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Scottish Court of Session Decisions >>
Cornelius Neilson v The Clerk of His Brewery [1678] Mor 8548 (18 January 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor2008548-002.html Cite as:
[1678] Mor 8548
Found that a baron-bailie has not the power of summary incarceration.
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Cornelius Neilson having incarcerated the Clerk of his brewery by a warrant from the Bailies of Leith, he gave in a bill of suspension, with a charge ‘to set at liberty,’ upon this reason, That he was unwarrantably incarcerated by the Bailie of Leith, who is but a baron bailie, not having the privilege of summary incarceration, which is only competent to Royal Burghs within their burgh, but not to the Bailies of their barony, which are not burgage. It was answered, That the Supplicant being a servant, liable for the count of a brewery and debtor for a great sum, and having no visible estate, but refusing compt, and being in meditatione fugæ, he ought to be detained in prison till he find caution, at least judicio sisti.
The Lords found, That the incarceration by the Baron bailie was unwarrantable; but the Lords Ordained the Supplicant to be continued in prison by their authority upon the foresaid reasons, till he found caution to be present at the diets of process or else to pay the debt; and ordained the account pursued for to be advocated before themselves from the Bailie of Leith.
