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James Bell finding one James Patts an Englishman, in Jedburgh, arrests him there upon a bargain betwixt them for some cattle, whereupon James Robertson became cautioner judicio sisti et judicatam solvi; and thereafter James Bell obtains a decreet against him before the Sheriff of Roxburgh: He suspends on this reason, that the Englishman was unwarrantably arrested by the Magistrates of Jedburgh, contrary to the act of Parliament 1672, Declaring the privilege of burghs to arrest to be only for merchandise, meat, drink, &c. and not for bargains of this nature, not being made with a burgess, or for any goods within burgh. It was answered, That the act of Parliament doth only limit the peculiar privilege of burgh, and bears, That they shall not arrest any subject of this kingdom, which cannot extend Englishmen residing in England: But the charger founds upon the local custom of the Border, by which he offers to prove, that, past memory, it is the custom on both sides of the Border, that the inhabitants of either side, being found on the other side, upon application to any Magistrate, they are arrested and incarcerated, till they find caution to answer and pay, which is a reasonable and necessary custom, without which there could be no traffic on the Borders; but parties of either nation behoved to go to another kingdom to pursue for their rights. And seeing it is notourly known, that the English on their side kept that course with Scotsmen in England, there is good reason the same course should be taken with Englishmen in Scotland; so that the arrestment by the Magistrates of Jedburgh is not by the privilege of burgh, but by the local custom, and so was done by them as Magistrates, and might have been done by any Magistrate, as to which the act of Parliament doth make no alteration. Likeas there was a testificate produced by a number of Noblemen and Gentlemen on the Border, declaring that this was the custom.
The Lords found the answer, upon the custom of the Border, relevant, and that it was not altered by the act of Parliament, and the arrestment by the Magistrates of Jedburgh was by their common authority as Magistrates, and not by their special privilege of burgh; but would not sustain the testificate for probation of the custom, but ordained it to be proved by witnesses upon oath.
Fol. Dic. v. 2. p. 261. Stair, v. 2. p. 397.
*** Gosford's report of this case is No 41. p. 4827. voce Forum Competens. See No 534. infra.
