Power, - Duty, - Liability of Magistrates relative to Prisoners.
Sir James Cockburn v. Nasmith of Posso
1685.
March Case No. No 55.
Found in conformity with Cheap against the Magistrates of Falkland, No 46. p. 11715. that the Magistrates of a burgh of barony become liable for diligence to detain a prisoner, although they might not have originally been obliged to receive him.
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Sir James Cockburn being pursued in a subsidiary action, for the escape of a prisoner for debt out of the tolbooth of Dunse, it was alleged for the defender, That Dunse was but a burgh of barony, which, by the act of Parliament, is not obliged to have prisons; and the Lords found, by several decisions marked (Supra), That no person was liable for the escape of prisoners out of the tolbooth of Dunse; and these were received periculo creditoris; and it cannot be alleged, in this case, but there was ordinary care and diligence used for keeping of the prisoner. 2do, The tolbooth is as sufficient now as it has been for many years, and the prisoner made his escape by breaking the roof vi majore, which would assoilzie even magistrates of royal burghs.
Answered: By an act of Parliament 1661, Dunse is made one of the head burghs of the shire, at which legal diligence is to be done, and is the place where the Sheriff-court holds; and therefore they ought to have a sufficient prison, the Sheriffs having many times occasion to commit persons to prison, both for debts and capital crimes. 2do, The prisoner having been received into the tolbooth, the town becomes liable for all hazards, as in the prisons of royal burghs.
Replied: The burden of having prisons is, by reason of the privilege and advantage of trade, which is only competent to royal burghs; and the Sheriff sits at Dunse only for his own conveniency, for he may sit at Lauder, the head burgh of the shire, when he pleases. 2do, Sir James not having given warrant to the bailie to receive him, cannot be liable for the bailie's act.
The Lords found the bailie liable for the escape of the prisoner, but not the Baron, unless he had given warrant to receive him, and sustained the defence to liberate the bailie, that the prisoner escaped vi majore; as also sustained this reply to take it off, viz. That the prisoner was suffered to walk abroad before his escape, relevant per se, as contrary to the act of sederunt, to infer this subsidiary action against the bailie.
This decision seems not very consistent with itself.
Fol. Dic. v. 2. p. 166. Harcarse, (Caption.) No 231. p. 55.
