Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRISONER.
Subject_3 How far a person imprisoned for nonpayment of a fine to the private party and to the public prosecutor, is entitled to the benefit of the Act of Grace.

David Clark
v.
Alexander Johnston and William Scot

Date: 7 December 1787

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[Faculty Collection, X. 18; Dictionary, 11,818.]

Justice-Clerk. Here there is a fine to the private party; this is for damages, and is a civil debt: how can the party be refused aliment on such a debt.

Henderland. A fine ought not to have been imposed when the party was not able to pay. The judgment was wrong. I do not see how the county ought to pay aliment in consequence of so wrong a judgment. [He did not advert that no cognisance could be taken as to the merits of the judgment, for they were not before the Court. The only question was as to the effect of that judgment.]

Justice-Clerk. I spoke only as to the consequences of a fine in name of damages to the private party. But fine for delict; I can make no distinction between a procurator-fiscal and the king's advocate. Suppose the king's advocate were to pursue, and a fine to be imposed, with imprisonment until payment, would he be obliged to aliment the criminal? The law will not require this; and the case does not fall within the statute 1696. It is asked, “Must then the man starve?” God forbid; he must be alimented, either by the burgh or the county. The burden must lie where it did before the Act 1696, which has not provided for this case.

Eskgrove. Decisions are various and hardly reconcilable. The fine given as damages to the private party may be considered as a private debt; the Act 1696 contrasts what is due to an individual, and what is due to the public. An individual is not bound to commit for damages any more than for a private debt. But this does not apply to the procurator-fiscal.

Braxfield. The case of M'Lesley in 1738 is in point; but I doubt as to the principles of that decision. There is no such thing in the law of Scotland as the starving of a criminal. Before the Act 1696, the boroughs and counties were liable for the aliment of persons committed on account of debts, as well as of delicts. The prisoner was considered as a rebel, and could not be freed without letters of relaxation. But the Act of Parliament thought this was unreasonable, and provided a remedy for the borough. When a man is imprisoned, convicted, and then imprisoned in modum pœnæ, the boroughs and counties must aliment him: but when the fine is awarded, in name of damages, he to whom that is awarded must aliment; and the same also is the case as to the procurator-fiscal, so far as his interest respects expenses.

Justice-Clerk. This is against the Act of Parliament.

Monboddo. The fine is a sum of money; and he who is entitled to receive it must aliment.

On the 7th December 1787, on a Saturday, with a thin or weak bench, and during the absence of the Lord President, The Lords gave judgment, in terms of Lord Braxfield's conclusions, in opposition to every precedent.

Reporter, Alva.

N. B. This was the first time at which I felt the consequence of our being deprived of the President. I may live to see many more examples of the like nature. Deus providebit!