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.
Catherine Edmonston and Stephen Oliver v. Thomas Moffat and James Shaw
Date: 18 November 1707
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Catherine Edmonston, and Mr Stephen Oliver, her husband, gave in a petition against Thomas Moffat, merchant, and James Shaw, writer, narrating, that she had a bond from James Edmonston for 6000 merks, as her tocher; and he, having, in August last, unhappily engaged himself with Captain Charteris and others at cards and dice, had lost £1500 sterling. She and her husband thought it high time for them to stir; and, having registrate his bond, and taken out caption and apprehended him, they caused the messenger bring him first to Mr Oliver's chamber, to capitulate with him what farther security he would give them. And, Mr Moffat having all his bonds and writs in his custody, he was desired to grant a bond, as cautioner, to present him; but he refusing, he went away and employed James Shaw to draw a bill of suspension; which they got passed, without James Edmonston's concourse or knowledge, and came and intimated it to Mr Oliver; and, he still refusing to part with James, the prisoner, they interposed, and, shuffling with him, bade Edmonston get to his heels; and immediately he fled to the Abbey for sanctuary: by which trick Mr Oliver and his wife are defrauded of their debt, and the further security then offered them.
Answered,—That they knew nothing of Edmonston's being under caption; neither seeing any messenger in the room nor any caption nor concurrence from the magistrates of Edinburgh; so they were in bona fide to obtain a bill of suspension passed, and to intimate it; and he was as much warranted to go away, seeing there was no legal restraint to detain him, Mr Oliver having no right to hold him in privato carcere, that being crimen plagii.
The Lords were clear, If the messenger had been present with the caption in his hand, no passed bill of suspension could have liberated him, unless it had been passed by three, being in vacance time, and bore expressly that he was apprehended by the messenger, though not, as yet, imprisoned. But, this being denied, the Lords allowed the Ordinary to try if the messenger was present at intimating the passed bill of suspension, and if they used any violence in rescuing him when Mr Oliver offered to detain him. And further, to try what writs Mr Moffat had of the debtor's effects at that time, out of which his sister and her husband might be secured, or satisfied for their debt. For the Lords thought, Albeit, in strict law, they might advise him to go away, yet there was too much art and. trick in the managing of it.
