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Scottish Court of Session Decisions >>
Jean Pitcairn v Euphan Deans, and Preston of that Ilk, a Justice of the Peace. [1715] Mor 13948 (18 February 1715)
URL: http://www.bailii.org/scot/cases/ScotCS/1715/Mor3213948-031.html Cite as:
[1715] Mor 13948
Jean Pitcairn v. Euphan Deans, and Preston of that Ilk, a Justice of the Peace
Date: 18 February 1715 Case No. No 31.
Found that a warrant granted by a Justice of the Peace, for imprisoning a married woman for a civil debt, was illegal, and therefore that he was liable in damages.
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Ralph Morton, writing-master, being under diligence for a debt contracted by Jean Pitcairn his wife, before the marriage; Euphan Deans, relict of Robert Newlands, glover, becomes caution for the same; and Morton having absconded, and Mrs Newlands distressed for the debt, she obtains a summary warrant from a Justice of Peace, without calling or certiorating Mrs Morton, to imprison her till she should relieve her of her cautionry: And the because in the warrant is, That Mrs Morton had circumvened Mrs Newlands, and was guilty of a premeditated cheat and breach of trust, was in meditatione fugæ &c. In an application to the Lords, by complaint.
It was alleged for the plaintiff, 1mo, That a Justice cannot grant a summary warrant for imprisonment, till the party be cited and brought before him, except only where there is appearance of breach of the peace, as is plain by the instructions to the Justices. 2do, That she being vestita viro, could not be imprisoned for a civil debt; and though she could, a Justice of Peace is not a competent authority to imprison for such a cause, 3tio, That this was of very bad consequence, for if a Justice of Peace can grant a warrant for summary imprisonment, upon no better instruction than a party's signing a complaint, all other diligence will for ever cease; and poor people, who are not able to find cautioners, must remain perpetually confined, and exposed to humour or ignorance.
Answered for Mrs Newlands, to the first, That upon any signed complaint of a crime, such as adultery, cheating, &c. which are not done by violence, (and therefore not properly breaches of the peace, but simple transgressions of the law) the Justices can attach till bail be found; and even in capital crimes, though they cannot judge, they can imprison, and present the criminals to the proper court, especially since they were put on the same footing with the Justices in England, where it is notour that almost all processes begin with arresting the person. To the second, That the argument militates against Mrs Morton, since her being vestita was the very reason for using this method, to attach her for fraud, because she could not be reached in common form. To the third, That there is no reason to fear these consequences, since, 1mo, That it can scarce happen in an age that such a complicated injustice should be attempted; 2do, No body who can by ordinary diligence force payment, will rest satisfied with a Justice's warrant, which at most lands in caution.
The Lords found, That the warrant granted by the Justice of Peace was illegal, being for imprisoning a married wife for a civil debt, and therefore found that the said Justice of Peace was liable in expenses and damages to the plaintiff.
Act. Boswell.Alt. ——Clerk, Robertson.
Fol. Dic. v. 2. p. 341. Bruce, v. 1. No 79. p. 95.
