Scottish Court of Session Decisions

The Lord Ordinary (M'Laren) on 2d December 1881 passed the note and granted warrant for the liberation of the suspender. The following opinion was delivered by his Lordship in giving judgment:—“In this case the complainer seeks liberation on the ground that having found caution in an application for a meditatione fugæ warrant, and the cautioner having presented him at a diet of Court, he was then incarcerated on the original warrant until he should find caution for his appearance at subsequent diets.

“It has long been settled that the cautioner is entitled to be freed from his obligation by producing the debtor at a diet of Court and protesting that he has fulfilled his obligation. The debtor is then liable to be imprisoned as in meditatione fugœ if he fail to find caution a second time. The question is, how this liability is to be enforced—whether by the Judge on a special application for this purpose, or by the creditor at his own hand.

In the present case the creditor has proceeded on the assumption that the original warrant of imprisonment was a continuing warrant, and, accordingly, on an interlocutor being pronounced discharging the cautioner he caused the debtor to be imprisoned on that warrant without obtaining the authority of the Sheriff. In support of the regularity of this proceeding he founds on the case of Forgie v. Stewart and M'Donald, in which it was decided that a debtor who had been liberated under the Act of Grace might be again incarcerated on the registered decree and charge without a new fiat being obtained.

I am of opinion that the cases are not parallel, and that the judgment in the case of Forgie was not intended to be applied to a case like the present, where the imprisonment is not in execution of a decree, but is awarded in the exercise of a discretionary power, and for the purpose of enforcing the appearance of the debtor judicio sisti. Where imprisonment is to follow on a registered charge the debtor cannot avoid the diligence by finding security for payment. Imprisonment is the consequence of his disobedience to the charge, and he can only escape that consequence by payment. Liberation under the Act of Grace only suspends the operation of the warrant until the creditor chooses to comply with the obligation which the law imposes on him of alimenting his prisoner.

But in the present case the warrant is for the incarceration of the debtor until he shall find caution judicio sisti.

Having found caution, he has satisfied the condition, and is no longer in contumacy. If the cautioner should thereafter withdraw, no doubt further security must be found, but this is in consequence of a new state of circumstances, to which the original warrant is inapplicable. And, in my opinion, the creditor's proper course in these circumstances is to apply to the Judge for a new warrant of imprisonment until new caution shall be found. This was the course followed in the case of Douglas v. Wallace, 5 D. 338, where it is stated that the Lord Ordinary entertained doubts as to the competency of granting a new warrant without a fresh proof of the fact of the debtor being in meditatione fugæ, and reported the matter to the Court. The question in controversy was as to the necessity of ascertaining whether the debtor still contemplated withdrawing himself from the jurisdiction, and it was held that in such a case further inquiry was unnecessary. But it does not appear to have occurred to anyone engaged in the case that the creditor could proceed upon the original warrant after caution had been found and the debtor presented. On the contrary, the report bears that the Court ‘instructed the Lord Ordinary to grant warrant of incarceration of new.’

It is, I think, in the highest degree expedient that all proceedings affecting personal liberty should be regulated by fixed and invariable forms, and when the form of proceeding has been fixed, as in the present instance, by a considered judgment of the Supreme Court, I should not think it consistent with sound practice to sustain any equivalent form, or to dispense with any of the preliminaries which have been considered essential to the assertion of the creditor's right to coerce his debtor by restraining his person. I am therefore of opinion that the proceedings complained of are not according to law, and that the complainer is entitled to liberation.”

The respondent reclaimed.

The following further facts were stated at the bar:—Extract of the Sheriff Court decree was issued on December 1; the complainer was charged on December 2, but in consequence of a blunder in the charge there was a renewed charge on the 8th; warrant of imprisonment was applied for on the 16th and obtained on the 19th, but the complainer having been liberated on the 2d under the Lord Ordinary's interlocutor, had, it was stated, left for America.

Parties were heard before the First Division on 17th December, and their Lordships without making formal avizandum advised the case on the 21st.

The reclaimer argued—A new warrant was unnecessary. The original warrant was not exhausted by the finding of caution; on the contrary, its continuing force was necessarily presumed— Douglas v. Graham and Wallace, Lord Justice-Clerk Hope's opinion, 5 D. 342. The books of practice did not state a practice, but gave an interpretation—an erroneous interpretation, it was contended—of the cases they cited. As to what the practice had been since the date of these books, there was no evidence.

Replied—The finding of caution exhausted the original warrant. That was the practice.

Authorities— Stevenson v. Chisholm, March 11, 1812, F.C.; Carrick v. Martin, July 26, 1822, 1 Sh. App. 257; Douglas v. Graham and Wallace, December 17, 1842, 5 D. 338; Muir v. Barr, February 2, 1849, 11 D. 487; Forgie v. Stewart and M'Donald, July 20, 1876, 3 R. 1149; M'Glashan's Sheriff Court Practice (Barclay's edit.), p. 396; Tait's Justice of the Peace (4th edit.), 317; Barclay on Fugæ Warrants, p. 84.

At advising—

Lord President—The question raised by this reclaiming note has certainly never been in terms decided before, and of course it is a question of importance, because it is one which affects the liberty of the subject. But I cannot find any reason for differing from the Lord Ordinary; on

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