Power, - Duty, - Liability of Magistrates relative to Prisoners.
Robert Gordon v. Andrew Mellis
Date: 24 January 1786 Case No. No 79.
The temporary enlargement of a person imprisoned on a meditatione fugæ warrant, falls not under the act of sederunt 1671.
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A debtor of Gordon's was imprisoned in consequence of a warrant obtained against him as in meditatione fugæ. Mellis, the jailor, having permitted the prisoner to go at large for a short while, but without any necessity, he was sued by Gordon in an action, founded on the act of sederunt of 14th June 1671.
The pursuer pleaded, This act of sederunt, which declares, “That magistrates of burghs, who shall permit any person incarcerated for debt to go out of prison, except in extreme danger of his life from the confinement, shall be liable for the debt,” is applicable to the case in question.
Answered, The object of imprisoning for a debt already constituted, is to compel payment by means of the squalor carceris; and when a debtor so imprisoned is unnecessarily enlarged for ever so short a period, without his creditor's consent, the latter being so far deprived of his legal compulsatory, is no doubt entitled to ample indemnification. But the purpose of this imprisonment is merely to secure the prisoner's appearance in judgment, which the liberty given him has no tendency to endanger. Of consequence the act of sederunt cannot relate to circumstances like the present.
The Lord Ordinary having decerned against the defender,
The Court altered that judgment, and assoilzied the defender.
Lord Ordinary, Hailes.Act. Corbet.Alt. Maconochie.Clerk, Menzies.
Fol. Dic. v. 4. p. 136. Fac. Col. No 249 p. 382.
