Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1687.
John Donaldson v. John Carnegie
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1687. February 9.—The case of Donaldson against Carnegie, Provost of Forfar, was reported by Boyne. This was a subsidiary action for paying a debt, for suffering Lyon of Cossins to escape out of prison. Alleged,—That, by a probation led in a process against the messenger before the Lord Lyon, it appears to be proven, that he had taken money to let the rebel escape; and so the Provost ought to be assoilyied. Answered,—He opponed the messenger's execution, by which there was jus quæsitum to him, which could not be taken from him.
The Lords ordained the pursuer to fortify and adminiculate his execution by the oaths of the messenger and witnesses, but prejudice to the defender to insist against the messenger for the debt on his malversation, as accords. Vide 11th June 1687.
Vol. I. Page 446.
1687. June 11.—John Carnegie, Provost of Forfar, being pursued by John Donaldson in a subsidiary action for paying the debt, as mentioned 9th Feb. 1687; the Provost gave in a bill, craving a joint probation as to the manner of the rebel's escape, seeing he offered to prove that the messenger, by bribery and collusion, had suffered him to escape. The Lords granted a mutual probation. And thereafter Donaldson bringing in the witnesses to the execution of caption, to depone that the prisoner was wanded, and offered to the Provost to be incarcerated, and accepted by him; Provost Carnegy gave in a new bil bearing, that, if his probation were taken, it would appear that thir witness were the contrivers of his escape, and took money, and so were art and part; and therefore craved a commission to my Lord Carse to examine both parties' witnesses at Forfar, (which is near his own house,) in the next vacance, and to consider and try the objection against the liability of thir witnesses, in case it appeared that they were suborned. Which desire the Lords, on the 17th June granted. Vide 14th July 1688.
Vol. I. Page 456.
1688. July 14.—Donaldson's action against John Carnegy, Provost of Forfar, mentioned 11th June 1687, is advised. The Lords find the Magistrates For far liable, and decern, in regard of the messenger's execution, which the sustained, especially being adminiculated by the instrumentary witnesses: and also find them liable for the annualrent, notwithstanding of the decision 29th June 1626, Haliburton; because there the annualrent was only due ex lege et via actionis; but assoilyie the Town from the penalty of the bond.
And, on a bill given in by Provost Carnegy against Stewart the messenger, craving they would find him liable to relieve them, because he suffered the rebel, by his connivance and corruption, to escape; the Lords declared the would review the probation, how far it touched the messenger. But he gave in a condescendence of the prevarications of the witnesses who had deponed against him, to alleviate and nullify their testimonies. And at most this would only infer William Carnegy's debt against him, but not Donaldson's.
