Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Mrs Jane Maxwel v. The Town of Dumfries
Date: 30 november 1680
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Mrs Jane Maxwel, who had adjudged Mr William Maxwel his estate, and obtained a decreet of maills and duties against the tenants in absence, and thereon apprehended one of them, and incarcerated him in the tolbooth of Dumfries, pursues the town of Dumfries for payment of 5000 merks, due by the said tenant, whom they had suffered to escape.
The defences were, 1st, It was casu fortuito, for he had come out by false keys. 2. They can be decerned for no more than what the tenant was owing; and ita est his year's rent and maill was not 600 merks. Replied,—There was culpa in them, in so far as they had not a cat-band on the door, conform to the Act of Sederunt 1671, and a keeper at the door. To the 2d, She had a standing
decreet against the tenant for 5000 merks by year, as his maill and duty; and being imprisoned for that, till the decreet were reduced, the Town behoved to be liable for that sum.
Duplied,—The decreet was in absence, and though the tenant could not be now had to depone on the yearly quantity of his true rent, yet they were content to admit to her probation what duty he paid, and to be liable for that; and offered to prove the whole barony (whereof he was a tenant but in a small part,) did not pay so much by year as she had taken decreet against that one tenant for.
The Lords repelled both defences, and found the town liable for the whole sum decerned against the tenant; and refused to take a probation anent his true rent.—This, as very hard, the town reclaimed against by a bill; but if it was on the account that the decreet was standing unreduced, it seems the Town, for their own liberation pro tanto, had interest, without the tenant's concourse, to raise a reduction of that decreet, and prove what was his true yearly rent.
