Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Francis Mollyson v. Clarke, Young, and Spence
Date: 18 March 1707
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Francis Mollyson, merchant in Brechin, being their commissioner to the Parliament, the foresaid three persons, his creditors, arrested his fees in the magistrates of Brechin's hands. He gives in a bill to the Lords, complaining of these arrestments as illegal and unwarrantable; seeing, as the Members of Parliament their persons cannot be attached by caption or imprisonment, so neither can their fees or salaries be arrested, being of an alimentary nature, and as much privileged as the officers of state their dues, which, by an Act of Sederunt in 1613, were declared not arrestable: and all he has allowed him is only half-a-crown a-day, which, considering chamber-rent, horse-hires, diet, and other incident charges, will be but a scrimp aliment to a moderate man attending the Parliament-, and therefore craved, since they were unduly laid on, that they might be loosed without either caution or consignation.
Answered,—The Parliament being yet current, he had not yet served out, nor earned his fees: Neither is every thing, without which a man cannot conveniently live, to be reputed a privileged aliment. And, as to the exemption of Parliament members from caption, there is no law in the case, nor any breach of privilege, if done. All that can be pled is, The Parliament may require their man, and set him at liberty to attend them, if they please; but otherwise he may legally be detained. In England their privilege is greater; for it extends to their goods and servants, but has never been so understood here. Stair, lib. 3, tit. 1, page 375, shows that servants' fees are not arrestable, in the case of Mr Beg against Davidson, preceptor of Heriot's Hospital.
The Lords, by the Chancellor's vote, found the commissioners to Parliament their salaries not arrestable; and therefore loosed them without caution or consignation: though it was remembered that, in 1690, the Lords having loosed an arrestment, without caution or consignation, in favours of Hay of Park, they did satisfy the creditor-arrester, and took the payment of the debt upon themselves, as being legally loosed. It had been done by one or two of their number, but the whole submitted to the payment.
