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Scottish Court of Session Decisions >>
The Procurator Fiscal of the Stewart-court of Annandale, v George Carruthers of Holmains. [1705] Mor 2251 (7 December 1705)
URL: http://www.bailii.org/scot/cases/ScotCS/1705/Mor0602251-001.html Cite as:
[1705] Mor 2251
The Procurator Fiscal of the Stewart-court of Annandale, v. George Carruthers of Holmains
Date: 7 December 1705 Case No. No 1.
The poor of the parish only, have right to the fine for clandestine marriage; but, in order to encourage to prosecute, the procurator-fiscal will be allowed his full expences out of the first of the fine.
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The said George having married a gentlewoman of his own name, but irregularly, without proclamations, he is pursued by the procurator-fiscal of Annandale before Johnston of Girth-head, stewart-depute thereof, for payment of 1000 merks, as the fine imposed, by the 34th act, Parl. 1661, on a landed gentleman for a clandestine marriage; and this cause being advocate to the Lords, it was alleged for Holmains the defender, That though he was irregularly married, and so liable to the penalty, yet that, by the foresaid act of Parliament, does not belong to the fiscal, but only to the poor; for there are two clauses in the act, one relating to such marriages within the kingdom, and their fines are expressly applied to pious uses within the parish where they dwell; and the other clause is, when persons living in Scotland retire to England or Ireland, and marry there without proclamation of banns, these penalties are divided, the one-half to the King and fisk, and the other half to the poor; now, Holmains' marriage was of the first kind, and celebrated within the kingdom, and so the whole pertains to the poor of the parish of Dalton, within which he dwells, and his lands lie, and to whom he has given satisfaction, and obtained the minister's discharge for the same; whereby all pretence of the stewart-depute or his fiscal is cut off. Answered, The last clause of the act, dividing the fine betwixt the fisk and the poor, must have a retrospect to the whole act, and is explained by the 12th act 1695, committing the execution of these laws against disorderly marriages to the procurator-fiscal of the bounds and jurisdiction where the person guilty dwells; and if they had not the encouragement of the half of the fine, they would never pursue, so these delinquencies would go unpunished; and the payment made to the minister of the parish is but simulate and collussive, for some small composition; and the discharge is null, as wanting the concourse of the elders, and being posterior to the citation at the fiscal's instance. The Lords found the stewart and his fiscal had no right to this fine, being a clandestine marriage within the kingdom; but considered, if there were no reward, there would be no pursuer, and therefore found he ought to have all his expenses allowed him out of the first end of the fine; and repelled the defence founded on the payment made to the minister, and found Holmains liable in the fine. It may be doubted, whether the composition given the minister, when instructed, (the discharge not mentioning the particular sum received), should be deducted out of the first end of the fine, and imputed in part payment thereof pro tanto; and if he be only liable for the remainder; seeing the design was collusive and in defraud.
Reporter, Lord Pollock.
Fol. Dic. v. 1. p. 143. Fountainhall, v. 2. p. 298.
