United Kingdom House of Lords Decisions

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* Opinions of Judges:—

Lord President (Campbell).—“This is an action against magistrates for not having duly confined a prisoner.

1. The first ground is, that he was not imprisoned until near 24 hours after being delivered into the hands of the provost. No detention during the night. The prisoner was left entirely to himself from about 10 o'clock at night, when he went into his bed room, till next morning at breakfast, when provost came again to the inn. No guard or other precaution.

If kept in private custody, which may be allowed for a reasonable time, the prisoner must be watched and guarded. Whereas Mr. Armstrong was at full liberty for 10 or 12 hours. It is not enough to say that he did not go away, for he might have done so if he pleased, and was not in custody at all during that time.

It is of no consequence that the magistrates were not charged to detain him. The provost's receipt for his body was equivalent. It was of no consequence whether this was at the hour of six or at the hour of ten o'clock; and no matter what conversation the provost held about time of committing him to prison. The messenger did his duty, and left it to the provost to do as he pleased afterwards.

This ground, therefore, for subjecting the defenders (magistrates) seems to be conclusive, and not affected by the proceedings in the cessio bonorum.

2. Ground. The privilege of Open Jail, as explained by practice at Annan, is illegal. Law does not require that a debtor should be closely confined to this or that particular apartment in prison, but certainly requires being locked up within the prison walls, so as that the prisoner shall not, by merely opening the latch of a door, go out into the street if he pleases.

Had the outer doors of the prison been kept locked through the day as well as the night, or had he been locked into an inner apartment, when there was a necessity of opening the outer door, and using the court house, or other outer apartments, no harm would have been done. A prison may be so constructed as that a court house, under the same roof, shall occasionally be used as part of the prison, and occasionally not.—But here Mr. Armstrong was allowed himself to use the court room when it was quite open, and the outer doors unlocked, to give free ingress and egress to suitors and others. Allowing him to sit as judge, and pronounce judgments in prison, was highly indecent. In fact, he was not then in prison, but in the court house when it was not a prison; and he was at all other times, from morning to night, at liberty, because there was no locked door upon him either above or below; and even in the night time he might have gone out at the window of the court house, upon which there were no iron bars nor guards without.

No local practice can sanctify this, being against the law of the land. The practice at Dumfries different; for the magistrates take care to have a broader security to indemnify them in all events, whether he goes out of prison or not. But those who grant such a cautionary, are not perhaps aware of their danger.

The practice of the burgh of Prestwick, where the prisoner keeps the key, and forfeits his freedom if he comes out. This may be a good security, but it is not legal imprisonment.

The late case of the magistrates of Edinburgh, who were found liable, though the prisoner had obtained cessio bonorum, the decree not being extracted. The rules of law cannot be got over in such cases.

But a separate question occurs here, whether by the transaction in the cessio bonorum, the pursuer did not virtually give up her plea of illegal imprisonment? She had actually stated to the Court that Mr. A. was not legally imprisoned. This she ought to have stuck to; but, upon a compromise, she received £320 to pass from the objection, and to admit that he was in legal durance. This seems to bar her personali exceptione from recurring to that plea in the present shape, especially as the present action is subsidiary, and if she prevails, she is bound to make over her claim against Mr. A. to the magistrates. She ought therefore not to have consented to his liberation, but given them an opportunity of detaining him in prison.

This brings the cause back to the first point, and I doubt if it can be affected by the proceedings in the cessio, for it does not appear that the pursuer was then in the knowledge of Mr. Armstrong's situation during the first night, and supposing the fact to have been known, yet if he was afterwards legally a month in prison, this was enough for the cessio.

It ought to be inquired into, what right the pursuer has to the bill in question, for it was originally the money of Hunter of Clerkington and his creditors.

Even as to the second point, I doubt, upon consideration, if it be a bar to the pursuer's present plea, that she withdrew her opposition to the cessio. She was not bound to defend at all against the cessio. She might have betaken herself at once to her demand against the magistrates; and it is so much the better for them that she has got payment of so much of the debt.”

Lord Hailes.—The imprisonment was illegal in both respects (points.)

Lord Monboddo.—“No law requires that a debtor should be immediately imprisoned. If he had made his escape from the public house, the magistrates would have been liable, but not otherwise. As to the other objection, it is not necessary to confine a prisoner to any particular room. He may have the liberty of the whole prison.”

Lord Swinton.—“Of first opinion,” (President Campbell's.)

Lord Justice Clerk.—“The magistrates, as keepers of the prison, have no judicative powers. Their powers are merely ministerial. No apology afforded here. The provost ought to have committed him immediately. Duresse of imprisonment depends on the compulsion.”

Lord Rockville.—“Of the same opinion.”

Lord Gardenstone.—“The interlocutor is well founded. The act of Sederunt 16 February, speaks only of escaping out of prison. ( N.B. This subjects them, even where there is a legal imprisonment, and an escape by violence, unless there be a particular precaution used by locked fast doors, besides watching. Vide also act 1701. Close imprisonment discharged.)”

Lord Henderland.—“There was no imprisonment here at all. Courts must be held with open doors; and if the prisoner was allowed free liberty to hold courts, it cannot be said he was properly imprisoned. In order to this, there must be a restraint both on the body and the mind.”

Lord Eskgrove.—“The custody of the messenger was sufficient imprisonment, without actual commitment. There is no act of Parliament inflicting this penalty. See the other act of Sederunt. (N.B. This explained by decision in case of Breck in Dict. t. 2. p. 169.)”

Lord Monboddo.—“Ought not to inflict penalties without act of Parliament or act of Sederunt.”

Lord Dreghorn.—“Difficulty from bond, which was a compulsitor. I think the interlocutor should be altered so far on the second point—Whether it be a virtual discharge to her plea of illegal imprisonment, by withdrawing her appearance in the cessio?”

Lord Justice Clerk.—“I agree with the general doctrine. But Lord Bankton carries it too far. Must not discharge the principal; but why should she be obliged to keep him in prison. Must I aliment him upon the act of grace? She may say I have good men bound to me. This case still less difficult: for here she does not liberate, but only gives up opposition.”

From Lord President Campbell's Session Papers, 1viii.