Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

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v.
The Bailies of Perth

Date: 6 July 1631

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The magistrates being convened by a creditor, for payment of the debt, because, the debtor being incarcerated in their tolbooth, they suffered him to escape; and the defenders alleging that the rebel brake the tolbooth in the night, and came out at the roof of the house, and so escaped, without the knowledge, consent, or accession of the magistrates, or any fault on their part; the house being a sufficient ward-house, where there was no infirmity or defect, and being sufficiently timbered and slated in the roof; so that, therefore, it were hard to find the magistrates liable in the debt, who had not failed;—this allegeance was found relevant, being proven, to liberate the magistrates; seeing neither they, nor the keeper of the jail or prison, was alleged to be accessory, or to know of the escape, or that they had failed, or alleged to have omitted to do any thing which, in such cases, are incumbent to be done by them, in their duty of their offices; neither did the party qualify any insufficiency to have been in their tolbooth out of the which the rebel escaped; but, by the contrary, the bailies offered to prove it to have been always sure and sufficient as other warding-houses are, for keeping of prisoners, before this violent escape done in the night.

Act. ——. Alt. Chaip.

Vid. 13th July 1630, Hay; 21st November 1628, Lockie; 11th November 1634, Bower; penult January 1627, Ker.

Page 592.