Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Mr James Murray
v.
Robert French of Frenchland

Date: 13 December 1672

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Robert French, being pursued for payment of the whole debt contained in a bond granted to Murray, as having deforced the messenger in the execution of his caption against the debtor;—it was alleged,—by the Acts of Parliament 1587 and 1592, it was statuted, That deforcers of messengers shall escheat their whole moveables, the one half to the King and the other to the party wronged; so that this being a penal action, and the punishment expressly determined by law, there is no power left to the Judges to extend the same. 2do. The Acts of Parliament allowing that deforcers may be either civilly or criminally pursued, una electa non recurritur ad aliam; but so it is that the defender was pursued criminally before the justice for the same fault.

It was replied, to the first, That the Acts of Parliament do only add a further pain than what is done by the common law; and that defenders, before these Acts of Parliament, being liable to the whole debt for deterring of deforcers, the escheat of their moveables was statuted to belong to the King, and the creditor who suffered thereby; and hath been so determined by the Lords, 5th July 1683, Mitchell against Barclay.—It was replied, to the second, That albeit the deforcer was pursued criminally before the justice for his violence and breach of the peace, yet that hindereth not the pursuer to intent a civil process for his damage and loss, both these actions being consistent, and for divers causes; and the law doth not allow to recur where two actions are competent,—only where they are for one and the same cause, and where pinguior actio electa, alia extinguitur.

The Lords did repel the defences; notwithstanding that the Acts of Parliament bear that the creditor, quoad the debt whereof he is frustrated, should be first satisfied before the fisk can have any right; but statutes nothing for payment of the debt by the deforcer; as to which the debtor himself is still liable. But, in respect of the foresaid practick, and that if the libel had been expressly founded upon damage and interest, undoubtedly it would have been sustained upon that ground; and, therefore, they found the defender liable for the debt: seeing, otherwise, the creditor might be altogether frustrated, the debtor being freed from the caption, and so in a capacity to go away; and the deforcer might be a man of no fortune, and his moveables inconsiderable.

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