Scottish Court of Session Decisions

Subject_1 PRISONER.
Subject_2 SECT. I.

Power, - Duty, - Liability of Magistrates relative to Prisoners.

Sir John Baird
v.
The Magistrates of Elgin

Date: 25 January 1665
Case No. No 39.

Magistrates not liable for a prisoner escaping vi majore.

Magistrates liable for the debt of a person escaping, the he had taken the benefit of the act Debtor and Creditor.

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Sir John Baird pursues the Magistrates of Elgin for the debt of a rebel, whom they suffered to escape forth of their prison. It was alleged for the Magistrates, Absolvitor; because they could be obliged no further, but for their ordinary diligence of custody, but not contra vim majorem, and offered to prove, that about six o'clock at night, in the winter time, the rebel's Lady going in to sup with him, the keeper opening the prison door to let her in, six or seven armed men pressed in with her, and that there were sixty more at the gate. The pursuer answered, Non relevat, because it was the keeper's fault to let in any body at that time of night.

The Lords found the defence relevant to be proved by witnesses above exception, which were condescended on.

1665. February 17. Sir John Baird pursues the Magistrates of Elgin for the debt of a rebel, escaping out of their prison, who alleged, Absolvitor, because the rebel had the benefit of the act, Debtor and Creditor; and produced the clerk of the bills' certificate thereupon, when he was offered to prison, and being imprisoned jointly for another debt. The Magistrates protested, that they accepted him not prisoner for this debt. It was answered, That the benefit of the act contains an express nullity, if the annualrents be not paid conform thereto. The defenders answered, That they could not be judge to the discharge, and that upon the like case of a protection of the King's, the Magistrates of Stirling were liberated.

The Lords repelled the defence, unless the clerks attest the discharge had been first produced, or shown to the Magistrates before the prisoner was let go. In which case, they might either have refused him, or let him go free.

Fol. Dic. v. 2. p. 170. Stair, v. 1. p. 254. & 272. *** Gilmour reports this case:

Robert Dunbar of Burgie being apprehended upon a caption at the instance of Sir John Baird, and delivered to the Magistrates of Elgin, for not-payment of two debts, one above L. 1000, and another beneath; after he was a fortnight in prison, he escaped, whereupon the Magistrates, are convened actione subsidiaria for suffering him to escape out of their prison; and for payment of the debt. It was alleged, That they could not he decerned to pay the greater sum, because the rebel had taken the benefit of the act of Parliament betwixt debtor and and creditor, and shew a testificate thereof under the clerk to the bills his hand the time of his apprehension; whereupon the Magistrates took instruments, and protested, they should not be holden to detain him in prison for that debt. It was answered, That the allegeance was not relevant, unless it had been made appear, that the rebel had paid his annualrents conform to the act. Replied, That the Magistrates were not judges to the payment or not-payment of the annualrents; and alleged a practick, where the Magistrates of Stirling being charged to take a rebel who had the King's protection, suffered the rebel to pass, without taking notice whether the annualrent was paid or not. Duplied, That the rebel had not the benefit of the act, unless the annualrents had been paid, according to the express condition thereof. Likeas, the rebel being imprisoned, they were in mala fide to suffer him to escape, unless upon the said act they had gotten a charge to put him at liberty, which he could not have obtained, except he had shown, that the annualrents were paid; and the practick meets not, for, in the other case, the rebel was not at all imprisoned.

The Lords repelled the allegeance and duply; and thereafter, it was alleged that he had escaped vi majore, which the Magistrates could not foresee, nor prevent, which, as it was qualified and found relevant, was admitted to probation.

Gilmour, No 143. p. 103.