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SCOTTISH_HoL_JURY_COURT
Page: 401↓
(1814) 2 dow 401
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS.
During the Session, 1813–14.
53 Geo. III.
SCOTLAND.
APPEAL FROM THE COURT OF SESSIONS.
No. 31
v.
WRONGOUS IMPRISONMENT.— STAT. 1701, CAP. 6.
In an action for wrongous imprisonment on the statute of 1701, cap. 6, the date marked on the petition praying to be admitted to bail is not to be taken as conclusive evidence as to the time when the petition was actually delivered; but evidence may be given to show the real and actual time of the delivery, though contrary to the date marked on the petition itself.
The act of 39 Geo. 3, cap. 49, made no alteration in the act of 1701, cap. 6, as to the time within which, in bailable offences, the bail must be cognosced; the only alteration being as to the amount of bail that may be demanded: and the statute of 1701, cap. 6, not being in any degree to be repealed by inference or implication.
Thus, where, in an action on the statute of 1701, cap. 6, for wrongous imprisonment, an undated petition for liberation on bail was alleged in the summons to have been delivered on July 2, and no deliverance given upon it till the 9th, which day was marked in the petition, and therefore, as had been contended, must be taken as the day on which it was delivered, the Pursuer offered to prove, by evidence written and parole, that the petition was presented on the 2d; and the House of Lords—in opposition to a judgment of the Court of Session—held, that evidence as to the true
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time of delivery might be received, in contradiction to the date marked on the petition.— Lord Eldon (Chancellor) also—in opposition to the opinion of a majority of the Court of Session—intimating a clear and decisive opinion, that the act of 39 Geo. 3, cap. 49, made no alteration in the statute of 1701, cap. 6, as to the time within which prisoners for bailable offences must be liberated on bail; and stating, that he could not conceive how it ever came to be imagined that the act of 39 Geo. 3 made any alteration in that particular, or to be thought that so important a part of so important a statute could be repealed by inference.
Several important points being involved in the cause, which the Court below had not under consideration, it was remitted for review generally, with a declaration as above respecting the admissibility of evidence to prove the true time of delivering the petition.
Action for wrongous imprisonment, Nov 1800.
This was an action for wrongous imprisonment, by Andrew, a shoemaker in the village of Maybole, in Ayrshire, against Murdoch, late Sheriff-substitute of that county.
Summons.
Stat. 1701, cap. 6. Clause respecting bail.
The summons, after reciting the clauses respecting bail and the pains of wrongous imprisonment in the act of 1701, cap 6,
* stated, that in June, 1800,
_________________ Footnote _________________ * “That it shall be lawful for the prisoner, or person ordered to be imprisoned, to apply to the committer, or Commissioners of Justiciary, or other Judge competent for cognition of the crime, and offer to find caution, that he the said prisoner, or person ordered to be imprisoned, shall appear and answer to any libel that shall be offered against him for the crime or offence wherewith he is charged, at any time within the space of six months: and that under such a penalty as the said committer, or the Lords Justiciary, or other Judge competent, shall modify and appoint; and that upon the said application, the said committer, or Lords of Justiciary, or other
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Penalties of wrongous imprisonment.
It was stated, with apparently more accuracy, in
_________________ Footnote _________________ Judge competent, shall first cognosce whether the crime be capital or not, in order to the finding bail allenarly; and if found liable, that he or they shall be obliged to modify the sum for which the bail is to be found within 24 hours after the said petition is presented to him or them respectively; the sum for which bail is to be found, not exceeding 6000 marks for a nobleman, 3000 for a landed gentlemen, 1000 for any other gentleman and burgess, and 300 for any other inferior person, under the pain of wrongous imprisonment.” That by another clause in the act, “the pain of wrongous imprisonment shall be, 6000
l. Scots for a nobleman, 4000
l. for a landed gentleman, 2000
l. for any other gentleman and burgess, and 400
l. for any other persons; and if any prisoner be detained after elapsing of the respective days, in manner before described, for obtaining his liberty, the Judges, Magistrates, or others, wrongously detaining him, shall be liable to the pains following; viz.—the sum of 100
l. Scots for each day of a nobleman, 66
l. 13
s. 4
d. for a landed gentleman and burgess, and 6
l. 13
s. 4
d. for other persons: and farther, shall lose their offices, and be incapable of public trust, by and attorn the pains above specified, and the penalty to belong to the party imprisoned, and process to be competent for the same before the Lords of His Majesty's Privy Council, or before the Lords of Council and Session, to be discussed by them summarily, without abiding the course of the roll; and it is declared, that the above penalties shall not be modified by any power whatsoever.”
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“ Maybole, 30 th June, 1800.
Gentlemen,
June 30, 1800. Warrant of commitment.
“You will please receive and detain in your tolbooth the persons of John Andrew, shoemaker, and Robert Ramsay, cartwright, both in Maybole, accused of seditious practices, until they shall be liberated in due course of law; for which this shall be your warrant. And you are requested to put these two persons into separate apartments in your jail, that they may have no communication with each other, or with any other person, without your liberty.
I am, Gentlemen,
Your most obedient servant,
(Signed) John Murdoch.
To the Honourable the Magistrates of Ayr, and Keeper of their Tolbooth.”
July 2. Petition to be liberated on bail.
No deliverance made, nor bail cognosced, within 24 hours.
July 9, 1800.
Prisoner not liberated till July 12.
Conclusions of summons.
For damages at common law.
Penalties under stat. 1701, cap. 6.
The summons then stated, that the Pursuer was marched under a military guard from Maybole to Ayr, and committed to solitary confinement in the gaol, where the use of pen and ink was denied him,
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“In regard the petitioner is duly incarcerated until farther examination, and that the precognition taken against him is transmitted to the crown lawyers, he delays giving any deliverance on the petition;”
that on the 12th July the Defender pronounced an interlocutor, stating, that “having now heard from the King's Counsel, &c. he found the offence bailable, and allowed the Pursuer to find caution, &c.;” which being done, the Pursuer was liberated the same evening. The summons concluded thus:—
“By which illegal and unwarrantable conduct the said J. M., Defender, has not only subjected himself in damages to the Pursuer, but has also incurred the pains of wrongous imprisonment specified in the said statute; and therefore, agreeably to the said act, and the laws and customs of Scotland, the Defender ought, &c. to make payment to the Pursuer in the sums of money following; viz. 500 l. of solatium, and for damages incurred by his wanton conduct, together with 400 l. Scots, and 6 l. 13 s. 4 d. Scots for each day the Pursuer was detained in prison after the lapse of 24 hours from the time of presenting
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the foresaid petition for bail, being the pains of wrongous imprisonment inflicted by the foresaid act, &c.; and farther, that the said Defender should be deprived of his office, and declared incapable of public trust,” &c.
Deprivation and incapacitation.
Defence.
39 Geo. 3, cap. 49.
Bail in cases of sedition.
The defence was as follows:—
“That this is a wanton prosecution against the Defender for discharging his duty. The Pursuer being committed only for examination in the course of a precognition respecting a high charge against him, he was not entitled to be summarily released on bail. And besides, as by his own statement the charge against him was for sedition and administering unlawful oaths, in which case by law * it is competent for the Court of Justiciary, on application of his Majesty's Advocate, to extend the bail to such amount as they may think necessary, the Defender would have been discharging his duty very ill indeed if he had admitted to bail a person
_________________ Footnote _________________
* “That in all cases where any person shall be imprisoned on a charge of being guilty of the crime of sedition, it shall and may be lawful for the Judges of the Court of Justiciary, or any one of them, on an application for that purpose, in the name of his Majesty's Advocate, to extend the bail respectively herein directed, to be taken beyond the sums above specified, and to such amount as, under all the circumstances of the case, the Court, or any other Judge thereof, shall consider sufficient for insuring the attendance or the appearance of the person accused, on the day of his trial; provided always, that nothing herein contained shall extend to deprive such person of the other benefits of the acts above mentioned, and particularly of his forcing on the day of trial, as especially directed by the Act of Parliament of Scotland, first above recited.”
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Fife and M'Larin v. Ogilvy, Fac. Coll. July, 1762.
In support of the proposition that the commitment was for farther examination, the Defender referred to a certain writing, purporting to be a warrant for farther examination, annexed to the precognition, which he contended ought to be considered as the true warrant of commitment,—though the other was the warrant sent to the Magistrates. None of the Judges, however, appeared to rest much upon that allegation. But it was farther contended, that the words, “ until liberated in due course of law,” were not confined exclusively to warrants for custody in order to trial, but were words of a general signification, to be construed according to circumstances; and that the circumstances showed this to be a warrant for farther examination, to which the statute did not apply. But though it had applied, the act of 39 Geo. 3, cap. 49, must be held to have virtually repealed the statute of 1701, as to the time when bail must be modified; because otherwise the provision in question, in the act 39 Geo. 3, could not in many instances be carried into effect.
On the other hand, it was contended, that the mandate transmitted to the Magistrates of Ayr was clearly the warrant of commitment; and that in practice the words “until liberated in due course of law” were never to be found in warrants for farther examination. But suppose the commitment had been for farther examination, the act of 1701 applied, and the Pursuer ought to have been liberated on bail; for otherwise the whole institution of bail was an absolute farce, since the Magistrate could defeat it at his discretion, by inserting the words “for farther examination” in the warrant of commitment. The clause in the act of 39 Geo. 3 related merely to the amount of bail, and made no alteration as to the time of liberation. After authorizing the extension of bail, it contained an express proviso against the supposition that it altered the act of 1701 in other respects. It was perfectly absurd to imagine that so important a part of so important a statute could be repealed by inference and implication.
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It also appeared that the petition praying to be admitted to bail was not dated, and there was a difference between the parties as to the time when it was presented; the Defender alleging that it was not presented till the 9th July,—the Pursuer insisting that it was presented on the 2d, and offering to prove the fact by the books in the Sheriff-clerk's office, by the Defender's correspondence with the Crown Agent, by parole testimony, &c. The Defender, however, contended, that as the petition was not dated, it must be held, presumptione juris et de jure, to have been presented on the day of the date of the first order or deliverance upon it,—viz. the 9th July. The Pursuer was not allowed by the Court to go into proof of the fact of presentation on the 2d.
Petition for liberation on bail not dated.
Pursuer offers to prove that it was presented on the 2d, but proof not allowed.
Judgment of Court below.
After various proceedings, the Lord Ordinary, ( Armadale,) by interlocutors of Jan. 24, Feb. 13, March 3, May 16, 1801; and Nov. 12, 1802; and the Court, by interlocutors, June 20, 1804, and June 21, 1806, sustained the defences and assoilzied the Defender, and found expenses due.
For a detailed account of these opinions, vide Buch. Rep.
The grounds of the opinions of the Judges, very briefly stated, were as follows,—— Newton, Armadale, (Ordinary, who had changed his original opinion,) and Meadowbank, being for Pursuer; Hope, (Justice-Clerk,) Craig, Hermand, and Islay Campbell, (Lord President,) being for Defender,—
Hope.
Newton.
Armadale.
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Craig.
STAT 1701, CAP. 6.
Craig. Meadowbank.
Hermand.
Islay Campbell (Lord President.)
The Pursuer appealed from the decision of the Court of Session, prosecuting his appeal in formâ pauperis; and in the interval between that decision and the hearing of the appeal the Defender died.
Nov. 29, 1813.
Romilly and W. G. Adam for Appellant; Adam and Nolan for Respondent.
Dec. 8, 1813. Important case with a view to the liberty of the subject, &c.
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Duty of Judges.
His Lordship then stated the difficulties which, in the consideration of the case, had presented themselves; the nature of which may be found in the five following questions, which were ordered to be argued by one Counsel on each side.
Questions which were ordered to be argued by one Counsel on each side.
1. Whether, having regard to the allegations and conclusions of the summons, any and what judgment could, according to law, be pronounced against the Defender, if he was in life, in this case, considered as a proceeding under the Act of Parliament mentioned in the summons, unless it be proved or admitted that the Pursuer's petition was, according to his allegation, presented on the 2d day of July to the Defender?
2. Whether any and what judgment could, according to law, be pronounced against the Defender, if he was now in life, for the Pursuer, considering the Pursuer as demanding a judgment in his favour, according to the laws and customs of Scotland, independently of the provisions of the aforesaid Act of Parliament, and having regard to the allegations and conclusions of the summons, and the facts of the case, and the principles upon which a proceeding demanding such a judgment is to be supported, according to such the laws and customs of Scotland?
3. Whether, if the Defender was now in life, he could, according to law, in this proceeding, be deprived of his office, and be declared incapable of public trust?
4. Whether the Pursuer was entitled by law, in one and the same proceeding, to demand damages, and likewise the sums mentioned in his summons, or other sums, as the pains of wrongous imprisonment inflicted by the said Act of Parliament; and also, that the Defender should be deprived of his office, and be declared incapable?
5. Whether, after the death of the Defender, any and what judgment can, according to law, be pronounced upon the summons, having all the conclusions for damages, and pains, and deprivation, and incapacitation; regard being had to the fact, that in the Defender's life-time interlocutors were pronounced by the Court of Session upon the merits and expenses?
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Stat. 1701, cap. 6.—Ersk. b. 4. t. 4. s. S1. — Muir v. Sharp, Fac.
Coll. July, 1811.—Ersk. b. 4. t. 4. s. 89.
Sim v. Murray, Jan. 19, 1810.
W. G. Adam. 1. Judgment might be given for the aggregate sum of 400 l. Scots, and also for the 6 l. 13 s. 4 d. per diem, restricted as if the petition had been presented on the 9th; but if that restriction was not competent, at all events the cause must be remitted, for proof of the fact that it was presented on the 2d. The difficulty as to the penalties of so much per diem was, that, unless the terminus a quo were given, they could not be rightly computed; and that therefore the time was of the essence of the allegation of the offence. If this applied at all, it could only be to the penalties de die in diem. It could not apply to the aggregate sum of 400 l. Scots, which was one of the pains of wrongous imprisonment. On indictment, the offence might be laid to have been committed on one day, and it might be proved to have been committed on another, if the general allegation were made out. ( Lord Eldon. Where time was of the essence of the charge, it must be alleged.) In an action for false imprisonment, it might be laid on at a certain day, or between day and day, but they were not tied down to prove the very day in the declaration. If that was the case with respect to the aggregate penalty, why not as to the penalty de die in diem? as again in false imprisonment, the point of time was as important as under this Act of Parliament; and so in cases of demurrage at so much per day. But suppose this not to be English law, such an objection had never been taken in the law of Scotland. He could not find a single decision on the point; and if there had been any authority, Blair, (afterwards President,) who argued the case below, would have found it.
2. In other words, Whether judgment might not be given for the damages at common law, independent of the statute? He submitted it might. That depended on the malus animus, which appeared from the circumstances to have existed here. By the act, the petition must be in writing; and the Appellant was confined so as not to be able to write at all. Bail to any amount was offered, and therefore the application to the King's Advocate was only a pretence.
Sim v. Murray, Jan 19, 1810.
3. Certainly, not without the concurrence of the public prosecutor.
4. The Pursuer was entitled to demand the penalties, and damages at common law under the same proceeding; and—the claim of deprivation of office being abandoned—they were so far
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Ersk. b. 4. t. 1. s. 14.
Ersk. b. 4. t. 1. s. 69, 70.
5. Judgment might be given against the representative only for the penalties and damages. There were two heads of actions of which Erskine gave an account,— Actiones rei Persecutoriæ, and Actiones Penales (reads the section.) The chief difference between these two branches of actions was, that where the Pursuer insisted for indemnification of real loss, the action was transmitted against heirs; whereas, actions where a demand was made by way of penalty died with the transgressor. That was the general rule,—but there was an exception; and at the close of the title, Erskine went on to explain the nature and effect of litis contestatio, which gave a new quality to the penal action, and rendered it transmissible.
Morrison v. Cameron, May 25, 1809.
Montgomery v. Walker, Kilk. 401.
Sim v. Murray, Jan. 19, 1810.
Gray v. Paterson, 1773.
Brandon v. Pate, 2 H. B. 308.— Brandon v. Sands, 2 Ves. 514.
1 Cooke B. L. 320.
In the case of Morrison v. Cameron, the Court was clearly of opinion that it did not transmit as a punishment, but that reparation in damages was a debt which transmitted like any other debt. So in Mackenzie v. M'Kenzie, and in M'Naughton v. Robertson, and in the important case of Montgomery v. Walker. ( Lord Eldon. But was it said in any of the cases, that both damages and penalties transmitted?) There was no authority for both, and he put it only on the principle. Then as to the penalties:—When the offence was committed by the one, the penalty became a vested interest in the other, transmissible to his executors: and so it bad been argued in Sim v. Murray, and also in Gray v. Paterson, cited on account of the able argument of Islay Campbell, where it was admitted that a specific penalty given by law to a private party transmitted. This was no new doctrine, that the penalty given by a remedial statute vested in this manner,—the right to recover back a sum of money lost at play by a bankrupt before his bankruptcy having been held transmissible to the assignees. These cases were cited in the Bankrupt Law as authority. But he had another ground. Standing there, he was entitled to presume that the judgment of the Court below was wrong, and to argue as if it had been in his favour; and then it was clear he ought now to have judgment as
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Syme v. ——, August, 1765. —Darby, Feb. 1796.— Sim v. Murray, Jan. 1810. —Ray Muir.
1. The charge was, that the petition was delivered on the 2d; but the date marked on it was the 9th,—the date of the first deliverance; and this was the only evidence. The law of Scotland was jealous of parole testimony, and none could be admitted against the date on the petition. ( Lord Eldon. Suppose it had been delivered on the 2d, and the Clerk by mistake had put the 1st, was it the law of Scotland that the Magistrate was bound by this mistake? Or if he could show the true day by parole evidence on his defence against an action of this sort, why should not others have the same advantage?) That was a strong case; but he apprehended, that though the Clerk might be punished, the Magistrate would be bound. ( Lord Eldon. Then the Lord have mercy upon Scotch Magistrates.) As to this first question, then,
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2. The summons was not one libelling on the common law, and therefore, though there had been a malus animus, no judgment could be pronounced upon it against the Defender.
3. There was no concourse, and the whole proceeding, coming here without amendment, was vitiated.
4. A summons might include damages at common law, and the statutory penalties; but the summons here was bad, for the reasons already stated.
Gray v. Paterson, 1773.— Morrison v. Cameron.
5. There were two principles as to penal actions. So far as they were for reparation in damages, it had been repeatedly held that they were transmissible,— secus, if for punishment of the supposed offender. Here the summons was not for reparation in damages to the injured party, but a summons on the statute, merely for penalties, as a punishment on the Magistrate; and therefore there could be no transmission.
Ersk. b. 4. t. 4. s. 89.
Gray v. Paterson,1773.
W. G. Adam (Reply.) They were not too late here in passing by part of their demand, as the case was not finally decided, and the objection had never been taken below. The observation, that the law was jealous of parole testimony, did not apply here, as they had offered to prove the delivery of the petition on the 2d, not merely by parole evidence, but by the Clerk's books, &c. The Lord Advocate had denied that an offence could be charged on one day and proved on another. But let him look at Erskine, in his chapter on Crimes. As to the argument respecting the concourse, &c. that was putting the liberty of the subject on that concourse. The case of Gray v. Paterson was cited against him, but, as he conceived, without effect; as the Pursuer there gave up his claim before decision, and it became merely a proceeding
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May 24, 1814. Observations in Judgment.
Summons.
The original proceeding, to which he knew nothing analogous in the law of England, was by a summons concluding both for damages at common law and pecuniary penalties, with deprivation of office, and disqualification during life, under a statute; and the consequences therefore would have been very serious indeed to the Defender, if the decision had gone against him. It certainly had occurred to him as singular, if the law of Scotland really did allow such a proceeding. But, after what he had heard, he could not take upon him to say, that, with the concurrence of the King's Advocate, a proceeding of that description might not be competent. It was contended, however, and with considerable effect, that the summons could not here be restricted to damages at common law merely; also, that the conclusion for deprivation and disqualification could not be supported, unless the King's Advocate had been called in; and that, unless the King's Advocate had been called in, even the pecuniary penalties of the slump sum, and so much for each day, could not be recovered. But the question as to the concurrence of the Lord Advocate was very different when considered with a view to the loss of office and disqualification during life, from what it was when considered with regard to the pecuniary penalties given by the statute to the party imprisoned.
Date of the delivery of the petition for bail.
No authority stated to show that the real time of delivering the petition might not be proved in opposition to the date marked on the petition.
Their Lordships had heard much as to the time when the petition had been presented; and he would recommend it to such of them as had particularly attended to the cause, to give a good deal of consideration to that point. True, the Appellant had offered to prove that the petition was delivered on the 2d, and had stated the media of proof; but it was argued, that such proof
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Points to be considered.
Reference had been made here to the not passing from the alleged incompetent part of the summons in the Court below, and a question had arisen, whether their Lordships could now pass from it; and whether they had not the power to do so, since the objection as to the competency of the summons had not been taken below, and therefore the amendment not made there; and also as to what effect the death of the original Defender must have upon the suit.
Act of 39 Geo. 3, cap. 49, made no alteration in stat. 1701, cap. 6, as to the time within which prisoners committed for bailable offences are to be liberated on bail.
These were points for consideration; but he could not help expressing his regret, that a matter so plain as this appeared to be, both as to fact and law, should have been the subject of such a long and complicated litigation. The fact was, that the Appellant had been arrested for a bailable offence. If the petition praying for liberation on bail was presented on the 2d, a deliverance ought to have been made upon it within 24 hours from that time: and, with all due deference to the opinion of the Court below, he could not but say, with more confidence than he usually felt on such occasions, that he could not possibly imagine how it came to be thought that the act of 1799 (39 Geo. 3, cap. 49) made any alteration as to this point. The alteration related merely to the amount of bail, but the party was not to be kept in prison longer than before; and the act of 1799 could not have the effect of authorizing a longer confinement, unless that had been the subject of special enactment. If the statute for the prevention of wrongous imprisonment was attended with
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Any supposed inconvenience in the stat. of wrongous imprisonment not to be removed by inference.
Appellant had considerable reason to complain.
June 9, 1814.
Observations in Judgment.
Summons— whether entirely on the stat. of 1701.
Whether concurrence of Crown officer necessary in actions on stat. of 1701.
Whether an incompetent part of a summons could be passed from in the House of Lords in the first instance.
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Date of the delivery of the petition for bail.
Difficult to be lieve that the date on the petition, though erroneous, was to be conclusive. Condition of the magistrate himself, if such were the law.
Impossible to sustain the proposition, that the date marked on the petition was conclusive.
But there were two or three points arising out of this case which deserved their Lordships' particular attention. If they rightly understood the proceedings in the Court below, (and they ought to be able to understand them, considering the assistance they had had at the bar,) the interlocutors involved this proposition,—that where a person imprisoned for custody in order to trial applied under the directions of the act of 1701 to be liberated on bail within 24 hours of the date of presenting the petition to that
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Warrant.
But it had been said, that this was not a warrant of commitment for custody in order to trial, but a warrant of commitment for farther examination; and a great deal of argument had been used to induce their Lordships to believe, that a warrant which bore to be for custody “ until liberated in due course of law” might be understood as a warrant of commitment for farther examination. Even in the law of England he had found more authority for correcting the conclusion of a warrant by the subject matter of it than he had at first been aware of. Their Lordships, however, would look at the fact in the present case. This might turn out not to be a warrant of commitment for farther examination, and it might not be a warrant of commitment for trial. But if it could not be considered as a warrant of commitment for farther examination, he doubted whether the Magistrate could be heard to say, that it was not a commitment for custody in order to trial.
Act of 39 Geo. 3, cap. 49.
It never could be contended with success, that the power given by the act of 39 Geo. 3, cap. 49, to extend the amount of bail in cases of sedition, operated as a repeal of the stat. of 1701, cap. 6, as to time within which the bail must be cognosced.
The Magistrate had fallen into the mistake— he should be sorry to speak harshly—of supposing that the late act (39 Geo. 3, cap. 49) authorized him to confine persons charged with this species of offence till a correspondence could take place with the King's Advocate from all parts of Scotland. He did not say whether this would be a reasonable enactment; but it was difficult for him to conceive it to be so reasonable as to induce him to believe that such was the meaning of the act, unless he found that meaning clearly there expressed. There was a mode of construing the act, which appeared
Page: 421↓
Then it appeared to him, that the proper mode of dealing with this case, considering the important points of Scotch law involved in it which had not been under consideration in the Court below, would be to remit to the Court of Session to review the interlocutors generally, but with a declaration as to the point of the date of the delivery of the petition; for till that was fixed they could come to no conclusion upon two other points, one of which was essential, the other extremely material. Whether there was any undue delay in giving a deliverance on the petition was essential; and it was a very material point, whether the laying the time was not here of the essence of the allegation of the offence.
Proper mode of construing the stat. of wrongous imprisonment.
These were most important considerations, with reference to the condition of the Magistrate himself; but it ought never to be forgotten, that in the case of every individual, the act for preventing wrongous imprisonment must be so construed as to give to
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The act of 1701 inflicted several penalties on those who imprisoned any of the subjects of Scotland wrongously. The nature of these penalties have been frequently explained,—1st, a certain sum de die in diem; 2d, what was called the slump, or aggregate sum; and, 3d, loss of office, and disqualification from holding any situation of public trust whatever;—a severe punishment,—one of the
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Page: 427↓
The decided opinion of the noble and learned Lord on the construction attempted to be put on the 39 Geo. 3, cap. 49, has given me great satisfaction. It is such as I should have expected from his accurate mind, and renders all farther comment unnecessary. The argument, that such an act can, by inference and a side wind, defeat the intentions and repeal the provisions of the act of 1701, (though some stress was laid upon it in the Court of Session,) is, I am happy to hear from the noble and learned Lord, not to be maintained for a moment. It would be idle to waste one word to expose its futility. The act of 1799 has left the provisions of 1701
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Buch. Rep. 28 —42.
Buch. Rep. 51.
I now come to a topic which it is painful to me to touch upon, but which, with my view of it, it would be criminal in me entirely to overlook. In the course of this cause, there have been handed up from the bar, not indeed as evidence, but for the information of the House, two books, one rather voluminous, and the other not small, purporting to be Reports of cases determined in the Courts of Scotland, and containing particularly the report of what passed in the Court of Session on the cause which is now before us. It is not necessary to observe, that in this country many learned and ingenious men have supplied the public with Reports of law cases, which, as precedents, have become the rules by which our Courts of Justice decide upon points of the greatest importance. One cannot look across this table
* without having the value of this sort of publication brought to our mind. Our law, the result as it is of the experience of ages, does not disdain such assistance, and often leans on the authority of such books. But, if I am not misinformed, the volumes handed up to us are invested
_________________ Footnote _________________ * Mr. Cowper, the Clerk of the House of Lords, published Reports.
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_________________ Footnote _________________
* Probably alluding to Lords Newton and Meadowbank.
† Lord Hermand.
Page: 431↓
I could not therefore allow this circumstance, so brought before me, to pass without animadversion.
Page: 432↓
June 29, 1814.
Judgment.
“ It is declared by the Lords spiritual and temporal in Parliament assembled, that it is competent to the Court of Session in Scotland, in a due proceeding on account of wrongous imprisonment, to receive evidence tendered to prove the actual and true date of the delivery of the petition of the
Page: 433↓
Solicitors: Agent for Appellant, Campbell.
Agent for Respondent, Longlands.