Power, - Duty, - Liability of Magistrates relative to Prisoners.
James Haswel, Portioner of Hulstoun, v. The Magistrates of Jedburgh
Date: 25 June 1714 Case No. No 63.
The Lords found that an instrument under the hand of a notary is not sufficient to supply the want of an execution and charge against magistrates.
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In a subsidiary action at the instance of James Haswell, against the Magistrates of Jedburgh, for payment of a debt owing to him by Thomas Rutherford, late Bailie there, on pretence that, in the year 1688, the said Thomas Rutherford had been apprehended by virtue of a caption at the instance of the pursuer's cedent by John M'Ubbin messenger, and offered to the then Magistrates of Jedburgh as prisoner, they refused to receive him, and suffered him to escape;
Answered for the defenders; That there was no execution of the caption or charge against the Magistrates to apprehend the prisoner produced, without which, there could be no action against the defenders; they being liable only in two cases, either if they refuse to obey or comply with the will of the caption in apprehending the prisoner, or if, after the caption was put to execution, and the prisoner lawfully incarcerated, they suffered him to escape.
Replied for the pursuers; For instructing that the Magistrates were duly required, and deficient in their duty, he produced the caption, with a subscribed note on the back by a messenger, containing the fact of his apprehending the said Thomas Rutherford within the council-house, where the Magistrates were sitting (the ordinary prison for persons of the debtor's quality) delivery of a copy of the letters to the Provost; and referring to an instrument taken upon the facts, both by the messenger and party, together with the instrument itself, duly subscribed before witnesses, containing the facts; and offered to prove, if need were, the verity of the facts by the instrumentary witnesses; in which case an execution is not necessary; because the letters were answered by the person's being apprehended and in prison; and the not detaining him was the fault of the Magistrates, who ought to have kept him, or put him in the jailor their servant's hands; for this was equivalent as if he had been de facto imprisoned and suffered to escape; in which case, the imprisonment may be proved by recording in the book or otherwise, without necessity of any execution of the messenger, (12th February 1709, Elliot contra Magistrates of Selkirk, see Appendix.), who is functus by the incarceration.
Duplied for the defenders; An execution is as necessary to prove that the will of the letters was fulfilled, as it is to prove in the other case, that the Magistrates refused to fulfil the will thereof. So 4th December 1679, M'Kalla contra Magistrates of Ayr, voce Proof. The Lords refused to sustain any proof of the incarceration by witnesses; even where the jailor was offered to be led as witness, without an execution of the caption, bearing that the party was put in prison by virtue of the caption, or was arrested in prison, or at least was booked in the jailer's books for the debt pursued on, which is conform to reason and practice in the like cases. For executions in writ of summonses or other letters, are solemnities required as absolutely necessary by law; and, in no case is it allowed to prove the facts of a person's being charged, inhibited, or apprehended by caption by witnesses; seeing otherwise property should, after forty years, depend upon the memory of two witnesses adduced to depone upon particular solemnities and formalities which no man's memory is thought able to retain, where he has not given it under his hand at the time that he was witness to the performing thereof.
The Lords found that the instrument under the hand of a notary, is not sufficient to supply the want of an execution and charge against the Magistrates; and therefore assoilzied the defenders.
