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A magistrate being pursued for a debt, as having failed to imprison a debtor who was taken by caption, the defender was found liable, and the other Magistrates subsidiarie for the debt, annualrent, and expenses. Urged in a reclaiming petition, That a charge, given the community, ought to be suspended; because a registrated horning and denunciation was not a sufficient discussion of the Magistrate, who was primarily liable.——The Lords refused the petition.
Fol. Dic. v. 3. p. 183.*** Kilkerran reports the same case:
In the case mentioned January 29. 1747, voce Prisoner, the Lords having, by their final decree, upon the 12th July 1748, ‘Found John Jaffray, bailie of Forfar, liable for the debt due to Agnes Gall, in respect of his letting Provost Binning the debtor escape; and found the other Magistrates as representing the community liable subsidiarie.’ And on this decree the Magistrates being charged, they presented a bill of suspension, on this ground, That though Bailie Jaffray ought to be first discussed, not one step had been taken towards recovering payment from him, although he was possessed of the property of houses and acres in and about the town,
But it being answered, That these subjects were already incumbered by inhibitions and other diligence, the Ordinary ‘refused the bill;’ and, on advising a reclaiming petition, the Lords ‘adhered,’ in respect the petitioners, could not condescend on a free subject.
