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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Elisabeth Strachan v. Bailie Nairn
Date: 30 July 1706
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Strachan against Nairn. Complaints being made to Bailie Nairn in Dalkeith, that one Elisabeth Strachan, dwelling there, was a common resetter of thieves, and stolen goods, and particularly of one Mary Cockburn, a notour thief, there is a process raised against her at the fiscal's instance; and, on probation, she is incarcerated, and her goods seized on: whereupon she raises a process before the Lords, against the said Bailie, for wrongous imprisonment, and so much per diem, conform to the Act of Parliament 1700, and likewise for spuilyie of her goods.
Alleged,—She, being attacked and convicted for reset of theft, was not in the terms of the said Act, which related mainly to state crimes, and excepted thefts, as to which the procedure was allowed to be the same as it had been formerly; and it was proven she was a seducer of servants and children to pilfer and steal, and a resetter of such persons. And, as to the spuilyie, it was done by virtue of a decreet and authore pratore, and so could never be a spuilyie.
Answered,—He could never incarcerate her till he first subscribed a warrant, condescending on the causes of her imprisonment, and give her a double of it; none of which was done. And her receiving Mary Cockburn to lodge in her house was no crime, not being conscious to her dishonesty, neither is it proven. And though his seizing on my goods might not be a spuilyie, yet there is ground enough for having her goods restored, and her damages refunded: which is small enough reparation for the injury done her good name and fortune.
The Lords found her not in the case of the late Act of Parliament 1700, anent wrongous imprisonment; and found no spuilyie; and therefore assoilyied from both the branches of the libel.
