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.
John Duff v. William Johnston of Sheins
Date: 15 December 1710
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Mr William Johnston of Sheins being one of the principal tacksmen of the inland excise, he made Mr Robert Martin of Bruntbrae his sub-collector, in the shire of Aberdeen; who falling considerably in arrears, he takes out caption against him, and sends it to John Duff, messenger in Aberdeen, with a letter, desiring him with all speed to put it in execution, cost what it would, and he should be thankfully paid. Duff, after long search and travel, at last finds him, and puts him in Montrose prison; which occasioned Patrick Macdougal, his son-in-law, to capitulate with Sheins, and take off the debt; and obliged himself to relieve Sheins, at Duff the messenger's hands, and obtain his discharge. This made Shein slack and remiss in paying Duff when craved, remitting him always to Mr Macdougal, who offered him only £5 sterling for all his pains and expense; which necessitated Duff to raise a process against Sheins for payment of £341 Scots it stood him and his party; debtors being there near to the mountains and forests where they skulk, and cannot be hunted out without great travel and expense, and ofttimes deforce the messengers to the effusion of their blood, and wounding them and their party. And he, being allowed to prove his libel, adduced two witnesses, Walker and Moir, who both deponed, That Duff, and five or six more associates, spent four or five days in quest of the rebel, travelling a hundred miles back and forward, and at last apprehended him at Kincairn-o-neal. Walker declares, he took no wages for his attendance, because Duff assisted him at other times. Moir pointed all the particular places through which they went, from the terminus a quo to the terminus ad quern; and that Duff maintained his assistants all the time, and paid them also for their pains; and that he used to get more from other gentlemen who employed him than what he demanded here.
When this probation came to be advised, it was objected,—They never refused him a competent gratification for his pains; but his account was the most exorbitant that ever a messenger presumed to give in: and that the 72d Act, 1587, had restricted messengers' wages to a merk per diem, summer and winter overhead; and yet they were ready to give him more: and the 83d Act of the same Parliament was so very sensible of their extortion and abusing the lieges, that it declares, if they be convicted of oppression, they shall be punished to the death. And, as to the probation, Walker says, He took nothing but his diet and entertainment; and Moir was a most inhabile witness, being his own servant; and though he made him enter a messenger since, yet that was only in view to capacitate him. And the Lords need no more to convince them of the extravagancy of this account, but to read where he charges £16 Scots for one night's lodging, and £10 sterling for his own pains. And, once lay down this preparative, messengers may exhaust the sums of the caption with such covetous and unreasonable accounts. And there is a general outcry against this Duff; et qui semel malus, talis prcesumitur in eodem gencre mali.
Answered,—He opponed Sheins' obligatory letter; and it was neither just nor generous in him, after his own satisfaction, to turn him over in duriorcm ad-versarium, into an agent's hands. And though the Act of Parliament speaks of a merk a-day, yet, in 1587, when that law was made, a merk went farther than ten will go now: and that their wages are local, according to the difficulty of the work is evident from the 35th Act, 1686, where justices of peace and their inferior judges are empowered to modify messenger's wages to more or less, as circumstances require; which prove the same to be local: and there is no place in Scotland where the Queen's letters of caption meet with greater resistance and deforcements than in the north. And, as to the probation, if Walker served him gratis at this time, then he is debitor beneficii to him for it, and must give him an equivalent another time: and Moir was not his servant when he deponed.
The Lords, instead of his L.341, gave him L.200 Scots in full of all, which some thought a high modification; yet Duff complained much, that they had put him to more than L.100 of expenses, in seeking his own by this process, for which he got nothing at all.
