Suspension found not to be sufficient authority for magistrates set a debitor at liberty.
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In an action betwixt Gemmil and Wallace against the Bailies of Glasgow, for payment of a sum addebted to the pursuer by his debtor, who, for not payment, was committed to their tolbooth in ward, and was thereafter put to liberty by them; it was excepted for the Bailies, that they did no wrong to put the debtor to liberty, because, before he was suffered by them to go to liberty, he had suspended the pursuer's decreet whereupon he was warded; so that the debt being so suspended, and this suspension seen by the Bailies, they had no ground whereupon to detain him any longer, but might lawfully enlarge him. This exception was repelled, seeing the suspension gave no warrant to put the party to liberty, without which, and that they, upon that warrant, had been orderly charged to do the same, they could not, at their own hand, have put him to liberty; for the suspension might have been discussed against the debtor, and so the creditor greatly prejudiced; and they were not judges to consider of that suspension, neither ought to have done any deed prejudicial to any of the parties before it had received a decision, or that they had received a specific warrant for their proceeding, or had been charged to put him to liberty by the Lords' letters.
Clerk, Gibson.
Fol. Dic. v. 2. p. 414. Durie, p. 201.
*** A similar case was decided, 25th June, 1642, Whyte against the Bailies of Wigton, No. 16. p. 7793. voce Jus tertii.
