Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

Archibald Williamson
v.
The Bailies of Hamilton

1680 1682. July 28

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1680. July 28.—Archibald Williamson pursues, by the subsidiary action, the Bailies of Hamilton to pay the sum of , because they suffered Mr John Baillie of Carphin to escape out of their prison.

The Lords repelled the magistrates their whole defence, viz. That he was incarcerated by a collusion, and merely upon a design, in so far as Carphin, the rebel, being both sheriff-depute and bailie of the regality there, he had as much power and command over the jailer and prison of Hamilton as the bailies themselves had; and that he staid not half an hour there, but came forth with the messenger again; and they could have apprehended him since, if the same had been intimated to them; and he afterwards died prisoner in the tolbooth of Glasgow; and, if it had been any thing but a mere trepan to ensnare the magistrates, and get them for debtors, they might have taken him to many surer prisons at no great distance. And found it relevant to make the magistrates liable, in solidum, for the debt—(but it is thought it will divide in equal halves betwixt the two magistrates,)—that the rebel was incarcerated, or delivered to them to be incarcerated; and repelled the reasons.

This the Lords did, lest they should open too large a door for permitting the escape of prisoners. But it would appear, by the words of this interlocutor, that the Lords have not found that the messenger's execution, bearing, that he delivered such a rebel prisoner to the magistrates, and they accepted of him; or the notary's instrument, bearing, that the prisoner was required, and was not found,—do prove the same.

And I think, as in other instruments, for astructing the truth thereof, the witnesses inserted ought to be adduced. See 23d November 1680.

Vol I. Page 110.

1680.November 23.—The Lords found the messenger's execution, bearing, that Mr John Baillie was imprisoned, and the notary's instrument requiring him, and bearing, that he was not there, but at liberty, ought to be proven by the witnesses inserted. Though, in citations, and some other cases, messengers' executions are probative per se, without the witnesses adminiculating them.

Some pretended, the messenger and notary ought not to be admitted, because they had behaved themselves as partial, in giving it under their hands already.

The words of the interlocutor were:—Find the pursuer must yet prove that the debtor was incarcerated, or delivered to be incarcerated.

Vol I. Page 117.

1682. December 23.—Archibald Williamson, merchant in Edinburgh, against the Bailies of Hamilton, (vide 23d Nov. 1680,) for suffering Bailie of Carphin to escape out of their prison:

It being further Alleged, That they could not be liable for his escape, because they were only a burgh of barony, and the prison of the regality of Hamilton was kept elsewhere; and, by decisions in Dury, 12th Feb. 1624, Lanton against The Bailies of Dunse, burghs of baronies were not bound to keep prisoners; and the 273d Act of Parliament, 1597, does not oblige them to it.

The Lords repelled this, in respect it was offered to be proven that messengers were in use to incarcerate prisoners there, and that the bailies of Hamilton were in use to receive them.

Vol. I. Page 204.