An assignee who had incarcerated a debtor upon caption at his own instance, was found obliged to produce the assignation in an action against magistrates for allowing the debtor to escape.
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A debtor being incarcerated by letters of caption, at the instance of the assignee constituted by the creditor to the bond, registered at the creditor's instance; after the registration whereof, he having made this assignation to this pursuer; the pursuer, as assignee, having raised letters of horning, and denounced him, and thereafter, by caption, having caused incarcerate the rebel; who escaping, the Magistrate being convened for the debt; he alleged, That no process ought to be granted, while the assignation were produced. And the pursuer replying, That he needed not produce the assignation to this defender now, who was not convened nisi ex suo delicto, for he was not here in pursuing his cause upon his titles, as if he were in ingressu litis, where he might be urged to produce the same; but it was enough to him to show, that his debtor was rebel, and that he was apprehended, and that the defender is become liable to the debt, for the debtor's escape; notwithstanding of the which answer, the Lords found no process while the assignation were produced.
Clerk, Gibson.
Fol. Dic. v. 2. p. 181. Durie, p. 616.
