Scottish Court of Session Decisions

Subject_1 DECISIONS of THE LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 PRISONER.

v.

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William M'Leslie, from deadly malice, took out letters of lawburrows against John Nimmo, weaver in Kilmarnock: he executed the charge by putting a copy in the lockhole of his door after 11 o'clock at night, in such manner that Nimmo knew nothing of the affair till some days after: when, at ten in the evening, he was apprehended upon a caption, for not finding caution in the lawburrows; and though there were several royal burrows within a few miles, was carried to the Highlands, and there detained, while his friends at Kilmarnock knew not what was become of him. But hearing he had been seen at Renfrew in the custody of a messenger, they preferred a petition and complaint to the Lords, praying for a warrant to suspend the letters, and set Nimmo at liberty.

Upon this petition, the Lords found M'Leslie and the messenger liable in £35 of damages and expenses, and a fine of 100 merks, and ordered M'Leslie to prison for a limited time, about three months, and thereafter till payment of the fine and damages.

M'Leslie applied to the Magistrates of Edinburgh for the benefit of the act of grace. The Magistrates refused it; whereupon he petitioned the Court; which petition was refused also, the Lords being of opinion, as stated in the Dictionary, “that the words in the Act of Parliament, ‘civil debts’ were to be understood debts arising ex contractu aut quasi contractu, in opposition to debts arising ex delicto; and that therefore, not only were penalties, properly so called, imposed for crimes, excepted from the benefit of the Act of Parliament, but that all damages arising ex delicto are comprehended under the exception.”

From looking into the papers in this case, the mode of application seems to have been irregular, for, in place of a petition, the prisoner ought to have applied by advocation.