Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.

Cunningham
v.
Alexander and Hogg

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When a messenger apprehends a person, he has right to carry him to prison, but no right to detain him or carry him any where else. But, should it so happen, that, betwixt the time of apprehending him and of incarcerating him, a bill of suspension should be presented, a sist obtained, and intimated, or a sist be intimated, obtained on a bill before apprehension; the question is,—What must the messenger do?

This point was fixed, 1st August 1775, Cunningham against Alexander and Hogg; when the Lords found, That, after a messenger has apprehended a person upon a caption, he may, notwithstanding of a sist upon a bill of suspension, whether obtained before or after the apprehension, and intimated, proceed to incarceration.

The point had been decided differently, 27th July 1710, Lamb against Cleland, observed by Forbes, and in the Dictionary, voce Suspension.—(But see Fount. 18th November 1707, Edmonston.) But, in this case of Cunningham, it appeared that, in several later cases, the Lords had gone contrary to that decision, which was a single one, and had found that a messenger, after apprehending a debtor, acts properly in not liberating him from confinement, and even in incarcerating him, notwithstanding of a sist intimated to him as said is; for they consider the apprehension of the messenger to be the imprisonment, and the moment when liberty ends, imprisonment begins.

The cases cited were M'Intosh of Borlum against M'Pherson, decided March 1759; Beaty against Graham, in Lord Elchies' Manuscript, decided 29th July 1726; and M'Intosh against Dawson, decided 15th November 1734, also observed by Lord Elchies.

See ACT 1696.