Ritchi - Appellant v. Magistrates of Canongate and others [1817] UKHL 5_Dow_87

UKHL
Ritchi - Appellant v. Magistrates of Canongate and others
[1817] UKHL 5_Dow_87
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1816–17.57 Geo . III.SCOTLAND.APPEAL FROM THE COURT OF SESSION.

No. 5

Ritchie — Appellant v. Magistrates of Canongate and others Respondents

June 27 , 1817 .particular house within the burgh was assigned for the residence of the debtor; but he never was there, and was frequently seen at his house in Surgeons' Square and other places without the burgh, apparently in good health. The Appellant commenced an action against the magistrates for the debt, on the ground that the debtor's residing out of the jurisdiction of the burgh of Canongate was an escape, which made the magistrates liable. The Court below decided in favour of the magistrates; and this decision was affirmed in the House of Lords, both on the general ground that the circumstances were not such as rendered the magistrates liable under the act of sederunt, and also upon certain specialties in this case.LIABILITY OF MAGISTRATES IN CASES OF LIBERATION OF DEBTORS UNDER ACT OF SEDER UNT, 1671.The magistrates of Canongate, upon a certificate on oath by a physician, that the life of a debtor, confined in their gaol by the Appellant, was in imminent danger, permitted his liberation from the gaol to some house within the burgh, on his giving bonds with two sureties to conform to the conditions of the act of sederunt, 1671, by residing in some house within the burgh, and on no account going beyond the jurisdiction of the same, and returning to prison on recovery of his health, or when required, under penalty of paying the debt. A

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The Lord Chancellor stating, that he would have had some difficulty in saying that the magistrates were not liable on the general ground, if the construction, as to this point, to be put on the act, had not been, in some measure, settled by the decisions in the cases of Forbes v. Magistrates of Canongate , and Fordyce v. Magistrates of Aberdeen in 1792.Debtor imprisoned.Petition for liberation under Act of Sederunt, 1671.Dec. 15, 1808. Interlocutor of liberation by the baillies of Canongate.The material facts of this case were these:—on the 6th July, 1808, Wight was imprisoned for debt (300 l .) in the Canongate gaol by Ritchie, and after the lapse of the requisite time, Wight commenced a process of cessio bonorum against his creditors. This was opposed; and Wight, after being confined about five months, on the 13th Dec. 1808, presented a petition to the baillies of Canongate to be liberated under the act of sederunt, 1671, which was accompanied by a certificate from a physician, that the life of the prisoner was in imminent danger from the confinement. The physician having sworn to the truth of the certificate, copies of the petition and deposition were served upon Mr. Ritchie; and, no answer or objection having been made, the magistrates, on the 15th Dec. 1808, pronounced an

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Bond of caution.Of the same date, a bond of caution was granted by Archibald Wight, and by John Craw, writer to the signet, and John M'Tavish, writer in Edinburgh, as his sureties. After reciting the aforesaid petition, the deposition of Dr. Mitchell, and the interlocutor of the magistrates, the bond proceeds thus:conditions of the said act of sederunt, by residing in some house within the burgh, and on no account going beyond the jurisdiction of the same; and immediately on recovery of his health, or when required, shall return to and surrender himself prisoner within the said tolbooth, under the penalty of forfeiting and paying the debts for which he stands imprisoned and arrested, amounting to sums between, two and three hundred pounds sterling money; as also to indemnify, free and harmless keep, the magistrates and burgh of Canongate, of all costs, damages, or expenses whatsoever, in, by, through, or anent the premises: and the said Archibald Wight enacts and binds himself and his heirs, not only duly to perform the premises on his part, by a strict observance of the conditions and limitations of the said act of sederunt, and returning to prison upon reconvalescence, but also to relieve and freely keep his said sureties, and their foresaids, of all loss and damage whatever in the premises: and all and each of us do hereby subject ourselves to the jurisdiction of the Canongate, and nominate the court-house thereof as a domicile whereat either of us (being for the time resident without the said jurisdiction) may be legally summoned and charged to the performance of the premises or any part thereof.”
“We the said John Craw and John M'Tavish judicially enact, bind, and oblige ourselves and our heirs, jointly and severally, in the burgh court books of Canongate enacted, that the said Archibald Wight shall, during his temporary releasement for the recovery of his health, restrict and conform himself agreeably to the terms and

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Dec. 24. 1808. Interlocutor, finding the debtor entitled to the benefit of cessio.Wight was accordingly liberated without objection; and ten days after this liberation, viz. on 24th Dec. 1808, he was found entitled to the benefit of the process of cessio honorum by interlocutor of the Court of session. On the 19th of January,

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Feb. 1809. Interlocutor reclaimed against.In Feb. 1809, Mr. Ritchie, having borrowed the caption from the Canongate gaol, reclaimed against the interlocutor in the process of cessio bonorum; and ultimately the cessio was refused, both by the Court of Session and House of Lords; and on the 8th of May, 1809, intimated to the magistrates of Canongate, under the form of a protest, that they had suffered Wight to escape, and were liable in payment of the debt. On the 12th May, Wight surrendered himself, but was not then received, the gaoler not thinking that he had power to receive him without having the caption in his possession. On the 13th May, Mr. Ritchie returned the caption, and Wight was re-incarcerated; but on the 24th May, 1809, he was again liberated in terms of the act of sederunt.10th May, 1869. Action against the magistrates.In the mean time Mr. Ritchie, on the 10th May, 1809, raised an action against the magistrates, seting forth in the summons, “that by an act of

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And concluding, “that it ought and should be found and declared by decreet of the Lords of Council and Session that the said defenders (Respondents) suffered the said Archibald Wight to escape out of prison, at least permitted him to go out, without payment of the foresaid debt; or a charge to set at liberty, and the, same being so found and declared, the said defenders not only as magistrates, but as individuals, and their successors in office, ought and should be decerned and ordained, conjunctly and severally, to make payment to the pursuer (Appellant) of the foresaid principal sums and interest since due and till payment, &c.”The truth of the allegations in the summons being denied by the magistrates, the Lord Ordinary, on the 8th July, 1809, ordered the pursuer to give in a condescendance of the facts, which he averred and offered to prove in support of his action; and the following condescendance was accordingly given in.The Appellant's condescendance.
“1st. That Archibald Wight, late starch manufacturer at Ormiston, was incarcerated at the instance of the pursuer (Appellant) within the tolbooth of

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2d. That the defenders (Respondents) allowed the said Archibald Wight, contrary to law, and to the act of sederunt relative to the custody of prisoners, to go out of gaol without payment of the debts for which he was so imprisoned, as is specifically stated in a protest against the defenders, produced in process and here referred to.3d. That the said Archibald Wight has accordingly for many months past been going at perfect liberty, residing without the jurisdiction of the burgh of Canongate, and has never slept one night in the house appointed for his residence within the jurisdiction of the Canongate.4th. That the said Archibald Wight has been seen at Portobello, Leith, and other places without the said jurisdiction, in apparently good health: and,5th. That upon many days the said Archibald Wight was out of the jurisdiction of the magistrates of Canongate; and particularly upon Saturday last, the 16th Dec. 1809, the said Archibald Wight was seen in the Parliament House attending at the bar of the inner house, instructing counsel at the advising of his process of cessio bonorum.” cessio bonorum.”Evidence.The Lord Ordinary, on the 6th Feb. 1810, allowed both parties a proof, and witnesses were examined on the part of the pursuer.Mrs. Greig, in whose house a room had been taken for Wight's residence, deponed, “That she knows

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John Gow, painter, “recollects dining with Mr. Wight after his liberation, and, as he thinks, very early in the month of January, 1801: that Mr. Wight then received the deponent at dinner in his own house, in Surgeons' Square; but whether Mr. Wight at that time slept there or not the deponent cannot say: that, to the best of his recollection, he left Mr. Wight's house between

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Margaret Turnbull depones, “That she recollects seeing Wight in Surgeons' Square after the time he was imprisoned, and that she cannot precisely say, whether it was before or after Christmas that she saw Mr. Wight as above, but that she saw him often.” And James and Walter Lockhart stated the same circumstance.The Reverend Joseph Robertson depones, “That upon two occasions subsequent to Wight's liberation, on the bill of health, the deponent was in company with him at Morris's tavern, opposite to or at the back of the Fountain Well: that upon the first of these occasions, the deponent left Wight in Morris's: that upon the second they came away together, when Wight told the deponent that he was going home to his own house in Surgeons' Square; and parted from him with that intention: that upon another occasion, also subsequent to Wight's liberation, the deponent met him coming down a small close near the foot of the Cowgate, as from Surgeons' Square: that he knows Wight to have been a second time incarcerated, but that these meetings all took place prior to his second incarceration; and that the two meetings at Morris's happened very soon after his liberation upon the. bill of health: that all these times Wight appeared to the deponent, to be in good

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John M'Gregor depones, “That he recollects having met Wight in the High School Wynd, after a liberation which he obtained upon a bill of health, and prior to his second incarceration: that he met him several times in Surgeons' Square, also previous to his second incarceration: that he recollects of meeting Wight in company with Mr. Pattison, near St. Leonard's Hill, also previous to the second incarceration.”Hamilton Robertson depones to his recollection of meeting Wight “on two occasions after his liberation, once opposite the Fountain Well, and once upon the South Bridge, and of remarking that he was then beyond the bounds.” But adds, that he cannot say how long this was after his liberation.It was not disputed that Surgeons' Square, the Fountain Well, and South Bridge, were without the particular jurisdiction of the Canongate:but it was remarked that the evidence was defective as to dates, and that for any thing that appeared it might apply to the period between the date of the interlocutor in the cessio, and the reclamation.

The Magistrates gave in evidence the Written

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Judgment below for the magistrates.Appeal.The cause having come before the Lords of the first division, the Court, on the 6th July, 1813, sustained the defences, assoilzied the defenders, and decerned, and found the pursuer liable in expenses; and, after advising a reclaiming petition with answers, they adhered to this interlocutor. From this judgment the pursuer appealed.Reasons for the Appellant.The Reasons of Appeal, given in the Appellant's case, were these:All the authorities of the law of Scotland are agreed, that a debtor, liberated from prison on account of sickness, remains under the custody of the magistrates; and they are responsible for his custody during that time, and must have him guarded.Stair's Inst. B. 4. T. 47. S. 22.Bankton, B. 1 S. 10. s. 198, 202. Erkine, B. 4. T. 3. s. 14.Lord Stair, in his Institute of the Law of Scotland, says, “It will not be a relevant defence, or reason of suspension, for magistrates suffering prisoners to escape, that they will yet take the party, albeit he be in as good condition as when he escaped, or that upon testificates of physicians they suffered the prisoner, for his health, to go out to take the air, or to go to a private house; albeit in either case there were two to guard him; for the Lords, by act of sederunt, June 14, 1671,

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That this was the law of Scotland before the act of sederunt, 1671, appears from various decisions of the Court before the act was passed.Diet. vol. 2. p. 169. Haddington, July 23, 1605.Nisbet v. Drummond.Ibid. Dec. 1609, Lord Applegirth supplicant. Gosford, July 14, 1668. Paplay v. Magistrates of Edinburgh .The following cases are reported by Haddington and Gosford before the year 1671.—“A magistrate setting at liberty a party incarcerate for debt, will not evite payment thereof by re-entering him to prison; because the incarceration is a kind of punishment of his rebellion, and presumeable that thereby he might have been induced to make payment if he had not been eased by being set at liberty.”—“A person in prison being sick, and having the same attested under the hand of a doctor of medicine, was allowed to be transported to a house in the town, upon caution, to be a true prisoner there, and to return to prison upon recovery.”— “A magistrate suffering a prisoner for debt to lie out of the tolbooth, though he was in

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The act of sederunt therefore declared the law, and was intended to put magistrates of burghs against undue laxity in the custody of debtors.Town of Brechin v. Town of Dundee , 14th July, 1671.This appears from the act of sederunt itself, and the decision of the Court in a case which occurred at that time, reported by Lord Stair and Lord Gosford, and thus abridged by Lord Kaimes:
“Magistrates of a town being pursued for allowing their prisoner to go abroad frequently out of their tolbooth into the street and taverns, it was found no relevant defence that the prisoner was always guarded; for the Lords were of opinion, that magistrates of burghs have only power to let prisoners come out of their tolbooth, under a guard, in the extreme hazard of their life by sickness, and not without testificates by physicians, or skilled persons, upon oath, bearing the party's condition to require the same, and that without great hazard, they could not suffer delay to make application to the Council or Session.”
The principles laid down by Lord Stair and other authorities on the law of Scotland, have been enforced by the Court in various cases: Fullarton and Kennedy against Magistrates of Ayr , 7th March, 1781; Shortbread against Magistrates of Annan , 8th June, 1790; Gray against Magistrates of Dumfries, 7th December, 1780; Purdie,&c. against

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It is clear that, in point of fact, Wight was under no custody or restraint. He never went to the lodging appointed for him, and does not appear to have been within the jurisdiction of the Canongate, unless when he visited the jail for his own amusement.Objection 1st.—That Wight's application on account of sickness was intimated to the Appellant; and he did not oppose it, or insist on a guard.Answer 1 st. —The custody of a debtor is with the Magistrates, not with the creditor; and as the Appellant gave no consent to his liberation, the responsibility remained with them.Answer 2 d. —-The Magistrates transferred the debtor to a lodging within their jurisdiction; the creditor had therefore a right to expect that he should be confined in that lodging, and not allowed to go at large, and reside beyond the jurisdiction.Objection 2 d. —That prisoners who are sick will not be benefited by being removed from prison, unless they are allowed to use exercise, and go freely about.Answer 1 st. —This doctrine (which is not that of the law of Scotland) would put it in the power of magistrates with the assistance of false certificates, to put an end to imprisonment for debt altogether, under pretext of sickness.Answer 2 d .—Supposing, but not admitting, that in certain cases on cause specially shown, prisoners may be allowed to take exercise for recovery of their health, there must in that case be a guard, and the

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Answer 3 d .—Wight did not take exercise for recovery of his health; but went to taverns, and resided in his own house, beyond the jurisdiction of the magistrates.Case for the magistrates.In the case for the Respondents, two cases, those of Forbes and Fordyce, were stated, upon which the Respondents particularly relied; and, as these cases were not reported, the statement is here transcribed at length, together with the observations on the cases cited for the Appellant.Decisions on the point now in question. Forbes v. Magistrates of Canongate , Jan 31, 1793 not reported.Alexander Robertson, a prisoner for debt, in January, 1790, applied for liberation, producing merely a certificate, on soul and conscience, by Mr. James Arrot, surgeon, and Dr. Henry Cullen, physician, that, for the preservation of his life, he needed “free air, in a situation where proper care and medicines might be administered.” His petition was answered, and the prayer of it was objected to, on the grounds that by the act of sederunt, the certificate should “be upon oath,” and that “the magistrates should only give liberty to reside in some house within the town,” and with a protest in writing that the creditors did not give any consent even under the conditions of the act of sederunt. These objections were renewed by written minute, when the caution found was intimated, the sufficiency of which likewise was not admitted. But the magistrates “in respect of the attestation, and the certificates of the petitioner's indisposition, granted warrant to the keeper of the tolbooth of Canongate, to liberate the petitioner in

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Nevertheless it was strenuously contended by the pursuer in that case (as in the present), that the magistrates were bound to guard the prisoner constantly, and keep him in custody at some house

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By agreement of the parties, these inquiries were extended to many other burghs, and were made by interrogatories in these terms:
“1. In liberating a prisoner confined for debt in the case of sickness, what evidence do you require of the state of his health? Send copies of the form of that certificate from your records.”
“2. Do you assign the prisoner any particular place of residence during the continuance of his indisposition? Or upon what terms do you grant his liberation.”

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“3. Do you take any security or bond of caution from the prisoner at his liberation? What is the nature of the security? Transmit a copy thereof.”
“Do you take any charge of, or make any inquiries after, the conduct and behaviour of the prisoner during his being out of prison? Do you place him under any guard?”
“5. Has any alteration taken place in the manner and form of certificates, or part of the procedure, of late years? If so, point the same out, and transmit copies of both old and new forms.”
“6. Do you make any difference, or in any manner of way vary your proceeding, certificates, or bond, where there is opposition on the part of the creditor to the liberation of the debtor, or where there is no opposition?”
Memorial for Defender, p. 10.Answers were obtained on all of these points, and a proof at large was also taken. With respect to the form of the certificate, it appeared that the Court itself had recently before appointed liberation in the case of a Mr. Rankin from Falkirk, on a certificate of Mr. Alexander Wood, surgeon, upon soul and conscience, and that the practice of the burghs was various. As to residence, one half of the burgh answered that they “were not in use to fix any house for the residence of the debtor.” In the other half it appeared that they sometimes pitched upon the debtor's own house, “whether within the burgh or not;” sometimes upon other houses within the burgh. All without a single exception answered, that it was “not the practice to keep any guard on, or take any charge of, the debtor after he was liberated, or to make anny

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With respect again to the actual conduct and habits of Robertson, the proof fully established the whole particulars which have been already stated upon the case, which was fully pleaded in mutual memorials. The Court sustained the defences and assoilzied; and a long and able petition against this interlocutor was refused without answers.The Respondents have had access to notes, from which it appears that the distinguished Judge then in the chair was of opinion, that “the form of certificate had in practice been various, and that it would be wrong in the Court to put too narrow and rigid a construction upon the act of sederunt; for the power of the Court to introduce such a regulation, and to throw the load off themselves upon the burghs, might be doubted.” His Lordship indeed observed, that the chief “difficulty of the case arose from the circumstance that the agent of the creditors had required the certificate to be sworn to, yet this was overlooked;” but he also remarked that “the situation of magistrates is hard, and the act of sederunt ought to be re-considered. The oath required by the act of sederunt must for the most part be extra-judicial, i. e. ex parte, as intimation is not necessary, nor is any precise form of an oath prescribed. The practice of the Canongate is material. Prisoners for debt are oftenest confined there. Either a new act of sederunt should be made, laying down the forms more precisely, or a clause introduced in the

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The Lord Justice Clerk (M'Queen) inclined to think, that squalor is “out of the question, and confinement within the burgh not necessary; as the very purpose of the liberation is, that the prisoner may recover health. It is enough to find sufficient security to recommit him when required. The hardship on magistrates would be intolerable if otherwise.”
“Lord Henderland concurred, and likewise founded his opinion upon the circumstance that the creditors did not apply to recommit him.”
Lord Esgrove and a majority of the other Judges were of the same opinion; but Lords Dreghorn, Craig, and Abercromby, thought that the magistrates had failed in their duty, “particularly as to the neglect of the oath, and not appointing a place of residence, and in taking no step after the summons was executed.” These, however, it will be recollected, are circumstances as to all of which the Respondents, in the present case, have acted most correctly.Fordyce v. Magistrates of Aberdeen , 1793, not reported.

The second and only other case which, so far as

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It will not be overlooked in this case, that the matter at present in question is the meaning of an act of sederunt, or rule of Court. The judgments in these two cases were precisely upon the same point which is at issue in the present case, and given in favour of the defenders, in cases stronger than the present for the pursuers. It was peculiarly the

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But even if the decisions in these cases had been more doubtful, and had introduced a practice consonant to them, the Respondents conceive that the magistrates of royal burghs were entitled to look to these cases, as having given the true interpretation to the act of sederunt; and that if a pursuer, as in the present case, had sustained no injury whatever, the courts of law would have hesitated to give judgment in his favour in a case so highly penal, where magistrates had only acted in conformity to decided cases.But the Respondents submit that it is not necessary for them to argue their case thus: they found upon no new practice introduced since these cases were decided, but upon the true sense and meaning of the act of sederunt, and the practice which all the burghs have had under it, downwards to this day.On the other hand, the Appellant founded upon several cases, decided before the date of the act of sederunt: Nisbet v. Drummond , Haddington, 23d July, 1605; Lord Applegirth, supplicant, 1st Dec. 1609; and Poplay v. Magistrates of Edinburgh , 14th July, 1668. In the first of these cases it was found that, if a magistrate liberated a person confined for debt, it did not excuse the magistrate that the party re-entered himself to prison; this had no

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In these cases there is nothing hostile to the argument maintained by the Respondents; besides, the matter has since been regulated by the act of sederunt.Town of Brechin v. Town of Dundee .The Appellant founded also upon the before-mentioned case of the Town of Brechin v. Town of Dundee , which occasioned the making of the act of sederunt, particularly upon that part of the case which mentioned, “that magistrates of burghs have only power to let prisoners come out of their tolbooths under a guard, in the extreme hazard of their life by sickness.” It is sufficient also upon this, to refer to the act of sederunt itself; when it regulates the mode of enlarging prisoners on a bill of health, it says nothing of the necessity of a guard.Stair, B. 4. lit. 47. § 22.The Appellant also founded upon a passage in Lord Stair's Institute on this point, in which his Lordship says, that “the Lords, by act of sederunt, 14th June, 1761, prohibited the magistrates of Edinburgh to suffer prisoners to go out without particular warrant, or the magistrates of other burghs not far distant, except in the imminency of death: and where such warrant is granted, the

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It is not necessary to say any thing of the authority which is due to the opinions of that most eminent person; but in several particulars he does not state this act of sederunt accurately: it says nothing as to the “magistrate of Edinburgh, or the magistrates of other burghs not far distant,” to whom, in his Lordship's view, the act of sederunt had been confined; nor does it say any thing of the “place of the prisoner's abode being secure, and guards attending.” It is sufficient as to this to say, that universal practice has explained the act in this respect.Bankton, B. 1. tit. 10. § 198.The Appellant also referred to a dictum of Lord Bankton on this subject. His Lordship, treating of a prisoner liberated on a bill of health, says:
“And if he is returned to prison on his convalescence, the magistrates are free; but if he escape they are liable for the debt, because they ought to have had a guard upon him to prevent his escape: and this is settled by act of sederunt.”
It appears strange that the Appellant should have relied on this passage; in the first part of it, it is clear that his Lordship considered that there was no escape if the person liberated was “ returned to prison on his convalescence .” According to Lord Bankton's view, the magistrates in this case “ are

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The Appellant also founded on a passage in Erskine, B. 4. tit. 3. § 14. on this subject, to which the Respondents also implicitly subscribe.Fullarton and Kennedy v. Magistrates of Ayr , Fac. Coll. 7th March, 1781.The Appellant also referred to a case of Fullarton and Kennedy v. the Magistrates of Ayr , where in a circumstantiate case (very indistinctly stated in the report) the magistrates had been found liable for the debt of a person liberated on a bill of health. It is impossible to discover upon what grounds that case was decided; but it seems clear that there was one good ground for decision against the magistrates, the not remanding the debtor to prison on his recovery . The facts of the present case were very different.The Appellant also founded upon the cases of Gray v. the Magistrates of Dunfries , 7th Dec. 1780; Purdie and Co. v. the Magistrates of Montrose , 29th June, 1786; Wilson v. Magistrates of Edinburgh , 8th July, 1788; and Shortbread v. Magistrates of Annan , 8th June, 1790; but none of these have relation to the case of liberation on a bill of health, but to ordinary cases of imprisonment. As such they can have no application here.

The Appellant also founded upon certain cases

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The Appellant also referred to the cases of Lindsay, 27th Nov. 1797; Donaldson, 6th Feb. 1798; and Mackenzie, 9th March, 1799, for the purpose of showing what species of imprisonment will entitle a person to obtain a cessio bonorum. The Respondents do not find it necessary to enter into these cases; they have been well decided, and have no relation to the present case.The Appellant also urged, that the magistrates of Canongate themselves had put the same construction on the act of sederunt that the Appellant contended for; that they had assigned him a particular house to reside in; and that the bond of caution

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Mr. Leach and Mr. Abercromby (for the Appellant.) The act was made in consequence of the case of the Town of Brechin v. the Town of Dundee , 1671, and was declaratory of what the law was, and intended to explain more distinctly the magistrates' duty, without doing away that restraint which was a means of recovering the debt. The Judges however thought themselves bound by the two cases of Forbes and Fordyce. The decision in the case of Forbes was most extraordinary, for the Court appeared to have thought that the magistrates might give any liberty to the prisoner, preventing only his escape out of the kingdom: and this was what they considered as the meaning of the act. In the present case two of the Judges were for the defendants, on the ground of the act of sederunt, independently of the authority of the cases; two of the Judges were for the pursuer, and one Judge (the President) was for the pursuer on the principle, but thought that as a Judge he was bound by the two cases. The President was astonished at the decision in the case

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Sir S. Romilly and Mr. Simpson (for the Respondents). There were two views to be taken of this case: 1st, on the general principle; 2d, on the specialties. The Court below had decided on the general question, not thinking it necessary to advert to the specialties. If the judgment of this house should turn on the general principle, the present case was most important, not only with respect to the liberty of the subject and the responsibility of magistrates, but with regard to the state of the general law of the land. It was for their Lordships to determine, whether, where a point of law was laid down in a long train of decisions, and acted upon for a long course of years, it was not to be considered as settled till that point came to be decided by the House of Lords, leaving it uncertain

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Acts of sederunt were now with great propriety limited to matters of judicial form, and any alteration in the law must be made in another manner. All that the creditor could require was that the

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Mr. Leach (in reply). Their Lordships were called upon to give a general construction to the act, but were not called upon to reverse a train of decisions. There was only one case to be reversed; and that was one where the Court, instead of looking at the act, sent to the gaolers to ascertain the practice.

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Judgment.June 27, 1817.Lord Eldon , (C.) This is an appeal in which it is contended that the magistrates of Canongate are answerable to the Appellant for a debt due to him from a person of the name of Wight, in consequence of their having allowed Wight to escape out of their custody. I do not mean to state the circumstances of the case at length; but the Court below thought that under the act of sederunt, 1671, the Respondents were not liable; and yet I should have some difficulty upon that point, if the construction of the act had not been in some measure settled by prior decisions.It appears that, before the act of sederunt was made, magistrates were, by law, bound to great diligence in the confinement of prisoners; but by the humanity of some, and the negligence of others, the practice became a good deal relaxed; and in consequence of that circumstance this act of sederunt was made.Act of sederunt, June 14, 1671.
“The Lords considering, that albeit by the law magistrates of burghs are obliged to detain in sure ward and firmance persons incarcerate in their tolbooths for debt; yet hitherto they have been in use to indulge prisoners to go abroad upon several occasions, and it being expedient that in time coming the foresaid liberty taken by magistrates of burghs should be restrained, and the law duly observed, therefore the said Lords do declare, that hereafter it shall not be lawful to the magistrates of burghs upon any occasion whatsomever,

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Your Lordships perceive, therefore, that, upon such an attestation of sickness and extreme danger of life, the magistrates are to allow the prisoner liberty to reside in some house within the town, during the continuance of sickness, they being answerable that he escape not.Wight had been incarcerated in the Canongate gaol, and, in consequence of the certificate upon oath of a physician, that his life was in imminent danger, had been liberated on the security of himself and two sureties, that Wight, during his temporary releasement for the recovery of his health, would restrict and conform himself agreeably to the terms and conditions of the said act of sederunt,

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The construction of the act settled by the cases of Forbes and Fordyce.Setting aside the specialties of the case, it appears that Wight was liberated, and remained out of custody for about nine months; and that during that period he had been spending his time sometimes in taverns, at other times in the gaol, and had been sometimes seen out of the jurisdiction of the burgh. Now, whatever opinion might have been entertained as to the proper construction of this act if the point had come before us twenty-two or twenty-three years ago; yet now, when the construction to be put upon it has been settled, by the Court which made the act, in two previous decisions, and has been acquiesced in since 1793, it is rather too much to say that the judgment in this case ought to be reversed upon that ground. Your Lordships will observe that this is not an act of parliament, but an act of sederunt, an act of the Court itself; and, in 1793, two cases, depending on the construction of this act, came before the Court, Forbes v. Magistrates of Canongate and Fordyce v. Magistrates of Aberdeen . And there the persons liberated paid as little attention to the obligations of their bonds as Wight is alleged to have done here; and yet, in these cases, the Court, construing its own act, held that the magistrates were not liable; and when the magistrates have been so

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Both on the general ground and on the special circumstances, the judgment to be affirmed.With respect to the special circumstances, the Appellant knew that Wight was out of prison; he allowed him to obtain his cessio bonorum without opposition; * he himself took away and kept the letters of caption for some time: and one strong fact is, that when the Appellant, by his solicitor, Mr. Nathaniel Grant, applied for a copy of the bond of caution granted by Wight and his sureties to the Magistrates of Canongate upon his enlargement under the act of sederunt, and when the keeper of the prison records desired Mr. Grant to say “whether he wished Mr. Wight to be returned to prison,” Mr. Grant in reply “expressly desired that nothing might be done till he gave notice, and declared that he on the other hand would take no step without giving previous notice to the magistrates.” And yet it appears that he raised this action before he gave the magistrates notice that he wished that Wight should be re-incarcerated.But on the general principle it is impossible to place the magistrates of burghs in this state, that

Footnote

* Meaning, that no objection to the cessio was made till after Wight had been found entitled to it by interlocutor of 24th December, 1808. That interlocutor was afterwards reclaimed against, and the cessio was ultimately refused both by the Court of Session and House of Lords. ( Vid, ante vol. ii. p. 377.)

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Judgment affirmed .