Power, - Duty, - Liability of Magistrates relative to Prisoners.
Charles Brodie v. The Magistrates of Elgin
Date: 13 July 1759 Case No. No 72.
A prisoner having escaped by means of false keys, the Magistrates were found not liable.
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Charles Brodie brought an action against the Magistrates of Elgin for payment of L. 149: 10s. and interest, on account of their having allowed Gilbert Barclay, his debtor, to escape from the prison of Elgin, where he had been confined for that debt.
It was proved, in defence, That Barclay had made his escape, not by the insufficiency of the prison, nor the connivance of the jailor, but by means of false keys, which he had procured to be made at a neighbouring town; and that he had an accomplice in making his escape, who, from without, opened the doors with these keys.
Answered, The prisoner could not have procured the impression of the keys from which the false keys were made, without the connivance, or at least the negligence, of the jailor, 2dly, It was proved, That, the night of the escape, as well as upon other occasions, the jailor had neglected to put on the catbands and padlock on the outward door; which ought to make the Magistrates liable, in terms of the act of sederunt 11th February 1671; by which it is declared, “That, in all time thereafter, the Court would find the Magistrates of boroughs liable for the debts of rebels who should escape from the prison, in case they have not sufficient catbands upon the doors of their prisons, and lock the same ilk night, lest the rebels pick or break up the locks.”
Replied, It is clear, by the proof, and particularly by the oath of the accomplice, that the jailor had no accession to the escape; and it was easy for the prisoner, during the course of a long confinement, by the assistance of an accomplice, to get the impression of the keys, without any culpable neglect of the jailor. 2dly, Though the catbands were not locked the night of the escape, yet, as the escape was not facilitated by this omission, it cannot be a good ground for subjecting the Magistrates. The escape was made by false keys, and the doors were opened by the accomplice from without; so that the catbands, though locked, could not have prevented it.
“The Lords found the defences relevant and proved; and therefore assoilzied the defenders.”
Act. Lockhart.Alt. Hamilton-Gordon.
Fol. Dic. v. 4. p. 137. Fac. Col. No 191. p. 341.
