Competent to a Defender to found upon a third party's interest, or other argument, to show there is no ground of claim.
Wyllie v. Bailies of Wigton
Date: 25 June 1642 Case No. No 16.
Magistrates who had liberated a prisoner without warrant, and were liable for the debt, were found entitled to plead every objection to the debt, which would have been competent to the debtor.
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One John Ross being taken and warded, by letters of caption, at the instance of Thomas Wyllie, by the Bailies of Wigtoun, and thereafter they setting him at liberty, they are pursued for payment of the debt therefore. And they suspending, that, after he was incarcerate, there was, in a space thereafter, shown to them, a suspension of that decreet and debt for which he was incarcerate; to the which the creditors answered, That that suspension was impetrate before the party was warded, and was not shown as it ought to have been the time he was warded, nor long thereafter; and after he was warded, the Magistrates could not; at their own hands, put him to liberty, they never being charged to that effect, and the suspension bearing no such clause; likeas, the party remains still rebel, and was never relaxed, and the charger was never summoned to the day of the suspension; so that they cannot be excused to have enlarged the rebel at their own hands, without warrant.—And the Bailies further answering, That they had dealt with the Sheriff of Wigtoun to take the rebel again, who took him; and, since he was taken, he died in his company, at which time he was in that same state undeteriorate, as he was in when he was taken; all which being considered, should be enough to liberate the Bailies, who are but of a mean burgh, and ignorant of the strict points of law; the Lords repelled the exception, and sustained the pursuit, seeing it was found, that they could not enlarge the party, once warded, at their own hands without warrant, specially when the debtor was three years at liberty after he was put out of ward, before he died. But the Lords permitted the Bailies to say all which the party might say against the debt, if he were living, and to insist in the suspension.
