A prisoner is not entitled to the benefit of the act of grace, who is imprisoned till he perform a palinode, and does not offer caution for performance.
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Patrick Urquhart obtained decreet against Alexander Will before the Commissary of Aberdeen, decerning Alexander Will to pay him 50 merks Scots in name of damages and expenses for having defamed him; and also ordaining him to appear in the church of Fraserburgh to ask pardon, as is usual in such cases.
Alexander Will being charged with horning upon this decreet, and incarcerated within the tolbooth of Stirling, he applied to the Magistrates for an aliment, in terms of the 32d act Parl. 1696, which they modified to 3s. 6d. Scots per day; and ordained Patrick Urquhart to pay the same under the usual certification.
Patrick Urquhart offered a bill of suspension of this sentence of the Magistrates; and pleaded, that the act of Parliament was only in favour of prisoners for civil debts, that is, such debts as arise ex contractu or quasi contractu, and therefore could not be extended to this debt, which arose ex delicto; as was found 28th November 1738, William Leslie, supplicant, No 128. p. 11810. For, with respect to such debts, it is a maxim, qui non habet in ære, luat in pelle; and prisoners for criminal causes are expressly excepted from the benefit of the act.
2do, The other part of the decreet being ad factum præstandum, the act could not extend to it; for it was in Alexander Will's power to have obtempered that part of it long before his incarceration.
Answered for Alexander Will, That the exception in the act respects only the case of criminals in order to trial, or those who are incarcerated by a sentence in modum pænæ; neither of which is his case; he being incarcerated by the ordinary form of personal diligence for a debt, and therefore ought to have the benefit of the act, from whatever cause the debt arose. And as to that part of the decreet appointing him to ask pardon in the church of Fraserburgh, he was willing to enact himself to obtemper it, if sufficient time be allowed to him for that purpose.
“The Lords found, that the act of Parliament does not take place in commitments for delicts; but, in respect that Alexander Will offered to obtemper the Commissary's decreet, found, that Patrick Urquhart ought either, on Alexander Will's enacting himself under the penalty of L. 5 Sterling, to obtemper the said decreet as to the palinodea, to set him at liberty, or otherwise to aliment him.”
Act. ——.Alt. Rob. Macintosh.
Fol. Dic. v. 4. p. 141. Fac. Col. No 95. p. 145.
