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Smith v Williamson. [1642] Mor 11705 (24 January 1642)
URL: http://www.bailii.org/scot/cases/ScotCS/1642/Mor2811705-033.html Cite as:
[1642] Mor 11705
Power, - Duty, - Liability of Magistrates relative to Prisoners.
Smith v. Williamson
Date: 24 January 1642 Case No. No 33.
Magistrates will not be excused by the circumstance that the prisoner has not been booked, that being the duty of the keeper.
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George Wilson, smith in Edinburgh, having charged Gilbert Williamson, one of the Bailies of Edinburgh, to incarcerate one Hay, rebel, at his instance, and conform to the charge being put within the tolbooth of Edinburgh, where-out of he escaped; pursues George Suitie and George Rynd, who were two Bailies with the said Gilbert, (he being now deceased) conjunctly and severally to pay the debt; and they alleging, That they could not be convened, but only the heirs and executors of the Bailie who did the wrong; the Lords found, that the party had good action against any of the Magistrates surviving, conjunctly and severally, as well as against the Magistrate deceased, if he were living; and sustained the process against the parties called, without necessity to pursue the heirs or executors of the Magistrate deceased. In this process, the Lords found it not enough; to prove it by the messenger's execution, that the rebel was warded by that Bailie's command; but found, that it ought to be proved by the witnesses of the execution and the messenger, or by other lawful witnesses or other legal probation; and found no necessity to prove it by the note of the jaylor's book, seeing this pursuer was but a poor smith, and had not so much money to pay the jaylor as he uses to take for in booking of warders, which he affirmed to be ten or thereby for every hundred for which he was incarcerated; which the Lords found that they would try, and take order for to amend that abuse. See Proof.—Solidum et Pro Rata.
Act. ——.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 2. p. 168. Durie, p. 888.
*** A similar decision as to booking was pronounced, 6th November 1683, Shaw against Vanse, No 6. p. 9354, voce Oath.
