Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
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To shut up this Winter Session 1675, and January and February 1676 with a remark should have been set down in the beginning of it, because it happened then, viz. Captain Martin's escape furth of the tolbooth of Edinburgh, where he was imprisoned by command of the Lords of Session, till the event of a plea depending against him, upwards of L.5000 Sterling value of goods he had, in a manner by piracy, taken out of a ship he pretended to be a lawful prize. One night he made his escape in women's apparel, and Patrick Vans, the keeper of the tolbooth, upon a petition given in to the Lords of Session, got himself assoilyied of all negligence upon his part, that so the subsidiary action might not recur against him, after the debt for which he was imprisoned were constituted against him; which would have been very difficult, he being escaped, and they having had many things which required clearing by his oath; which absolvitor proceeded also on this second ground of law, that his escape was merely casus fortuitus, qui nulla humana prudentia prævideri poterat, and so could not be attributed to omission in point of duty; and yet it was cried out upon, as most unjust, both as to matter and form, and that it would not hinder but he might be convened by the creditors for Martin's debt, they not being heard, and so res inter alias acta could not prejudge them. Vide supra, November, 1672, No. 374.
