Charles Oliphant, as assignee constituted by David M'Brair, charges Dornoch to pay the sum of 1800 merks. Compearance is made for an arrester, as having arrested before the assignation, at least before intimation. The assignee answered, No preference upon this arrestment, because it was executed upon the Sabbath day, and so is not lawful; for by the law of all nations, judicial acts done by authority of Judges, upon legal process, diebus feriatis, are null; and there is an act of sederunt to that same effect. The arrester answered, That there was no law prohibiting such executions, or declaring them null; and though it was a fault and breach of the Sabbath to do so, that annuls not the act; fieri non debet, sed factum valet.
The Lords were all clear that such executions should be prohibited in time coming, but quoad præterita, some were non liquet, yet the major part found the execution null; for they thought, that albeit acts of private parties on the Sabbath day might stand legally valid, as if extracts were subscribed that day, or a consignation made, (which had been found valid by a former decision) yet judicial acts, auctoritate judicis, are null, else messengers would ordinarily wait parties upon the Sabbath day, for all execution by horning and caption, &c.
