Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ABBEY OF HOLYROODHOUSE.
Subject_3 It is necessary for a Messenger, executing a caption within the precincts of the Abbey, to have the concurrence of the Bailie. In order to have the benefit of the Sanctuary beyond twenty-four hours, the Party's name must be entered in the Abbey books.

John Grant
v.
Robert Donaldson, &c

Date: 14 November 1778

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[Fac. Coll. VIII. 98; Dict. 5.]

Kaimes. Sanctuaries may, in some cases, be of use; but I would confine their privileges within narrow bounds. A person may be within the abbey without meaning to claim the privilege of sanctuary. Custom has determined who they are who are understood to claim the privilege: I would not, without custom, extend it.

Braxfield. The Act 1697, and the strong usage condescended on, show that booking was understood to be necessary. To this purpose also there is an interlocutor, although not a decision; 1741, Hamilton of Redhouse. This shows the opinion of the Court at that time. At any rate, in consequence of the general practice, Donaldson and Messenger were in bona fide.

Justice-Clerk. If there were no such regulation, there would be a necessity of making it; but there is no occasion for that. We have immemorial usage.

On the 14th November 1778, “The Lords dismissed the complaint.”

Act. W. Honeyman. Alt. A. Elphinston.

President. If a messenger can enter the sanctuary, and execute diligence at his own hand, without the concurrence of the bailie, there may frequent and dangerous confusions arise. If a messenger once apprehends a person, no afterbooking can relieve him.

Justice-clerk. When the bailie of the abbey renews the Act 1733, which has been casually lost, he will think it his duty to appoint such concurrence.

Monboddo. I do not think that the concurrence of the bailie was necessary.

On the 15th January 1779, “The Lords found that the concurrence of the bailie of the abbey was necessary; but, in respect of the practice to the contrary, found that the defenders acted bona fide; and therefore dismissed the complaint, and found expenses due to neither party;” varying their interlocutor of ——.

Act. W. Honeyman. Alt. A. Elphinston.