Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Allan v. John Aird
Date: 14 January 1696
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Mersington reported Robert Allan, merchant, against John Aird, bailie of Glasgow, for not obeying the will of the caption by imprisoning Thomas Weir; and so, by a subsidiary action, concluding payment of the debt against him. Alleged, 1mo. The rebel was not presented to me, and magistrates are not bound to search for them up and down their burgh. 2do. By the Act of Sederunt, 14th July 1671, magistrates are permitted, upon testificates of the prisoner's sickness, and probability of the hazard of death, to set them at liberty till they recover; and this is no more but debitum humanitatis et misericordia; ergo, a pari, a bailie may refuse to imprison a man whom he knows, by attestation of physicians, upon soul and conscience, to be dangerously sick; and, de facto, Weir died shortly after. 3tio. By paction between the bailie and messenger, his incarceration was forborne for some weeks, to see whether he should recover or not.
Answered to the first, He opponed the messenger's execution, bearing that he had apprehended the rebel; and so it must be presumed that he presented him to the bailie, unless they would take it off, by offering positively to prove that he was not then in the messenger's custody, but lying sick at home. As to the second, The act of sederunt does not meet this case, relating only to debtors already incarcerated; and it were very dangerous to make magistrates judges whether the rebel's sickness be such as he ought not to be incarcerated; for though cruelty is not to be authorised, yet this would open a door to disobey all captions, under pretence that the party feigns himself to be indisposed; and the testificates here are long subsequent to the instrument offering the prisoner. To the third, Employers are not to stand to pactions and agreements made by messengers, (only the question is, who shall be liable,—the messenger, malverser, or the magistrate, or both?) without their knowledge, consent, or allowance; else few rebels but will capitulate withthem by the help of a little money.
The Lords, before answer, ordained probation to be led whether the rebel was in the messenger's hands at the time of requiring the bailie; and if he was actually presented to him; and what was his condition of health or sickness at that time.
