No messenger shall exact fees from a person whom he is employed to apprehend upon a caption.
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Before advising the merits of this complaint, the scope whereof will be understood from the judgment subjoined, the respondent, present at the bar, acknowledged that the fact set forth in his answers, viz. that he had not demanded the expenses from the complainer and his wife, but that he had received the same, on the solicitation of the debtor, was truly a mistake; for that he had demanded them, being ignorant that his doing so was contrary to law, having never heard of the Court's proceedings in the 1738, or of the act of sederunt then made. See No 5. p. 8889.
“The Lords find the complaint relevant and proved, and that the respondent is liable to repeat to the complainer the sum of L. 3:6:1 Sterling of expenses, illegally exacted by him; for which sum they decern against him; and also decern against him for the expenses of this complaint. But, in respect of the respondent's candid acknowledgment above mentioned, and his ignorance of the proceedings in the year 1738, and of the act of sederunt then made, the Lords proceed against the respondent to no higher censure; and ordain this interlocutor to be recorded in the books of sederunt.”
N. B. By the 4th article of the late injunctions issued by the Lyon King of Arms, with the advice of the Lords of Council and Session, in terms of act 127th, Parl. 1592, appointed to be observed by all messengers at arms within Scotland, in place of the old injunctions formerly established, “It is ordained, that no messenger, in executing diligence of any kind, shall exact, take, or receive, on his own account, from the person against whom such diligence is executed, or meant to be executed, any sum whatsoever, under any name or pretence whatsoever, as he shall be answerable in any court competent.”
Act. R. Sinclair.Alt. B. W. M'Leod.Clerk, Ross.
Fol. Dic. v. 4. p. 1. Fac. Col, No. 32. p. 86.
