Scottish Court of Session Decisions

Subject_1 JURISDICTION.

Skippers of Irvine
v.
Hamilton

1742, July 24.
Case No. No. 27.

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As to importers of Irish victual, we seemed to agree that the penalties of L.100 sterling mentioned in the acts 1672 and 1686, for which bonds were to be granted, takes no place in this case, and I believe in no case, but three questions occurred, first, Whether the punishment of fine and imprisonment as well as transportation are not confined to two months? 2dly, Whether proveable by oath? 3dly, Whether the punishment of fine and imprisonment be at all committed to inferior Judges,—and a hearing was appointed this day se'ennight.—26th June 1741. Vide 3d July.

The Court seemed to agree, that whatever jurisdiction was by the act 1703 committed to the Judge Ordinary with respect either to fining, imprisonment, or transportation, that the conviction is limited to six months from the delinquency; 2dly, They seemed to think that by the act 1672 the inferior Judges might seize and confiscate. But the great difficulty was, Whether the Ordinary Judge could by the act 1672 fine and imprison? and if they could not, but only the Council, Whether that power was extended to them by the act 1703? and upon the whole superseded for three weeks, and recommended to search for the proclamations of Council before 1672 or 1703; and afterwards 28th July such an act in 1668 was produced. The Court seemed to agree that the punishment committed to the Council by the act 1672 was not transferred to the Judge Ordinary, but they found that by common law the Judge Ordinary could execute these laws.

This case marked 3d July. I have marked also what was done in Court, 28th July. 2dly, As the Court found that this act 1703 gave no new jurisdiction except as to the punishment by transportation of unlanded men, we found that none of the other penalties were limited to six months, and that it was no defence against these other penalties, and found it not proveable by oath of party. 5th June 1742 Altered, and found proveable by oath of party by the President's casting vote. Pro were Minto, Drummore, Kilkerran, Balmerino, Monzie, et ego. Con. were Royston, Justice-Clerk, Haining, Strichen, Dun, Leven. Adhered as to the prescription. 24th July, Adhered, and refused a bill without answers.