Competent to a Defender to found upon a third party's interest, or other argument, to show there is no ground of claim.
Hay v. The Earl of Marishall
Date: 14 July 1630 Case No. No 15.
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A Magistrate being charged (even by the first charge) to apprehend a rebel, if he after that have communication with him at any time within year and day, after the charge, and do not apprehend him, he will be liable for the debt owing by the rebel. But attour year and day this will not be sustained upon an old charge.
Fol. Dic. v. 1. p. 516. Spottiswood, (Caption.) p. 32.*** Durie reports this case:
The Earl of Marshall, as Sheriff of the Mearns, being pursued by a creditor to pay the debt for not taking of the rebel, he being charged to take him because he kept company with him divers times thereafter; the Lords found, that that charge given to the Magistrate should make him liable for obedience thereunto, for the space of a whole year after the date of that charge given to him; and that the same lasted, and was effectual against him during all that space of one year, but for no longer time; and albeit the debt was paid to the principal creditor by one of the cautioners for the rebel, yet that thereby the Magistrate was holden to obey the charge given to him at the said creditor's instance, the rebel not being relaxed, seeing the cautioner, who paid for the rebel, might use the creditor's name for his relief, by charging to take the rebel; and albeit the creditor conversed after the charge with the rebel in Aberdeen diverse times, the said creditor being then Bailie, whereby he had power and occasion to take the rebel; yet the Lords found the Sheriff not liberate thereby, from obeying the charge given unto him; neither was the Sheriff's offer, to enter the rebel in as good estate, et cum omni causa, as he was the time of the first charge, sustained nor received, seeing there were three years past since he was charged; albeit the Sheriff excused himself with a treaty, which was diverse times thereafter kept betwixt the creditor and the rebel for his satisfaction, whereby he had probable cause not to take him; and albeit also that he took him, and incarcerate him in Dunnottar, out of which ward he escaped, and left the keeper for dead; which was not respected, seeing he was not put in ward in a public goal, and was not detained in that ward in Dunnottar in sure firmance, having escaped for want of a sufficient number to guard him, there being only an old porter to attend him, whom the rebel wounded and escaped, whereas, if there had been a sufficient guard, he would not have escaped: See Prisoner.
Act. Hay et Davidson.Alt. Nicolson.Clerk, Hay.
Durie, p. 530.
