Power, - Duty, - Liability of Magistrates relative to Prisoners.
Smith v. Bailies of North Berwick
Date: 25 July 1626 Case No. No 18.
Found a sufficient defence to Magistrates pursued for refusing to receive a prisoner, that the messenger by whom he was apprehended had been deprived by a sentence, or separatim, that publication had been made of his deprivation.
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The Bailies of North-Berwick being pursued by one Smith, for payment of a sum addebted to him by one Lawder, in respect they being charged by caption to take him, they did not the same, he being in their company; the defenders alleged, That they did no wrong in refusing to take the said rebel, because the messenger who charged them, was deprived of his office, before the charge given to them; which deprivation was published at the market-cross before the same charge, for verifying whereof they produced a testificate subscribed by Sir Jeromy Lindsay, Lyon King at Arms, bearing, That he had deprived him, and had caused lawfully publish the same. The Lords found not this testifícate sufficient, but astricted the excipients to prove, that the officer was deprived, either by production of a decreet of deprivation, or by production of a lawful publication of his deprivation; either of the which being positively alleged, viz. either that he was deprived by a sentence, or that there was publication made of the deprivation, albeit they alleged not a sentence preceding depriving him, but only that publication was made that he was deprived, the Lords found any of these two relevant, and any of them being proved, to be sufficient to elide this pursuit. See Proof.
