Power, - Duty, - Liability of Magistrates relative to Prisoners.
Bailies of Dunse v. Mudie's Creditors
Date: 13 March 1623 Case No. No 13.
Bailies of burghs of barony cannot be compelled to take a rebel.
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The Bailies of Dunse, which is but a burgh of barony, being charged to take Robert Mudie, who was rebel at the horn, and having suspended on this reason, viz. that they being but Bailies of a burgh of barony, they ought not to be compelled to execute such charges, if any should be directed against them, in respect their jurisdiction and authority extended only to execute decreets and acts of their own courts, and that their power might go no further, and that it is against equity to urge them to do that which their power will not answer; the Lords found, that Bailies of burghs of barony ought not to be compelled, and so ought not to be charged with such charges as to take the King's rebels; but all such charges should be directed to officers and Magistrates of greater power and authority than Bailies of baronies, either where there was erection of burghs of baronies, or where there was no burgh; and therefore found the reason relevant; albeit it was alleged against the reason of the chargers, that they had ever been in use before to execute such charges for apprehending of rebels, which use was not respected by the Lords; and therefore they suspended the charge against them simpliciter.
Fol. Dic. v. 2. p. 166. Durie, p. 59.*** Haddington reports this case:
The Bailies of Dunse being pursued for not taking Mudie, being at the horn, according to the charge executed against them; the Lords found, that they being only Bailies of a burgh of barony, could not be lawfully charged by the King's letters to take horners, they not being the King's officers. It being known, that few of the Bailies of burghs of barony were of power to take rebels.
