Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Smith
v.
The Bailies of Elgin

Date: 27 March 1623

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Smith having pursued the bailies of Elgin, for a debt owing to him by ———, for the which his debtor being apprehended, and put in ward by them, by letters of caption, they thereafter suffered him to pass out, and repair in their free and public streets as a free person: The bailies excepted, that they ought to be assoilyied, because they having taken the debtor conform to the charge executed against them, he was put to liberty by virtue of a charge executed against them at the instance of the debtor, who had obtained suspension of the pursuer's decreet. The Lords repelled this allegeance, in respect the pursuer offered to prove, that before the suspension was purchased by his debtor, and before any charge was given to the bailies to put him to liberty, the debtor was out of ward, and had free course by repairing to the streets at divers times. Which answer the Lords found relevant; for the Lords found it was not enough for the magistrates to incarcerate and take the rebel, except he were detained in prison, and kept therein, until he were freed by order of law; and therefore, albeit he was thereafter ex post facto relieved by a warrant, yet they stood debtors to the party, because he was put out of ward before they had any warrant: neither was this respected by the Lords to free the bailies, that they offered to restore him to ward cum omni causa, and that any freedom he had before the suspension, they would be answerable therefor to the pursuer, concerning any deed done to his prejudice during that time, whereby he might be found less solvendo, than when he was put first in ward; and so seeing the party had no prejudice, and that they should enter the rebel cum, omni causa, they ought not to be decerned to pay the debt. Which allegeance was repelled; for the Lords found, that the warding is a punishment of the debtor, from the which the magistrates cannot relieve him at their own hand, but upon hazard of the debt; and therefore sustained the action.

Act. Lawtie. Alt.——. Scot, Clerk.

Vid. 30th March 1626, Gemmel against Bailies of Glasgow; and 20th November, 1623, L. Aytoun.

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