Power, - Duty, - Liability of Magistrates relative to Prisoners.
Andrew Gray v. The Magistrates of Dumfries
Date: 7 December 1780 Case No. No 76.
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In an action against the Magistrates of Dumfries, for not receiving and incarcerating a prisoner for debt, duly presented to one of their number by a messenger, it was
Pleaded in defence, 1mo, The Town of Dumfries being the head borough of a border county, where debtors attempting to escape from the one country to the other are daily apprehended, it had been their immemorial custom to require the creditor-incarcerator to fix a domicil within the borough, at which intimation might be made, in terms of the statute 1696, c. 32. “Anent the aliment of Poor Prisoners.” And this demand not having been complied with in the present case, the Magistrate, who refused to receive the prisoner, was justified by the practice of the borough, however erroneous it might be; See Consuetude, Sect. 3.
2do, The prisoner was a notour bankrupt: he had no heritable estate: his moveable subjects were under sequestration, and payment could not have been operated by the squalor carceris. The pursuer, therefore, has suffered no damage by the supposed culpa of the Magistrates, and, of course, can have no claim against them on that head, Erskine, Book 3. tit. 1. §. 14. Late case, Gillies contra Walkers, see Appendix.
Answered, Did such a practice, as that alleged by the defender, really exist, it would be very unnecessary and improper. It is, however, sufficient to observe, that the law supposes that, by the squalor carceris, payment may be obtained; and this is the foundation of ultimate personal diligence. It is not the part of a Magistrate to retard the execution of that diligence, upon any pretence. If, In breach of his duty, he does so, he must answer for the consequences.
The Court, without entering into an investigation, either of the alleged practice, or of the other circumstances, were of opinion, that the Magistrate, in refusing to aid the diligence of the law, was culpable, and therefore adhered to the judgment of the Lord Ordinary, which was,
“Repels the defences, and finds the defenders liable in the contents of the bills pursued for.”
Lord Ordinary, Braxfield.Act. MacLaurin.Alt. Crosbie.Clerk, Menzies.
Fol. Dic. v. 4. p. 136. Fac. Col. No 6. p. 12.
