Scottish Court of Session Decisions

Subject_1 EXECUTION.

Archibald M'Lachlan's Case

1738, Nov. 28.
Case No. No. 3.

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The Lords were greatly divided in this matter. They had by a mistake appointed M'Lachlan to stand at a post at the Cross the 29th instant, which was within eight days of the sentence contrary to the act 3tio Regis. Some of us thought that we could appoint a new day for execution, as is daily practised in case of reprieves or escapes out of prison, and once was done at a Justice-Air by Royston in a sentence of death on this very act, at least the preceding one, and the President seemed also to come into this opinion. Others were as clear that the Lords could not appoint any other day for execution, nor commute the sentence even at the suit of the party, particularly Drummore. Others doubted of our powers to alter the day, but were for commuting the sentence, as Arniston. Upon the whole it was agreed, and carried upon the narrative of the act of Parliament to find that the sentence could not be executed on the 29th, and therefore to discharge the Magistrates to execute the same.