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The Macers v Thomas Kennedy and John Johnston. [1705] 4 Brn 604 (3 February 1705)
URL: http://www.bailii.org/scot/cases/ScotCS/1705/Brn040604-0100.html Cite as:
[1705] 4 Brn 604
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Macers v. Thomas Kennedy and John Johnston
Date: 3 February 1705
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One of the Session maces, belonging to Andrew Graham, last admitted in John Deuchar's place, being stolen, there was first an information given in against Richard Rae, goldsmith, that he had been seen to have the letters W and R, which used to be on the maces, signifying William Rex; and he, being called, was, on some presumptions, ordered to prison till farther trial; but he offering-bail, it was accepted, conform to the late Act of personal liberty in 1701; and he standing on his denial of his knowledge and accession thereto, the Lords appointed the Queen's advocate to insist against him, and called the deacon and several others of that trade, and advertised them to be more cautious when broken silver work was brought to them to be sold, to detain it when they did not know the bringer and had a suspicion of its being stolen, whether the party -who had lost it had caused book it in their records or not.
Then the macers gave in a bill against Thomas Kennedy and John Johnston, the two keepers of the Session-house, to make them liable, for suffering the mace to be stolen, whereof they had the custody and trust.
Answered,—That they acknowledged they had the charge of the Lords' and advocates' gowns, and had a salary for it, but never looked upon themselves as concerned to answer for the maces, whereof they had no trust; the macers leaving them lying on the bench, or on chairs and trunks, and ofttimes lending them to the Privy-council macers, when they had not brought their own. And they had no salary nor allowance from the macers, who had their own servants to look after them; and, esto they were depositarii, it being merely gratuitous, they ought only to be liable pro dolo et lata culpa.
The affair was compounded and taken up, and so came not to a decision; though it were very fit it should be known whether the macers should be answerable, and losers in such a case, or the keepers of the house. Since the institution of the College of Justice, which is upwards of 160 years, the like theft had never been attempted before.
