Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Dundas and Others
v.
The Magistrates of Edinburgh

Date: 16 November 1672

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The Magistrates of Edinburgh, being pursued for payment of a debt due to Dundas, and some others of the creditors of Whythead of Park, upon that ground,—That Park, being imprisoned in the tolbooth of the Canongate, for civil debt, and arrested at the pursuer's instance; notwithstanding, he was suffered to escape, by the negligence of the jailer or insufficiency of the prison:—

It was alleged, That the way of the escape being by a false key to the bell-house door, and carrying of a rope to the top of the bell-house, whereby the prisoner did come out at a window, the jailer nor magistrates could not be liable for the debt; because it was casus improvisus, and such as no prudent person could foresee, there never having escaped that way any prisoner in former times.

It was replied, That it being confessed there were ropes carried into the tolbooth, by which the prisoner escaped, and that the window of the bell-house was open, out of which it was easy for any person to go down to the roofs of houses built underneath, against which the magistrates had provided since, by putting in of iron stauncheons in the windows: As likewise, that a woman being prisoner for a crime, did make her escape that way, albeit she was bruised in the attempt, because she did it without the help of any ropes; which occasion should have made the magistrates guard against all such attempts.

The Lords did ordain some of their number to visit the way of the escape.— Upon their report, did assoilyie the jailer, as not being intrusted with the key of the bell-house. As likewise, the magistrates, in respect there was never any attempt but that one wherein the prisoner suffered so much: Which, as to the magistrates, was hard, they being forewarned, and not having secured from any further attempt, as they have now done.

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