Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

A B.
v.
John Cuthbert, Bailie of Inverness

Date: 12 November 1634

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A. G. pursues James Cuthbert, bailie of Inverness, for having committed A. B. to ward, at the pursuer's instance, by letters of caption for the sum of £95: Suffered him to escape; and, therefore, convened the said James Cuthbert for the debt. It was alleged for the defender, That he cannot be pursued for the debt; 1 mo. Because he committed the debtor to ward conform to the caption, there to remain upon his own expenses; and he offers him to prove, that the debtor remained in ward till he had no means to sustain himself. 2do. He offered him to prove, that the debtor blew up the lock of the tolbooth-door with quicksilver. 3tio. That he ought to be assoilyied; because he offers him to prove, that — Bishop, who was conjunct bailie with him for the time, was the outputter of the rebel; for whose deeds he ought not to be answerable, especially seeing the said bailie was of equal power with him, and is now become bankrupt. To the which it was replied, That, although the rebel was poor, yet the bailie had no power by his authority to put him to liberty, but should have caused the rebel to mean himself to the Lords, that they might have taken order for his entertainment. To the second, It was not relevant, seeing the defender used no diligence for apprehending the rebel again, after he had escaped. To the third, It was lawful for him to pursue either the whole bailies, or any one of them that was most responsal; because they are conjunctim in officio; and, if his colleague be unresponsal, the other bailie, pursued, may seek his relief off the town, for choosing an unresponsal bailie. The Lords repelled the haill allegeances, in respect of the reply.

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