Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

George Banes
v.
The Bailies of Culross

Date: 14 February 1670

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In a subsidiary action pursued against the Bailies, for suffering one Henry Bennet, who was their prisoner for debt, to escape out of the tolbooth; and therefore craving that they should pay the debt;—It was alleged for the Magistrates, that they could not be liable for the debt, because the prisoner being a miserable person, having nothing of his own to maintain himself, he was still kept in prison, except when he was suffered to go to the hospital, where he was allowed his dinner, and another time to see his dying child, who had no body to attend it; and at these times there was a keeper ordained to attend him; so that immediately when the pursuer took instruments of his being at liberty, he was re-incarcerated, and kept in prison until he died there.

It was replied, That the Magistrates had no power to grant any such liberty; and that it was sufficient that the pursuer had taken instruments that he was abroad and out of prison; seeing squalor carceris is a punishment for bankrupts, appointed by the law, which cannot be disposed with by inferior magistrates without making of themselves liable for the debt; as was decided by the Lords, March 27, 1623, in a case, Smith against the Magistrates of the Town of Elgin, where the Magistrates were found liable upon that ground of law.

The Lords, notwithstanding, did sustain the defence, and assoilyie the Magistrates; because that the dispensing with the prisoner to go abroad being for most necessary causes, and the prisoner being attended by a keeper, who did return him to prison in as good a condition as he was in, so that the pursuer could allege no prejudice. They found, that such dispensations could be no ground to make the Magistrates liable, where, in effect, the prisoner was still under custody; and that the cause of enlargement was upon the account of humanity and charity: And found, that the two cases did not quadrate in several circumstances.

That same session, within a few days, the like was decided,—The Town of Brechin against the Magistrates of Dundee,—upon this ground, That they had suffered one Dundass, their prisoner, to go to the fields, and cross the water of Tay in a boat: Notwithstanding whereof, this allegeance was found relevant,— That they offered to prove that he never went abroad but for his health, or necessary business, but with a keeper or guard, which was granted for his health by the advice of physicians; and when he crossed the ferry, it was in the Town's own boat, with a guard, and was never suffered to land in Fife's side; but that day, and all other days that he was suffered to go abroad, he was returned to the tolbooth, and was never one night out of prison. Which being the general custom of the Burgh of Edinburgh, and other towns, the Lords found it relevant to liberate the Magistrates from the debt.

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