Scottish Court of Session Decisions

Subject_1 PRISONER.

Malloch
v.
Relict and Children of Fulton

1751, Nov. 9, 19.
Case No. No. 8.

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Malloch being condemned for murder of Achinbuthie, obtained a pardon, on pleading of which the Court of Justiciary ordered him to be detained in prison till he should find caution for an assythment, to be modified by the Court or the Exchequer; and thereafter the Exchequer modified L.100 sterling; and to get free of it he now raises a process of cessio bonorum. The defences were, that he stood committed by sentence of the Court of Justiciary, which we could not alter or discharge. 2dly, That the cessio only obtains against civil debts not punishment of crimes. 3dly, Assythment or in particular, being given in solatium to the nearest relations, cannot be dispensed with without executing the capital sentence; and both points were well argued by Mr William Miller, both on the civil law and our own;—and we all agreed that the cessio bonorum could not operate against the assythment. We thought in general that cessio is not effectual against any debts ex delicto, otherwise a bankrupt may impune commit any crime that is punished by pecuniary pains or reparation of damages; nay he could not be committed on a lawburrows. 2dly, I doubted whether there is here any debt due, and that the assythment was not a debt, but a condition of the efficacy of the remission; and I know no instance of an action for assythment for slaughter till he had found caution, and then the action is founded on that bond, as in Moody's case against Sir James Stuart; and by the 155th act 1592, on the article of remissions when already granted without assythment, the method prescribed for recovering was not by a civil action, but by trying him for the crime. And on the first point I observed, that the act of grace, which was certainly intended as wide as the cessio, yet is expressly limited to civil debts. 19th November Adhered, and refused a bill without answers unanimously. I was in the Outer-House.