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Scottish Court of Session Decisions >>
Rae v Bailies of Dalkeith. [1628] Mor 11696 (18 November 1628)
URL: http://www.bailii.org/scot/cases/ScotCS/1628/Mor2811696-022.html
Power, - Duty, - Liability of Magistrates relative to Prisoners.
Rae v. Bailies of Dalkeith
Date: 18 November 1628 Case No. No 22.
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A Messenger charges J. D. and A. W., Bailies of Dalkeith, to apprehend the Laird of Mains, on Sunday, at the instance of James Rae, and the messenger delivered but one copy to one of the Bailies instead of both. J. D. suspends the charge, because he got not a copy; 2do, By an act of Council messengers are discharged to execute any letters of caption on Sunday. The Lords repelled the first reason, but found the second relevant.
1628. November 19.—The like was decided; but it being replied that the pursuer offers to prove, that the rebel was in company of the said Bailies one or other of them, since the said charge, within the bounds of the regality. The Lords found the reply relevant to be proved by the oath of the defenders.
Auchinleck, MS. p. 22.
*** Durie's report of this case is No 94. p. 3754., voce Execution.
*** Spottiswood reports this case:
There was a charge given at James Rae's instance to the Bailies of Dalkeith, Archibald Weddel and James Douglas, for apprehending of the young Laird of Mains; the execution bore, that the officer gave the charge to them being both together in Dalkeith, and the rebel with them, and that he delivered a copy to Archibald one of the Bailies, in name and behalf of both. They being pursued for disobeying the charge, James alleged, That he ought to be assoilzied, because the execution bore not that there was a copy delivered to him. However, in respect he was present and saw it delivered to his fellow, the Lords sustained the charge. Next alleged, the charge was null, because it was delivered on a Sunday, as they were going to the kirk at the ringing of the last bell. The Lords found that the charge was not null, but yet that the Bailies were not obliged to obey, being given at such a time. And this has been found before betwixt Rachelet Frenchman and Sir Lewis Lauder, voce Sunday. To meet this last allegeance, it was replied, That the pursuer offered to prove that the rebel was in their company since, at which time they should have apprehended him by virtue of the former charge. Which reply was found relevant to be proven by the oath of the defenders.
