Thomson v Magistrates of Kirkcudbright
| Jurisdiction | Scotland |
| Judgment Date | 23 January 1878 |
| Date | 23 January 1878 |
| Docket Number | No. 87. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Ormidale, Lord Gifford.
Act of Grace (1698, c. 32)6 Geo. IV. c. 62, sec. 1LiberationLiability of JailorComputation of Time.
Expenses.
Upon the morning of the tenth day after an award of aliment to a debtor under the Act of Grace had been intimated to the incarcerating creditor (the intimation having been made in the evening), the jailor issued a certificate that there were no funds in his hands for the aliment of the prisoner, which was in fact true, on which certificate the prisoner was forthwith liberated by warrant of a magistrate. Held that, whether the liberation was premature or not, the jailor could not be made liable for the debt, in respect that he had merely in the course of his duty certified a fact which was true.
Question as to the mode of computation of the ten days allowed by the Act of Grace to the creditors within which to provide aliment.
Liability of alleged dominus litis reserved.
James Craik was incarcerated on 26th July 1876 in the county prison of Kirkcudbright for a debt of 31, 3s. 2d., being the expenses of an action of filiation and aliment brought against him by Elizabeth Thomson, for which decree had been taken in the name of Mr Robert Broatch, writer, Dalbeattie, as agent-disburser.
On 18th August Craik applied to the magistrates of Kirkcudbright for the benefit of the Act of Grace (1696, c. 32), and on the same day the sitting magistrate, in presence of Broatch, awarded aliment at one shilling per day as from the date of incarceration, and appointed intimation to the creditors incarcerators in common form, certifying to them at the same time that if no aliment be in the jailor's hands ten days after such intimation the prisoner will be set at liberty in terms of the statute.
A copy of the deposition and deliverance was accordingly addressed and sent by post to Broatch for himself and as agent for Thomson. The letter reached Broatch about 6.40 p.m. of the next day, the 19th.
On the morning of 29th August, William Geddes, the governor of the prison, issued this certificate:I certify that no aliment is in my hands for maintaining the within designed James Craik.
This was laid before one of the magistrates, who granted this warrant:On above certificate you are authorised to liberate the prisoner.
Craik was accordingly liberated about 8.30 that morning. About an hour after the liberation, by that morning's post, Geddes received a letter from Broatch enclosing 2 as aliment. Craik soon after his liberation obtained decree of cessio.
The present action was raised in the name of Elizabeth Thomson, to whom Broatch had assigned the decree...
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