Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Auchterlony
v.
The Magistrates of Aberdene

Date: 15 February 1676

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The Laird of Morphie having been incarcerated in the tolbooth of Aberdene, upon a debt due to the town, he produces a protection under the king's hand, upon payment of the annualrents, unto the messenger, and offered to pay the annualrents; yet the messenger put him in prison; wherein, he was arrested at the instance of Auchterlony; but thereafter, the magistrates having gotten a security for their relief, let him go. Auchterlony pursues the magistrates for bis debt, as suffering the rebel to escape; who alleged Absolvitor; because, he having protection under the king's hand, and offering the annualrent to the messenger, he unwarrantably incarcerated him; and therefore, they might warrantably let him go, notwithstanding of the subsequent arrestments; seeing they were accessory to the first error, and could not have been laid on, if that had not preceded.

It was answered, That the pursuer, having a caption, might have incarcerated him, being out of the tolbooth, or arrest him, being in it, without considering how he came there: and though he had had reason to have been liberated, by charges to set at liberty, as he had not, yet the magistrates were no judges, much less was the messenger judge, to the protection and offer of the annualrent; nor did he any wrong in refusing the same.

The Lords repelled the defence.

Vol. II, Page 415.