Power, - Duty, - Liability of Magistrates relative to Prisoners.
L Aiton v. Aitkin
Date: 20 November 1623 Case No. No 14.
The rebel must be entered at the precise day.
Click here to view a pdf copy of this documet : PDF Copy
The L. of Aiton being obliged by bond to enter Mr Alexander Hume in ward, who was taken with caption at the instance of George Aitkin, and this bond bearing, that either he should enter him at a certain day contained in the bond, or else to pay the sum for which he was denounced and taken; whereupon Aiton being charged to pay the sum for not entry of the rebel; he suspends upon this reason, that at the day appointed for entering the rebel, he and the said Aitkin to whom he was debtor, were trysting among themselves anent a transaction for the debt, which put the defender in bona fide not to keep the precise day of the bond; and how soon he knew that they had not agreed, he within four or five days after the day appointed by the bond, offered to enter the rebel, at which time he was always in as good estate as he was at the day contained in the bond, and at the time of the granting thereof; which ought to be found sufficient to purge the failzie, and to liberate the suspender, seeing the charger could not qualify any prejudice sustained by him, by not keeping of the precise day of the bond; likeas he yet offered to enter him in the same estate he was in at the time of the giving of the bond, et cum omni causa. The Lords found the letters orderly proceeded notwithstanding of this reason, because the rebel was not entered at the precise day contained in the bond.
Act. Hope et Belshes.Alt. Niclson et Forbes.Clerk, Gilson.
Durie, p. 81.*** Haddington reports this case:
It is lawful for a party to take a man, obliged under the pain of a sum, to enter a rebel in his house, to remain there prisoner till he pay the debt owing to him, and to exact the penalty, if the party obliged enter not the rebel at the day.
Haddington, MS. No 2930.*** Kerse also reports this case:
Found, that a Bailie should pay the debt for letting the rebel free, notwithstanding he offered to prove, that he put the rebel thereafter in ward in eodem statu, cum omni causa, and that he was yet in ward.
