Scottish Court of Session Decisions

Subject_1 PRISONER.
Subject_2 SECT. I.

Power, - Duty, - Liability of Magistrates relative to Prisoners.

Brown
v.
Town of Inverness

Date: 11 November 1634
Case No. No 31.

Magistrates found liable for the debt of a person who opened the prison doors by means of quicksilver, because they did not search for him.

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Alexander Brown pursues the Provost and Bailies of Inverness for payment of a debt of L. 90 owing to him by his debtor, because his debtor being incarcerated by them in their ward, they suffered him to escape. And it being alleged, That the debtor, by applying quicksilver to the lock of the prison door, under silence of night, thereby made the door open, and escaped out of the ward, albeit the prison was sufficient, and the lock and door sufficient, if the rebel had not adhibited these unlawful means whereby he escaped, which being in effect vis major, the Magistrates ought not therefore to be punished, who are not alliged, nor cannot keep a guard about the tolbooth to attend such accidents; this allegeance was repelled, in respect the Magistrates did no diligence to search and make enquiry for the rebel, whereby it might appear that they were and are excusable from the said escaping, seeing they ought to have sought and followed and asked for him, wherever he might have been apprehended again. And sicklike, it being alleged for one of the Bailies convened, That he ought to be assoilzied, because another of the Bailies of the town being in office for the time libelled, when the rebel escaped, whose name he condescended upon, received payment of the debt for which the rebel was incarcerated from the rebel, and thereafter put him to liberty; which Bailie at that time, and by the space of two years thereafter, was responsible to have paid that debt to the creditor, and after that space, the said Bailie becoming irresponsible, et lapsus bonis, and the creditor all that time when he was answerable doing nothing to recover payment, nor pursuing the Magistrate, who would have got relief off the Bailie who demitted the debtor, if the pursuer had moved his action in due time, therefore, after so long time, this other Bailie, who committed no fault, ought not to be punished for the wrong done by another, especially where the cause flows most from the creditor's own negligence and cessation, especially also seeing the Bailie who faulted was in equal authority and power with the excipient, and he could not stay him to put the debtor to liberty, albeit he had known it before he demitted him, as indeed he knew it not; for if he had known it, they might have provided for the indemnity of the town, and for the parties' satisfaction. It was answered for the pursuer, That every one of the Bailies are obliged to him in solidum. and one of their faults burdens all and every one of them, and the rest may either have their relief against the delinquent, or against the Town and whole body thereof. The Lords repelled this allegeance, and found the Bailie for whom the exception was proponed liable to the debt, notwithstanding that the other Bailie put him out of ward, and albeit that Bailie was so long responsible, and now is lapsus bonis; for Magistrates who are chosen to serve the King and his lieges have this incumbent to them, that parties suffer not by any of their oversights, and any of them failing in duty, is alike as if all had failed; neither was the creditor's negligence imputed to him, to liberate them, because there is no law tying the party in these cases within two years after the fact to pursue the Magistrates: And the Lords reserved action to the Bailies, compearing for their relief, against the Bailie who failed, and also against the town, if he be found irresponsible, for refunding again of this debt, quia propter nexum culpæ omnes tenentur in these cases, albeit otherwise, regulariter, delicta sequuntur suos auctores; but here, in a case of such circumstances, it deserves consideration, that the debt may be fe vided amongst the Bailies, and not one to pay all, and to suffer in solidum propter alterius culpam; as also, it might be considered, (as is also consonant in law) that he who failed ought first to have been discussed, as in tutors, qui gessit, primo est conveniendus, qui si non sufficiat, tum demum collega teneatur; but this here needed not, seeing the Bailie proponer of the allegeance confessed the other, qui deliquit, to be irresponsible; and also it might have been considered, that the Bailie being so long responsible tempore offici, et post depositum officium, and the creditor doing no diligence, that hoc casu his negligence, (whereby the other Magistrates and the town are frustrated of their relief against the Bailie who failed, and which they would have sought if the creditor had pursued, or intimated to them debito tempore) that therethrough the creditor should take himself to his direct party, viz. the Bailie who received his prisoner's money, with whom possibly the creditor might have transacted, or received satisfaction, or otherwise may collude with him, to the prejudice of the other Bailies, and not to have this action sustained against them, who are free of all fault; for it is of hard consequence to insnare Magistrates, after so long time, for another's fault, never made known to them, and which, if the party had signified then, when both he and they might have been safe from the prejudice, they might better have discovered how matters were carried betwixt the Bailie and the party: But it was decided ut supra. See Solidum et Pro Rata.

Act. M'Gill. Alt. Gibson. Clerk, Hay. Fol. Dic. v. 2. p. 170. Durie, p. 736. *** Auchinleck reports this case:

A. B pursues James Cuthbert, Bailie of Inverness, for having committed B. P. to P. ward, at the pursuer's instance, by letters of caption, for the sum of L. 95, and suffered him to escape; and therefore convenes the said James for the debt. It was alleged for the defender, That he cannot be pursued for the debt, because he committed the debtor to ward, conform to the caption, there to remain upon his own expenses; and he offers him to prove, that the debtor remained in ward till he had no means to sustain himself; 2do, He offered him to prove, that the debtor blew up the lock of the tolbooth door with quicksilver; 3tio, He ought to be assoilzied, because he offers him to prove, that Bishop, who was conjunct Bailie with him the time, was the outputter of the rebel, for whose deed be ought not to be answerable, especially seeing the said Bailie was of equal power with him, and is now become bankrupt. To which it was replied, That although the rebel was poor, yet the Bailie had no power by his magistracy to put him to liberty, but should have caused the rebel to mean himself to the Lords; To the second, It was not relevant, seeing the defender used no diligence for apprehending the rebel again after he had escaped; To the third, It was lawful for him to pursue the Bailies, or any one of them that was most responsible, because they are conjunctim in officio, and if his colleague be irresponsible, the other Bailie pursued may seek his relief off the Town, for choosing an irresponsible Bailie. The Lords repelled the whole allegeances, in respect of the reply.

Auchinleck, MS. p. 24.