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Scottish Court of Session Decisions >>
Haliburton v Stewart. [1709] Mor 2 (21 July 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor0100002-003.html Cite as:
[1709] Mor 2
A proof allowed whether a debtor had been fraudulently detained out of the Abbey after 12 o'clock on Sunday night, when a caption was executed against him.
Effect of an act of imiemnity.
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Patrick Haliburton having contracted debts near to L. 3000 Sterling, and having secretly conveyed away his effects, he retired to the Abbey; but Sunday being a day whereon they are secure against all captions or other diligences, he came up to the house of Mr Stewart, one of his creditors, and having supped with him, and thereafter staid till it was past 12 o'clock at night, he is seized upon by a messenger, by virtue of a caption, and put in prison: whereupon he gives in a complaint to the Lords, that having come to Edinburgh, on a Sunday, to treat with Mr Stewart anent his satisfaction and security, and his own liberation, he did trepan and ensnare him by pretending much kindness, and inviting him to supper, and then protracting the time, in overtures and terms of accommodation, till the town clock struck 12 at night; and then he had a messenger prepared to take him to prison, by a most illegal and treacherous practice; all the preparatory steps being done on the Lord's day; which is all one as if he had executed his caption on the Sunday, contrary to our law and decisions, and the prohibition of the Roman Emperors, l. II. C, de feriis, to secure that holy day from profanation, 2do, The Queen, by her indemnity, has pardoned all offences, contempts, forfeitures, and outlawries, preceding the 19th of April last, which is the date of her indemnity, which will extend to denunciations and captions, prior to that date; and it a est this caption was raised long before, and escheat being a casuality falling to the Queen, by the debtor's contumacy and delinquency, she may either gift it or discharge it, as she pleases; and having done it, he could not be warrantably incarcerate by any denunciation or contempt, prior to the laid act.——Answered, He flaying till the Monday morning, there was neither law nor reason to flop their legal diligence; and, for the Queen's pardon, it only indemnifies criminal contempts and outlawries: and if it were stretched to civil rebellion for debts, it would introduce a strange confusion, and be like the Roman novæ tabulæ, or the Jewish year of jubilee, which discharged all former debts; and let indemnities for a hundred years back be consulted, it was never pretended that any of them discharged captions or legal diligences, to compel debtors to satisfy their just and lawful debts.——The Lords allowed trial to be taken of the time of his being apprehended, and the manner how he was detained, or if he offered to go back to the Abbey, and was enticed to stay, and hindered to go out; but repelled the second reason founded on the Queen's indemnity, and found it did not extend to take off the effects of captions for civil debt, prior to the date thereof.—For executing captions on the Sunday, see Durie 4th July 1628, Rachlet contra Lauder. (See Legal Diligence.);
Fol. Dic. v. 2. p. 361. Fountainhall, vol. 2. p. 518.
