Power, - Duty, - Liability of Magistrates relative to Prisoners.
Farquhar v. The Magistrates of Elgin
Date: 2 July 1669 Case No. No 44.
The Lords found Magistrates, being charged, obliged to take a rebel, and, without delay, to search any house within the town that was particularly shown to them, unless they had been repulsed by force, or the doors by violence kept close against them.
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Farquhar having caused a messenger charge the Magistrates of Elgin to take my Lord Lovat, and the Bailies being together upon the street about eight or nine o'clock in the morning, the messenger, with several persons present, charged them to go into an house near by, which they designed to them, and to take Lovat, being then in bed; and the messenger offered to go with them and enter first; yet the Bailies did not obey, but said they would go at their conveniency, when they had convened their neighbours to assist. There is an execution and instrument upon the back of the caption to the effect foresaid produced, whereupon Farquhar pursues the Magistrates for payment of the debt contained in the caption. The defenders alleged, Absolvitor; 1mo, Because they were no further obliged but to convene the neighbours of the town, and send them with the messengers to assist, which they offered to do; 2do, Albeit themselves were obliged to take the rebel if he were shown to them within their jurisdiction, yet they were not obliged to search every house of the town for him, or to enter within close doors; 3tio, The Lord Lovat being known to be a fierce young man, who ordinarily had a minzie attending him, they were not obliged to adventure upon him, without calling the assistance of their neighbours, which they did within an hour or two thereafter, and he was gone.
The Lords repelled all these defences, in respect of the execution and instrument produced, and found the Magistrates, being charged, obliged to take the rebel, and without delay, to search any house within the town that was particularly shown to them, unless they had been repulsed by force, or the doors by violence keeped close against them by the master of the house, and ordained the pursuers to adduce the witnesses in the instrument and others to prove the particulars foresaid to have been so done as is therein expressed.
Fol. Dic. v. 2. p. 168. Stair, v. 1. p. 628.*** Gosford reports this case:
In a subsidiary action pursued against the Magistrates for payment of a debt due to Farquhar by the Lord Lovat, in respect they being charged by virtue of letters of caption to apprehend, for which an instrument was produced, bearing, that the messenger did intimate to the Bailies, that the Lord Lovat was lying in bed in a house of the town, and that the messenger offered to go with them, and enter the room before them, and that the Magistrates refused, upon reason that he was not in conspectu, and that the rebel being a nobleman, and well attended, might make resistance, in which case, they were not obliged to obey the charge;—the Lords did find the Magistrates liable to the debt, as being obliged to go and search until they found resistance; but ordained, that their refusing should be proved by witnesses, and would not sustain the instrument of a notary to be a sufficient probation.
