David Clark v. Alexander Johnston and the Procurator-Fiscal of Mid-Lothian
Date: 7 December 1787 Case No. No 135.
How far a person imprisoned for non-payment of a fine to the private party, and to the public prosecutor, is en-to the benefit of the act of grace?
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The Justices of the Peace of the county of Mid-Lothian, before whom a prosecution had been brought by Johnston against Clark, for an assault and battery, “fined and amerciated Clark in L. 6 Sterling; L. 3 whereof to be paid to Johnston, and the other L. 3 (after deduction of expenses), to the procurator-fiscal; and ordained the defender to find caution to keep the peace for one year, under the penalty of 200 merks Scots.” Having failed to pay and perform what this sentence ordained, Clark was incarcerated in the prison of Canongate; and, soon after, he applied for the benefit of the act 1696.
The Magistrates having “found the prisoner entitled to no aliment,” he presented a bill of advocation, in which it was stated, that a fine or damages, though resulting ex delicto, were nevertheless a civil debt, and the imprisonment in question, it being for that cause, such as by the express terms of the statute entitled the complainer to the benefit claimed. To this plea was opposed the judgment of the Court in the case of Macleslie, 23d November 1738, No 128, p. 11810, where it was found, that all damages arising ex delicto, were comprehended under the exception of the statute respecting “prisoners for criminal causes.” whom it declares “to be in the same state as formerly.”
The Lord Ordinary on the bills reported the bill and answers to the Court, who were unanimously of opinion, that the precedent in the case of Macleslie ought to be departed from; and that damages, though ex delicto, awarded to a private party, were, in the sense of the statute, “a civil cause of imprisonment.”
Some, though not a majority of the Judges, thought that the fine decreed to the procurator-fiscal was to be viewed in the same light. As to “the caution for keeping the peace,” there was no doubt entertained of the borough being bound to aliment the prisoner while confined on that account.
In consequence of the opinion of the Court, the Lord Ordinary pronounced this interlocutor: “Refuses the bill; but remits to the Bailies of Canongate, with these instructions; 1mo, That they find, that if the private party detain the complainer in prison for payment of the three pounds awarded to him, he must aliment him in prison while he is so detained; 2do, With respect to the forty shillings of expenses, that they find, that if the procurator-fiscal shall detain Clark in prison for payment of that sum, he shall be obliged to aliment him in prison while he is so confined; and, 3tio, With respect to the one pound of fine, independent of the expenses foresaid, that the procurator-fiscal shall be at liberty to detain the complainer in prison till that sum be paid, without being obliged himself to pay him aliment while so detained.”
Reporter, Lord Alva.Act. Solicitor General.Alt. J. Anstruther, jun.
Fol. Dic. v. 4. p. 141. Fac. Col. No. 10, p. 18.
