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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bethia M'Kenzie v Sir Hugh Campbell of Calder. [1679] 2 Brn 253 (12 December 1679)
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.
Date: Bethia M'Kenzie
v.
Sir Hugh Campbell of Calder
12 December 1679 Click here to view a pdf copy of this documet : PDF Copy
Bethia M'Kenzie, having raised a caption against Chisholm of Comber, did therewith charge Sir Hugh Campbell of Calder, Sheriff of the shire, to apprehend the rebel, being in the Sheriff's own house; as the executions of the caption bear: and yet the Sheriff did not put the letters to execution, but suffered the rebel to escape; and therefore is liable for the debt.
The defender alleged, 1mo. That the messenger's execution could only instruct that he had given a charge to the Sheriff; but that the rebel was with the Sheriff in his own house, cannot be proven by the execution, which is but extrinsic, and at least must be verified by the oaths of the witnesses in the executions. 2do. It is offered to be proven, that the rebel had fifteen or sixteen men in arms in and about the Sheriff's house, so that he was not in a capacity to make him prisoner; but, if need be, it is offered to be proven, by the messenger's oath, that he took back his charge upon that consideration, and promised to give no execution.
The pursuer answered, That it is a proper part of the messenger's office to give executions, not only bearing the charge, but also the circumstances of the place, and condition of the Sheriff and the rebel; which, therefore, is probative and valid unless it be improven; and the messenger being functus officio, his oath is not competent in prejudice thereof. Nor could any such promise be effectual against the party at whose instance the caption was truly executed; and the messenger might have been compelled to give the executions, notwithstanding of any promise to the contrary. Neither is the defence relevant, that the Sheriff had not sufficiency of force; but he ought to have attacked the rebel; and nothing could exoner him but an actual force, vi majori.
The Lords repelled the defences, and decerned against the Sheriff.
Vol. II, Page 723.
The electronic version of the text was provided by the Scottish Council of Law Reporting