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Scottish Court of Session Decisions >>
Adam Boyle, Merchant in Borrowstounness, v The Magistrates of the Burgh of Forres. [1724] Mor 11808 (8 July 1724)
URL: http://www.bailii.org/scot/cases/ScotCS/1724/Mor2811808-122.html Cite as:
[1724] Mor 11808
Adam Boyle, Merchant in Borrowstounness, v. The Magistrates of the Burgh of Forres
Date: 8 July 1724 Case No. No 122.
A debtor being incarcerated for a debt, and liberated upon the act of grace, the magistrates of a burgh may refuse to incarcerate him again for the same debt, although the creditor offer to aliment him.
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Mr Boyle insisted in a process against the said Magistrates for payment of L.405 Scots, contained in a bill accepted by John Roy, merchant in Forres, upon this ground, That he having raised horning and caption on the bill, caused Alexander Maclean, messenger, upon the 18th of December 1722, apprehend Roy, with orders to carry him to the prison of Inverness; that notwithstanding thereof, upon the 19th of the said month, the said Magistrates ordered Maclean to carry Roy to the prison of Forres; which he refusing, because of his orders to carry him to Inverness, they caused one Nicolson a messenger apprehended Roy upon another caption, and commit him prisoner to their own tolbooth, where they allowed him to go out and in at his pleasure.
The Magistrates, without admitting the facts, rested their defenee upon this single point, ‘That the prisoner had been formerly incarcerate at the pursuer's instance for the same debt in their tolbooth, and was duly liberated from prison upon the act of grace after intimation to the pursuer; and therefore he could not be again imprisoned for the same debt.’
It was answered for the pursuer, That nothing could hinder him to imprison Roy of new, being content to aliment him; the act 32. Parl. 1. Sess. 6. of K. William, being only in favours of the royal burghs, and not in favours of prisoners.
Replied, That as the act was designed for the ease of royal burghs, so it likewise designed to favour poor prisoners, and prevent their starving; that if the same creditor could of new imprison one duly liberated upon the act, then a debtor might be harassed out of his life; for he behoved to lie till a new intimation and for ten days thereafter, and even when then liberated, he might be immediately apprehended again, and incarcerated in the same or any other prison without end; that the royal burghs by such a practice would have no ease by the act, the liberation would be so short and precarious.
The Lords sustained the defence for the Magistrates.
Reporter, Lord Dun.Act. Hamilton, sen.Alt. Jo. Forbes.
Fol. Dic. v. 4. p. 141. Edgar, p. 73.
