Scottish Court of Session Decisions

Subject_1 PART I.

BURGH-ROYAL.

Marshall
v.
Lamont

Date: 8 March 1803
Case No. No. 14.

An act of warding may be executed without any previous Search for moveables belonging to the debtor.

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Hugh Marshall, distiller in Rothesay, was indebted by a bill for £9. to Duncan Lamont, farmer in Toward, Argyllshire. Having failed to discharge the debt, he was incarcerated in the prison of Rothesay, (9th June 1791), upon an act of warding granted by the Magistrates.

In an action of damages brought for wrongous imprisonment, it was, among other circumstances, pleaded, that no legal act of warding could be granted “for apprehending and incarcerating the debtor until he pay the debt,” unless the officer first return an execution, “that he went to poind the debtor's effects, but could find none,” or make oath to that effect: That in direct violation of this rule, the act of warding had been obtained, without any previous search for moveables to obtain payment by poinding,

At advising the cause, a certificate was produced from the City Clerk of Edinburgh, bearing, that it was not the practice to require a search for moveables or a poinding previous to granting and executing the act of warding.

The Court accordingly adhered to the interlocutor of the Lord Ordinary, finding that Marshall was legally incarcerated.

Lord Ordinary, Woodhouselee. Act. Fletcher, Wright. Agent, D. Macgowan. Alt. Wemyss. Agent W. Beveridge, W. S. Clerk, Colquhoun. Fac. Coll. No. 94. p. 207.