Lamb v Magistrates of Jedburgh.Lamb v Sprunt
| Jurisdiction | Scotland |
| Judgment Date | 18 July 1865 |
| Date | 18 July 1865 |
| Docket Number | No. 205 |
| Court | Court of Session (Inner House - Second Division) |
Lord Mure. I.
Burgh—Liability of Funds for delict of Magistrate—Act of Grace, 1696, c. 32.—
IN these actions Peter Lamb, the pursuer, sued the Magistrates of Jedburgh and Charles Sprunt, keeper of the prison at Jedburgh, for a debt due by John Lamb, gardener, Kelso. In the action against the Magistrates the pursuer averred that, having obtained decree against Robert Lamb and John Lamb, gardeners in Kelso, the decree was extracted, and the debtors charged for payment. The charge was thereafter recorded, and warrant of imprisonment obtained. ‘(Cond. 3.) On the evening of Friday, 12th December 1862, John Lamb was, in virtue of said warrant of imprisonment, incarcerated at the instance of the pursuer, in the prison of Jedburgh, for non-payment of said debt. He was regularly booked, and 10s. consigned in the hands of Charles Sprunt, the keeper of the prison, in terms of the statute. (Cond. 4.) On Saturday, 13th December 1862, the prisoner presented a petition to the provost and bailies of Jedburgh for aliment under the Act of Grace. The bailies fixed the 16th December for the prisoner's examination, and ordered service on the incarcerator or his agent. On that day the prisoner was examined in presence of William Elliot, one of the bailies of the burgh of Jedburgh; and, of the same date, the bailies pronounced the following interlocutor:—' Finds that the petitioner is an indigent prisoner, and entitled to the benefit of the Act of Grace; therefore modifies to him an aliment of 10d. per day, payable by the incarcerator; appoints intimation thereof to be made to the incarcerator, and him certified that unless said aliment be lodged, or security granted therefor, within ten days after intimation, making allowance for the 10s. lodged at incarceration, the petitioner will be set at liberty.' This interlocutor was intimated to the pursuer's agent on the same day. (Cond. 5.) Before the expiry of the ten days from the date of the said intimation, the pursuer sent, on the morning of the 26th December, to the jail, a sum of aliment. But he then found that the prisoner had been liberated by the Magistrates on the 24th of December, and that without waiting for the expiry of the ten days from the 16th. The warrant for the liberation of the debtor was granted by the Magistrates about eleven o'clock on the forenoon of the said 24 th day of December 1862, and the debtor was immediately thereafter set at liberty in virtue of said warrant. (Cond. 6.) At the time of the prisoner's liberation, the 10s. lodged when Lamb was incarcerated were not exhausted. Aliment was provided for the whole of the 24th of December, in the course of which day he was liberated, and, after his liberation, there still remained a sum of aliment in the hands of the keeper of the prison. (Cond. 7.) By this liberation the diligence of the pursuer has been frustrated, and the means of enforcing payment of his debt rendered unavailing.’
The pursuer pleaded;—(1) The prisoner having been improperly liberated by warrant of the Magistrates of Jedburgh, before the expiry of ten days from the date of their interlocutor of 16th December, and of the intimation thereof to the pursuer, the defenders, the Magistrates and Town-Council of the burgh, are liable in payment of the debt to the pursuer. (2) The prisoner having been improperly liberated by the Magistrates, before the sum of aliment lodged at his incarceration was exhausted, the said defenders are liable to the pursuer in payment of the debt and expenses libelled.
The Magistrates pleaded;—(2) The certificate that the aliment was exhausted having been granted, not by the present defenders, but by the keeper of the prison, the present defenders are not responsible therefor. (3) The warrant of liberation having been a judicial act pronounced by the...
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Thomson v Magistrates of Kirkcudbright
...to pay the same, and reserve to the said Robert Broatch his defences thereto as accords. 1Lamb v. Magistrates of Jedburgh, July 18, 1865, 3 Macph. 1105, 37 Scot. Jur. *Note..The governor, in certifying that there was no aliment in his hands for that prisoner did no more than his duty, there......