A person imprisoned till he perform an act in his power cannot demand the benefit of the act of grace.
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William Turner, notary in Birse, having intromitted with the means of one Middleton, by virtue of a testament, afterwards found null, and being pursued by Ross of Tillisnaught to refund the money, and decreet being obtained against him, he is thereupon imprisoned in the tolbooth of Brechin; and having required the Magistrates either to modify an aliment to him, (in regard he made faith he was not able himself), or else to liberate him, in terms of the act of Parliament, 32,1696, they declined; whereon he gave in a complaint against them and Tillisnaught. To which it was answered, That he was not in terms of that act of Parliament, which was only conceived in favours of poor debtors who were incarcerate for debts and sums of money which they were naturally incapable to pay; but he was imprisoned for not exhibiting and producing the bonds and other writs of Middleton's executry, which he acknowledged, by his oath produced, were in his own hands. And this being conditio potestativa, which he could purify when he pleased, the act could never protect him, obstinately and maliciously to refuse what was in his power. The Lords, finding the grounds of imprisonment not being a debt, but a fact prestable by himself, they refused to modify any aliment, or to set him at liberty till he first exhibited the papers he had in his hands; for they considered, that the Abbey is made a sanctuary for debtors; yet, if any be decerned for exhibition of papers, they have no privilege; but the Bailie of the Abbey may expel them, till they obey the will of the charge, and produce the papers.
Fol. Dic. v. 2. p. 174. Fountainhall, v. 2. p. 533.
