Scottish Court of Session Decisions

Subject_1 BONA ET MALA FIDES.
Subject_2 SECT. III.

Ignorantia Juris.

John Lamb, Dyer in Edinburgh, Supplicant,
v.
James Cleland, Messenger, and Thomas Gibson, Apothecary there

Date: 27 July 1710
Case No. No 16.

A person was in the messenger's hands before a sist was procured or intimated. The messenger proceeded after intimation to put him in prison. Freed as well as his employer from expences, propter probabilem ignorantiam juris.

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John Lamb having complained upon James Cleland and Thomas Gibson, for contempt of the Lords' authority, by incarcerating the complainer, upon a caption against him at the instance of Thomas Gibson, after intimation of a sist upon a bill of suspension:——The Lords found the incarceration unwarrantable; and therefore assoilzied the complainer from expences to Gibson the creditor. Notwithstanding that he, the complainer, was in the messenger's hands before the sist was either procured or intimated: And it was alleged in answer to the complaint, That a messenger's touching one, and keeping him prisoner in his hands, has all the legal effects of actual imprisonment; in so far as such a prisoner could not be effectually released upon a suspension, without a charge to set at liberty; more than one could be set out of prison without such a charge. Whence it is, that sists upon bills of suspension run ordinarily thus, Sists Execution, &c. unless the party be in the messenger's hands. But though the commitment of John Lamb to prison, after intimation of the sist of execution, was not warrantable—The Lords found the Messenger, or his employer, not liable to pay any expences to him, upon the account of his incarceration, in respect they had a probable ground for their mistake.

Fol. Dic. v. 1. p. 106. Forbes, p. 436.