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Scottish Court of Session Decisions >>
Husband v Cairnie. [1749] Mor 3 (26 July 1749)
URL: http://www.bailii.org/scot/cases/ScotCS/1749/Mor0100003-005.html Cite as:
[1749] Mor 3
The keeper of the Abbey prison liable, if a debtor escape through his fault.
The manner of the imprisonment in the Abbey prison.
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In an action at the instance of Paul Husband merchant in Edinburgh, against Alexander Cairnie, late prison-keeper in the Abbey of Holyroodhouse, for payment of a debt of L. 8: 7s. Sterling, due to him by George Beveridge, and which Beveridge had contracted while in sanctuary in the Abbey; on the ground, that Carnie, while jailor of the Abbey prison, had allowed Beveridge, imprisoned at the instance of another creditor, to go out of prison, although arrested by Husband; and although Husband had paid Carnie the ordinary dues, and had advanced to him money for the prisoner's aliment, as usual: Some of the Lords doubted if any action lay against the prison-keeper of the Abbey at all; for that it was not clear, 1mo, That there could be a prison within a royal asylum; 2do, That even in a royal borough such action lay against the jailor.
But as such prison, for debts contracted within the Abbey, has been in use by long practice; and as the same doubt was formerly made and over-ruled, as observed by Fountainhall, 12th June 1708, Cockburn supplicant, No 2. h. t.; and as the Court thought, that where an escape happened by the fault of the jailor, he would be liable in the debt as damage: The Lords, before answer, allowed a proof as to the usual way of keeping prisoners incarcerated within the Abbey, for debts there contracted.
And it appearing, upon advising the proof, that the prison of the Abbey had, till lately, been no other than the jailor's house; that of late, when one Brown was jailor, he had, for the conveniency of his house, built a little hut, with a fire place, and room for a bed, within his close, wherein he kept the prisoners; that when Cairnie succeeded him as jailor, Brown agreed to keep the prison as formerly; and that Beveridge had been sometimes allowed to come from the hut into Brown's house:
The Lords “found the jailor not liable;” for, by the prisoner's being permitted to be in the jailor's house, or close, he was not out of prison more than in a common jail he is out of prison when allowed to go into another room.
