Archibald Campbell, Merchant in Edinburgh, v. Gilbert Ramsay, Bailie in Kelso
Date: 26 November 1736 Case No. No. 5.
Whether the penalties in the act 1701, reach other cases than those which are therein particularly enumerated?
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The said Archibald Campbell set out from Edinburgh to London, along with Mr. Joseph M'Kenzie; but, when they came to Kelso, an information, signed by Quarter-master Stewart, &c. was given in to Mr. Ramsay as Bailie of that place, setting forth, That Campbell had clandestinely carried away M'Kenzie from his wife and family; and that he had likewise prevailed upon him to carry off several writs and evidents of his estate; therefore praying a warrant to detain Campbell until he should find bail not to carry M'Kenzie away with him, and to answer to a competent Court for what he had already done.
In consequence of this information, the Bailie granted a warrant, in virtue whereof, Campbell was incarcerated; but, upon finding bail, he was liberated. After which, he brought an action against Ramsay for wrongous imprisonment, wherein the Lords found his proceedings illegal and oppressive. Campbell then insisted for the penalties in the act 1701.
Pleaded for the Bailie: That this case does not fall within the statute; seeing wrongous imprisonment, in the sense of that law, is no other but imprisonment without a warrant expressing the cause for which the party is committed, or the refusing to admit to bail in cases not capital, or the undue delaying of trials, as is more particularly mentioned in the act, which is likewise evident from the preamble; whereby it appears the Legislature had nothing in view but to correct abuses in the form of commitments, or in the setting at liberty.
Answered for the pursuer: There is no doubt the statute intended to give a remedy to certain particular abuses; such as commiting a person without any warrant of commitment, &c.; but, though the law expressly guards against these particulars, yet the general scope thereof is, to protect the liberty of the subject by restraining all manner of undue or unwarrantable commitments; and, it being impossible to enumerate particularly every case against which a remedy is intended, therefore it subjoins a general clause, “extending the pains to all cases of confinement, not either consented to by the party, or inflicted after trial by sentence;” whereby every imprisonment not authorised by law is comprehended.
And, as the present case falls not within any of the exceptions specified in the statute; so, of consequence, the pains thereof must reach it, as the same has been found to have been illegal and oppressive.
The defender replied: The words of the clause referred to, shall be extended to all confinements, imports no more, but that all the provisions, &c. shall take place in every confinement, though it was to one's own chamber; and the exception subjoined thereto points out that the clause refers to commitment without a warrant expressing the reasons thereof, and to no other delinquency; because, in these excepted cases, where either the party consents, or imprisonement is inflicted, by sentence after trial, there is no need of a signed information containing the, reasons of imprisonment; therefore it cannot be construed to extend the statute to cases which are not contained therein, or to the penalties of the law where there is no contravention.
The Lords found, That this case did not fall under the act of Parliament anent wrongous imprisonment.
