Power, - Duty, - Liability of Magistrates relative to Prisoners.
Haliburton v. Provost of Jedburgh
Date: 29 June 1626 Case No. No 17.
Where the debtor was only denounced for the principal sum, the Magistrate was found not liable for the aunualrent which fell due afterwards.
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In an action pursued by Haliburton of Merton contra the Provost of Jedburgh, who for not taking of Mr John Hume rebel, by virtue of letters of caption at the pursuer's instance, was convened for payment of the principal sum, and of the annualrent thereof, since the time of his rebellion, conform to the act of Parliament 1621; the Lords found, that the summons bearing, the rebel was in the Provost's company the time of the charge given to him to take him, ought to be otherways proved than by the officers' execution; which execution they found no ways sufficient to prove the same, and therefore admitted the summons to probation, to be otherwise proved, as accords of the law. Item, In this process the Lords sustained the action against the Magistrate, only for payment of the principal sum, and not for the annual thereof since the rebellion, in respect the Provost could not be debtor for any more than for that sum, for the which the rebel was denounced, and for the which caption was executed; for if the rebel or Magistrate had paid that sum, neither could the rebel then have been taken for the annual since the rebellion, the same not being contained in the horning, nor no caption against him therefore; and so the Lords assoilzied the Provost from that part of the summons, but prejudice to seek the same from the rebel's self, as the pursuer might best do of the law. See Proof.
Act. Haliburton.Alt. Sandilands.Clerk, Gibson.
Fol. Dic. v. 2. p. 171. Durie, p. 205.
