John Boyle, Writer to the Signet, v. Bailies of Hamilton
Date: 8 July 1714 Case No. No 121.
Form of proceeding upon the act of grace.
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In the subsidiary action at the instance of John Boyle against the Magistrates of Hamilton, for unwarrantably setting at liberty Walter Gilchrist, incarcerated in their tolbooth by virtue of a caption for payment of L. 450 Scots, annualrent and penalty;
Answered for the defenders; It appeared by an instrument in process, that the prisoner complained to and demanded from them the benefit of the act of Parliament 1696, intitled, ‘act anent the aliment of prisoners,’ and made faith that he was not able to aliment himself; and, by another instrument, that his complaint, and making faith, was duly intimated to the pursuer, by showing him the first instrument, and he required to aliment the prisoner or consent to his liberation; and, by a third instrument, that full ten days after this intimation to the pursuer, the prisoner required the defender to set him at liberty, in terms of the act of Parliament, in regard the pursuer had offered no aliment; whereupon the defenders thought themselves warranted to dismiss the prisoner.
Replied for the pursuers, 1mo, None of these instruments bearing any intimation to the pursuer, by the Magistrates or their procurator, or by any person in their name, or requiring him in their name to aliment the prisoner, but only being in the name of the debtor, cannot afford a defence for the Magistrates to bring them within the terms of the act. 2do, Though the intimation by the debtor to the pursuer were sufficient, yet the intimation of the instrument of another notary, bearing the prisoner's offering his oath that he was not able to aliment himself, and craving the benefit of the act, and that the bailie had taken his oath accordingly, being only a notary required for that effect by the debtor, and not by the Magistrates, and not bearing that the bailies had found him in the terms of the act, and without producing any one judicial act by the Magistrates appointing requisition to be made to the pursuer to aliment, could be no legal certioration to the pursuer. For though a notary's instrument makes faith in things which fall under his office, yet as to the judicial acts of a court, which are proper to the clerks of that office, and expede in another form than the instrument of a common notary, they signify nothing. So this instrument might have certiorated the pursuer of the prisoner's requiring the benefit of the act, but was not to be regarded as to his deponing, or what he had deponed, that being only proper to be instructed under the clerk of court's hand, or producing the principals. And suppose the instrument could be held as probative, yet what is narrated therein to have been done could never oblige the pursuer to offer alimenting. Because, though the instrument doth bear the oath, yet it doth not bear any order of the Magistrates thereanent, or their finding the prisoner in the terms of the act. It is true, on giving the oath, the Magistrates are at liberty to require the creditor, but he can never be in mora till he advise the oath and intimate so to him. 3tio, There was no intimation to the pursuer previous to the taking of the prisoner's oath, which should have been done, that he might be present and heard as a party principally concerned; as bills of suspension, or for liberation, upon juratory caution, must, before passing, be previously intimated to the creditor.
Duplied for the defenders, 1mo, Law never required magistrates of burghs to leave their charges, and go personally to the several corners of the kingdom to make such intimation. It must then be sufficient that they send to the creditor-committer authentic instruments taken upon the indigent person's complaint and making faith, and that the creditor be thereupon required to aliment or consent to the prisoner's liberation, as was done in this case. The defenders can appeal to the general custom of the nation, if such intimations are not negotiated by the prisoners themselves, or for them, they being the persons most concerned. Nor hath the creditor any prejudice, he being duly certiorated. 2do, Is not the instrument of intimation to the pursuer as authentic and probative as any other writ which could have come from the Magistrates? and they were not bound to go personally. The act does not require any cognition or trial of the prisoner's poverty; it is enough, says the law, ‘that any prisoner shall be found so poor as he cannot aliment himself, and shall complain and make faith that it is so.’ This is all the trial, and all the proof that the law requires, the prisoner's own complaint and making faith, which is most consequential to the design of the law, viz. to afford a speedy remedy ventri qui non patitur moram. If a cognition of poverty were requisite, it were easy for an industrious creditor to throw in such objections as the prisoner should starve, and need no remedy before his poverty could be tried. 3tio, The act doth not require intimation to the creditor before the prisoner make faith, nor hath any prejudice thereby; seeing thereafter he must be required, and the prisoner continue ten days, during which time the creditors may consider whether he will aliment or not. And the debtor's making faith in this manner, is no such judicial act as can exclude the creditor from condescending upon any particular fund belonging to the prisoner, and demanding a right thereto, this being juramentum delatum by law, and not by the creditor; in order to aliment, or a temporary releasement, and not to liberate from the debt.
Triplied for the pursuer, 1mo, The defenders should remember they are not to make laws, but to execute them; and here the law directs its intimation to be by the Magistrates, which was not done. And this was a necessary solemnity, because though the debtor should require an aliment, and the creditor neglect to give it, yet if the Magistrate be willing to take burden of the aliment upon himself, he may continue the debtor in prison, and while he makes no intimation to the contrary, he is understood to acquiesce under that burden, and the creditor is in safety not to interpose. The Lords have always strictly observed the law in matters of citation, whereof intimation is a kind. 2do, All that was intimated to the pursuer was an instrument of a notary reciting the bailie's procedure in taking the debtor's oath; whereas there ought to have been produced to the creditor either the principal deposition, with the bailie's interlocutor advising his oath, or a judicial act extracted thereon.
The Lords having considered the instrument mentioning the prisoner's offering his oath that he was not able to aliment himself in prison, and craving the benefit of the act of Parliament, and the bailies their taking his oath accordingly, together with the instrument intimating and exhibiting the said former instrument, personally, to the creditor, sustained the defences proponed for the Magistrates, and therefore assoilzied.
