Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
George Bayne, Merchant in Edinburgh, v. the Burgh of Culross
Date: 13 February 1671
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This is an action against the Magistrates, to pay the debt for setting the rebel incarcerated in their tolbuith at his instance at liberty. The Defence was that though incarceration seu squalor carceris be pæna, yet where the party was so very poor that he had no earthly thing, but from their prison went to an hospital, and there died, the bailies could never be made liable by setting such a miserable person at liberty.
This went to interlocutor; and the Lords assoilyied the Magistrates in regard of the rebel's poverty, and that he went to the hospital.
This seemed pessime judicatum to Mr. George Norvell and severals; for by our law there is nothing can put Magistrates in bona fide to set a rebel at freedom but only thir two, either a suspension and charge to set at liberty, or a consent under the party's hand by whom he was imprisoned. And the laird of Coldingknows, goodsire to this Earl of Home, being incarcerated within the tolbuith of Edinburgh for debt, upon a petition given in to the secret Council he obtained an order to the Magistrates to permit him to stay at such a person's house, in regard of his sickness and infirmity of body. This order the Magistrates, (having taken advice of their assessors,) did disobey, and next council day represented their reasons, whereupon the Council retracted their warrant.
