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Scottish Court of Session Decisions >>
M'Calla v The Magistrates of Ayr. [1679] Mor 12632 (4 December 1679)
URL: http://www.bailii.org/scot/cases/ScotCS/1679/Mor2912632-530.html Cite as:
[1679] Mor 12632
Execution of a caption by incarceration found not proved by witnesses, but by the messenger's execution or the jailor's book.
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George M'Calla pursues the Magistrates of Ayr for payment of two debts due by Major Fullerton, and for which he was incarcerated in the tolbooth of Ayr, and was unwarrantably let go, upon pretence of a consent given by Mr George White, by warrant from M'Calla, which was only conditional, if Captain Kennedy, at whose instance Fullerton was incarcerated, did also consent; and which being referred to Mr George White's oath, whether he consented by M'Calla's warrant to liberate Fullerton, he offered to depone qualificate, that he consented only on condition that Kennedy should consent, which oath the Magistrates refused to take, upon pretence that they could not take a qualified oath; and yet they reported to the Lords, that White was contumacious, and would not depone without expressing the truth of his offer to depone qualificate; whereupon M'Calla was decerned to pay Kennedy the sum wherein he stood in trust for Kennedy, reserving to M'Calla to pursue the Magistrates of Ayr as accords. The defenders alleged no process, till the caption's and executions thereof were produced, whereby Fullerton was incarcerated. It was answered, That the caption is produced, and there needed no execution, seeing the Magistrates of Ayr received the prisoner, and, therefore, needed not to be charged to receive him. But it was offered to be proved by the jailor, and other witnesses above exception, that Fullerton was incarcerated upon the two debts in question, and also by the decreet against M'Calla at the instance of Kennedy. It was replied, That the decreet against M'Calla was inter alios actum, and witnesses could not be received to prove any executions, but only the execution itself, for which there is a special act of Parliament 1579, cap. 94.
The Lords refused to sustain the incarceration upon the bonds in question by witnesses, but either by the executions of the caption, bearing, That the party in prison was put in prison by virtue of the caption, or was arrested in prison, or at least that he was booked in the jailor's book in the tolbooth for the said bonds.
