Power, - Duty, - Liability of Magistrates relative to Prisoners.
Sir Jamis Rochead of Inverleith's Relict, v. Messrs Cockburn and Brown
Date: 13 July 1694 Case No. No 58.
Found again in conformity to Cheap against Magistrates of Falkland, No. 46, p. 11715.
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The Relict of Sir James Rochead of Inverleith, in a subsidiary action contra John Cockburn, baron bailie of Dunse, and Brown his jailor, for paying a debt for suffering the debtor to escape. Alleged, Dunse being but a burgh of barony, they are not bound to receive prisoners, and though they do, there is no necessity on them to detain them; and cited decisions out of Durie, Bailies of Dunse contra Mudie's Creditors, No. 13, p. 11691, Langton contra the Bailies of Dunse, No. 15, p. 11693, and 20th July 1624, Bell contra eosdem, voce Reparation; 2do, The prisoner not being delivered to the Bailie, he cannot be liable; 3tio, The prison was insufficient, and so the creditor should not have chosen it. Answered, Whatever might have been said, had the prisoner been refused, yet all this has no weight, since they accepted of the debtor; and so nothing can exoner them but to present him when required; and these old decisions do not militate now, since the act of Parliament 1661, constituting Dunse the head burgh of the shire of Berwick for all executions, denunciations and legal diligences; and the 277th act 1597, anent prisoners, seems to require them wherever the judicatories sit. And by a late interlocutor in 1687, between Nasmyth of Posso and the said Town of Dunse, they were made liable for the escape of a rebel, and though it was not intimated to the constituent, yet he must be made liable for the negligence of the servants put in by him, and he should either keep the prison fencible, or else give orders to his jailor not to accept prisoners. The Lords found not only the jailor, but his constituent liable.
Fol. Dic. v. 2. p. 166. Fountainhall, v. 1. p. 631.
