Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Laird of Pitcurr
v.
The Laird of Dun

Date: 19 February 1679

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The Laird of Fullertoun being taken with caption at the instance of Pitcurr, the Laird of Dun interposed, and gave bond with him to present his person prisoner, in the tolbooth of Dundee, upon the 1st day of February last, or else to pay the debt: Fullertoun appeared in the tolbooth the said day, between ten and twelve, which was the day appointed; and instruments were taken thereon in his name and Dun's: there was also an instrument taken by Pitcurr's procurator, that he had attended with Dun's bond and caption, in the upmost storey of the tolbooth, where prisoners used to be incarcerated, from nine to one of the clock the said day; and thereupon protested, that Dun might be liable for the debt.

And, having charged him upon this bond, Dun suspends on this reason,—That he had performed, by Fullertoun's appearing, the time appointed, within the tolbooth.

The charger answered, That the suspender had not fulfilled: 1mo. Because he had not entered him prisoner, unless he had presented him to the jailer or magistrate, as a prisoner, and had required them to call publicly if there was any person having Pitcurr's caption that might have necessitated the magistrate or jailer to detain him prisoner: in which case, Pitcurr's procurator, who was attending above, in the tolbooth, in the room where prisoners used to be incarcerated, would have produced the caption: but all that Fullertoun did, was to come to the council-house, the doors whereof were and are ordinarily patent, and where prisoners stay not. 2do. The bond bears,—“That Fullertoun should present himself to remain prisoner for fulfilling the will of the letters of caption, and should procure no suspension.”

It was replied, That this last clause was not a part of the obligation, but did only express the end for which Fullertoun was to be presented; otherwise that would import, that if, at any time, he should have escaped, Dun should have been liable; which could never have been understood, unless it had been so expressed.

The Lords found Dun's bond not to be fulfilled by the instruments produced; seeing he offered him not to the magistrate as his prisoner, and required him to call for the other party to produce the caption: but did not find Dun liable for his escaping, if he were once a prisoner.

Vol. II, Page 697.