Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Stewart v. Gordon
Date: 7 February 1694
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Arbruchel reported the case of Stewart against Gordon, for repaying fourteen dollars he had given him in 1683, (when prisoner in the Canongate tolbooth for conventicles, and banished to Jamaica,) to help him to escape, Gordon being then one of the jailer's servants; and that, though he was once down the tolbooth stairs, yet, by his contrivance, he was retaken, and sent to America, and now returned. The libel being referred to Gordon's oath, he deponed that he got the money, but gave it to Birrel, the turnkey, and disposed of none of it; that the pursuer was indeed seized on ere he had made his full escape, but not by his means or discovery, any manner of way. The bailies had found him liable on this oath; which decreet he suspended.
Some of the Lords were for finding the letters orderly proceeded, not so much on his oath, that it was an extrinsic quality that he gave away the money, and that it came not to his use, as that it was an unlawful action to take a bribe to let a prisoner escape. But the plurality found, where there was turpitude ex parte utriusque, potior est conditio possidentis; that the libel being only proven by his oath, you cannot divide the same, but take it complexly as it stands: and, therefore, they assoilyied Gordon. Some were for examining Birrel, to see what he did with the money; but it was represented that he was dead.
