Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Lindsay, Bailie of the Regality at Glasgow,
v.
Paton, Ferguson, and Sundry other Maltmen living there and in the Gorbells

Date: 29 July 1697

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Lindsay, bailie of the regality at Glasgow, having convened Paton, Ferguson, and sundry other maltmen living there and in the Gorbells, for contravening the 37th Act, 1696, anent selling malt by the measure, and having fined them for every particular act in £10 Scots, loties quoties,—they gave in a bill of suspension, on this reason, That he had taken a decreet against each of them for £3000, which was more than any of them was worth; and the most he could go was only £10 for each conviction. He opponed the Act of Parliament, which bore £10 toties quoties, which could be applied to nothing else but for every breach and contravention; else, after a year's transgression, they would cheerfully pay one £10 for all, and so elude the act.

The Lords considered this was a penal law, and not to be extended; and that magistrates and judges ought not to ensnare the people by letting their processes lie over, (which were to invite them, as connived at, to break the law,) and then take a decreet for all, to their utter ruin and undoing. And, the Act being new, they resolved to hear them, in their own presence, How far the judge, by his own negligence or wilful forbearing, ought to lucrate these fines; and what the words “toties quoties,” in such a case, shall import; especially seeing the act is not in viridi observantia, nor has yet taken effect in many places of the kingdom.

Vol. I. Page 790.