Scottish Court of Session Decisions

Subject_1 PRISONER.
Subject_2 SECT. I.

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

Cheap
v.
Magistrates of Falkland

Date: 18 June 1670
Case No. No 46.

The Magistrates of a head burgh of a stewartry received a prisoner who afterwards escaped. Found it was then incompetent to allege, that they were not bound to receive him.

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Mr James Cheap pursues the Bailies of Falkland to pay their debt due to him by Provost Mains, who being taken by caption, and delivered to the Bailies by the messengers, they keeped him in a private house for the space of ten days, for which they are as well liable for the debt, as if they had brought him out of the tolbooth, and keeped him in the town during so much time; and also they were liable in so far as having put him thereafter in the tolbooth, they suffered him to escape forth thereof. It was alleged for the defenders, They were not obliged to keep prisoners, not being a burgh royal, but only a burgh within a stewartry, which no law obliges to receive prisoners, and the caption is only direct to Sheriffs, Bailies of regality, or royalty, Stewards, and Magistrates of burghs royal, but not to burghs within stewartries, or within regalities, albeit they were the head burghs of the stewartry or regality, not being burghs royal. 2do, The defenders cannot be liable for keeping the prisoner some days out of the tolbooth, seeing he did not then escape; and albeit it be a fault for which they may be censured, to keep a prisoner in a private house, yet the doing thereof, if the rebel escape not, makes them not liable to the debt, but especially where the rebel was never in the tolbooth, and when there was treaty betwixt him and the pursuer and his servant, for an agreement and satisfaction and security for the sum. 3dly, They offered to prove, that the tolbooth was sufficient, and that the prisoner escaped vi majore, by breaking the roof of the prison without their fault. The pursuer answered to the first, That he opponed the act of Parliament, ordaining sufficient prison-houses in all burghs, Parl. 1597, cap. 277. 2do, Whatever this burgh might have pretended for refusing to accept the prisoner, yet having accepted him, and suffered him to escape, they are liable as having acknowledged themselves to be liable; and if they had refused the prisoner, the pursuer would have him in another uncontroverted burgh. To the second defence, it was answered, That Magistrates are liable for the debt of rebels offered to them, if they do not put them in prison, or if they suffer them to come out of prison without warrant, and the pursuer needs not dispute that the prisoner went out by the Magistrates' fault, and their contumacy is sufficient in not obeying the letters, by putting him in their public prison, but keeping him so long in a private house. To the third defence the pursuer offered him to prove, that the prison was insufficient, and that thereby the rebel did escape.

The Lords found, That seeing the defenders did receive the rebel upon the caption, they could not now dispute, whether they were liable to receive or not, as being the head burgh of the stewartry, and therefore the Lords did not determine that point. Likewise, the Lords found, That the keeping of the rebel ten days before he was imprisoned, there being treaty in the time, and they not urged to put him in the prison, did not oblige them. As to the last point concerning the sufficiency, or insufficiency of the prison, the allegeances being contrary, the Lords would prefer neither party in the probation; but, before answer, ordained either party to adduce witnesses concerning the condition of the prison, and manner of the rebel's escape.

Fol. Dic. v. 2. p. 166. Stair, v. 1. p. 682. *** Gosford reports this case:

In a subsidiary action pursued at the instance of Mr James Cheap, against the Bailies, for suffering the prisoner to escape, and for keeping him in a private house ten days before he was put in prison, it was alleged, 1mo, That Falkland not being a royal burgh, but only the burgh of a stewartry, they were not liable to receive prisoners for civil debts, nor the bailies obliged by the act of Parliament to have sufficient prisons for that effect. This defence was repelled, in respect the bailies had once received the rebel, which the Lords found sufficient to make them liable for the debts, unless they had intimated to the creditor, that they could not be answerable for him, and put him in his hands. But the Lords did consider the act of Parliament, if the debate had run, if the bailies of a stewartry had refused to receive he prisoner, or had not taken him in their custody, if they did fall within the act of Parliament 277, Parliament 15, King James VI, which, albeit it be unclear, as it is conceived, making mention only of stewarts and bailies of reganties, and not of the bailie of the burgh, as of provost bailies and council of royal burghs; yet most part were of that opinion, that bailies of the head of burghs of stewarties and regalities are liable, and fall within the act of Parliament; but no interlocutor passed thereupon. 2do, It was alleged, That the defenders were not liable super hoc media only that they had keeped the rebel eight or ten days in their custody in a private house, before they had put him in prison, since thereafter they did imprison him, and he escaped vi majore. The Lords would not sustain the libel super hoc media only that he was kept for some days in a private house, since the rebel made no escape during that time, but after he was in prison; and therefore ordained witnesses to be led binc inde for proving the suffiency or unsufficiency of the prison house.

Gosford, MS. No 271. p. 115.