed upon that ground. Your Lordships will observe that this is not an act of parliament, but an act of sederunt, an act of the Court itself; and, in 1793, two cases, depending on the construction of this act, came before the Court, Forbes v. Magistrates of Canongate and Fordyce v. Magistrates of Aberdeen. And there the persons liberated paid as little attention to the obligations of their bonds as Wight is alleged to have done here; and yet, in these cases, the Court, construing its own act, held that the magistrates were not liable; and when the magistrates have been so

Page: 126↓

instructed by the Court twenty-two or twenty-three years ago, and have acted on these instructions ever since, it seems to be too much now to depart from that principle. Upon that ground, therefore, and also upon the special circumstances of the case, independent of the general principle, it appears to me that the judgment in this case ought to be affirmed.

Both on the general ground and on the special circumstances, the judgment to be affirmed.

With respect to the special circumstances, the Appellant knew that Wight was out of prison; he allowed him to obtain his cessio bonorum without opposition; ^* he himself took away and kept the letters of caption for some time: and one strong fact is, that when the Appellant, by his solicitor, Mr. Nathaniel Grant, applied for a copy of the bond of caution granted by Wight and his sureties to the Magistrates of Canongate upon his enlargement under the act of sederunt, and when the keeper of the prison records desired Mr. Grant to say “whether he wished Mr. Wight to be returned to prison,” Mr. Grant in reply “expressly desired that nothing might be done till he gave notice, and declared that he on the other hand would take no step without giving previous notice to the magistrates.” And yet it appears that he raised this action before he gave the magistrates notice that he wished that Wight should be re-incarcerated.

But on the general principle it is impossible to place the magistrates of burghs in this state, that

_________________ Footnote _________________

* Meaning, that no objection to the cessio was made till after Wight had been found entitled to it by interlocutor of 24th December, 1808. That interlocutor was afterwards reclaimed against, and the cessio was ultimately refused both by the Court of Session and House of Lords. ( Vid, ante vol. ii. p. 377.)

Page: 127↓

they should be liable for an escape when acting in conformity to the construction which the Court put upon its own act; and if any alteration in the mode of proceeding in cases of this nature is necessary, it is more fitting that it should be made by act of parliament operating in future, than to say that those who were acting on the law as laid down twenty-two or twenty-three years ago by the Court of Session without question till this time, should be held liable for the debt as in case of an escape. It appears to me therefore that upon both grounds the judgment ought to be affirmed.

Judgment affirmed.

1817