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Scottish Court of Session Decisions >>
James Henderson v John Belches of Tofts and the Magistrates of Edinburgh. [1704] 4 Brn 580 (6 June 1704)
URL: http://www.bailii.org/scot/cases/ScotCS/1704/Brn040580-0074.html Cite as:
[1704] 4 Brn 580
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
James Henderson v. John Belches of Tofts and the Magistrates of Edinburgh
Date: 6 June 1704
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James Henderson, one of the macers before the criminal court, against Mr John Belches of Tofts, advocate, and the Magistrates of Edinburgh, complaining, That when he had incarcerated the said Mr John within the tolbooth of Edinburgh, upon a solemn decreet in foro for 3800 merks, contained in his father's bond, the said Mr John had applied to the magistrates for modifying to him an aliment, conform to the 32d Act of Parliament 1696, seeing he was ready to depone he was not able to maintain himself, unless he were at liberty to go about his employment; and James Henderson having answered, That he could have no aliment modified to him, because he offered to prove he had good and sufficient funds and effects whereupon he might subsist; and the design of the Act I696 was only in favour of poor prisoners having nothing, and who were like to starve and become a burden to the burghs where they were imprisoned, which was not Toft's case; and in the mean time he offered him three shillings per diem for the bygones, and in time coming:
Replied,—His sufficiency to aliment himself could not abide terms of probation, but behoved to be instantly verified, either by his oath or otherwise. And this was not the formal way of tabling the cause before the Lords, by a summary complaint on a bill, but the regular way was by advocation, if iniquity was committed: which could not be pretended; for the bailies had most justly ordained him to consign a disposition of his whole estate, personal and real, and to give his oath thereon; and which he had so done: and, being juratum, there can be no more inquiry; and they also modified twelve shillings Scots per diem till his liberation.
Henderson objected,—That the Bailies had refused to examine on thir interrogatories, If he had not clandestinely conveyed his estate to his lady and children, and other creditors he had compounded with, in defraud of him? and they had unjustly restricted the warrandice of his disposition only to facts and deeds since the decreet, in prejudice of an inhibition he had served on the dependence.
The Lords were sensible the magistrates had generally abused the power given them by that Act, in exorbitant modifications of aliment, and liberating debtors if the same were not paid, and that it deserved to be rectified; but found this complaint came not regularly in, and therefore refused to interpose; but left the Magistrates to proceed as they would be answerable: and if James Henderson found himself lesed by their interlocutors, he had his remedy, by offering an advocation from them.
