Scottish Court of Session Decisions

Subject_1 PRISONER.
Subject_2 SECT. I.

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

Antrobus
v.
William Anderson, Provost of Glasgow

Date: 13 June 1667
Case No. No 40.

Magistrates were exculpated, because when concurrence was required, the Magistrate was necessarily taken up in the King's service; the concourse of the town-officers was offered; it was late at night; and the rebel was previously bankrupt.

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William Antrobus having caption against John Herbertson in Glasgow, the messenger having therewith taken Herbertson in his own house, and having required William Anderson present Provost to concur and put him in prison, and he refusing, pursues now the Provost for payment of the debt. The defender alleged, 1mo, That the libel was not relevant, because it did not subsume, that the rebel was shown to the defender; 2do, The defender was required, at an unlawful time, being betwixt eleven and twelve at night; 3tio, The defender offered the concourse of the town-officers; 4to, The army being come to Glasgow that night, the Provost was taken up at the time he was required, with the ordering of their quarters, which being a public service of greater importance, the offering of the officers was sufficient; 5to, This subsidiary action being but for the pursuer's damage, he can pretend none, because the rebel was bankrupt and insolvent long before, and he was incarcerated within some few days, where he remained a long time, during which the pursuer might have arrested him; and the defender yet offers to put him in prison in as good case as he then was. The pursuer answered, that his libel was most relevant, because the letters being directed to Provosts and Bailies of burghs, if they be required, albeit the rebel be not in their sight, they must go with the user thereof, to any place within their jurisdiction, which they must do in their own persons, and it will not be sufficient to send their officers, and as to the time of requiring, any time that men do use to go about their affairs is sufficient, and the defender was required between seven and eight at night, and albeit that it had been later, that the defender might be excusable not to come out of his own house to search, yet here he was in the same house with the rebel, and in the next room to him, and heard the noise of those that deforced the messenger, which was done by the town's officers; neither can any pretence of ordering of quarters stop the execution of the King's letters, which might have been done with so little diversion, and the quarters might have been ordered by the Bailies.

The Lords found the libel relevant; but found the defences jointly also relevant, viz. The ordering of the quarters of the army, the ordering of the officers, and the offer now to put the rebel in prison, in as good case, and the time of night.

Fol. Dic. v. 2. p. 168. Stair, v. 1. p. 460. *** Dirleton reports this case:

George Antrobus, Englishman, pursues William Anderson, Provost of Glasgow, for L. 234 : 13s. Sterling, due by John Herbertson, sometime Bailie of Glasgow, upon that ground, that being charged to take the debtor upon letters of caption, he had refused to concur with the messenger. It was alleged, That the defender was not in sight of the rebel; and thought it be pretended, that it was shown to the defender, that the rebel was in the same house in another room for the time, yet the defender being chief Magistrate and Provost of the town, he was not obliged to go himself to seek the rebel; and it was sufficient he was willing to send his officers, and did send them to that effect, especially it being considered, that the Provost was charged about nine of the clock under night; and the army having come that same night to Glasgow, he was, the very time that the messenger charged, with the Quarter-Master, and other officers; about the business of quartering the forces; all which amounteth to a relevant defence to free the defender of an odious pursuit; the pursuer having no prejudice, in respect the rebel was and is notourly bankrupt, and was imprisoned a few days after, and continued a long time prisoner in Glasgow.

The Lords found the allegeance relevant.

The Lords are in use to sustain such actions in subsidium against Magistrates for payment of the debt, when they suffer the debtor to escape out of prison; but when a Magistrate is charged with letters of caption, bearing no certification, but horning, it appears hard to me, that the law having defined and prescribed the pain and certification, that the Lords should sustain any other penal action without the warrant of an act of Parliament; and that the Magistrates for a culpa or neglect, should be liable to the whole debt, which may be a great sum. If the action be considered, not as a penal action, but for damage and interest, it should be only sustained, in so far as the creditor is prejudged; so that the debt being either recoverable, and the debtor in as good case as before, or being bankrupt the time of the charge, the Magistrates may be denounced upon the caption, or censured for their contempt, but ought not to be liable for the debt in solidum.

Clerk, Scot. Dirleton, No 78. p. 32.