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Scottish Court of Session Decisions >>
John Henderson of Kirklandhill v Robert Dewar. [1708] 4 Brn 715 (6 November 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Brn040715-0215.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
John Henderson of Kirklandhill v. Robert Dewar
Date: 6 November 1708
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Robert Dewar, vintner at Channelkirk, being imprisoned in Haddington tolbooth by John Henderson of Kirklandhill, for payment of 100 merks of yearly tack-duty, contained in a tack of some acres set to him, and of 300 merks in a bond granted by him to one Bell, and assigned to Kirlandhill; he gives in a bill of suspension, containing a relaxation and charge to set at liberty, on thir reasons, That his tack-duty was all exhausted, and paid to the minister, either for his stipend or for Kirklandhill's share and proportion of the stent laid on for repairing his manse. And for the 300 merks due by his bond, the charger had maliciously and unnecessarily taken assignation thereto without an onerous cause, and was more than paid thereof, by poinding his household furniture and plenishing. 2do, The imprisonment was unwarrantable, being by a messenger deposed by the Lord Lyon, who could not legally apprehend him: and he had taken instruments thereon.
Answered for the charger to the first,—That, since these payments, they had fitted an account in March last, whereby Dewar, after allowance and deduction of all his partial payments, acknowledges he is yet resting of the tack-duty £71: 11s. Scots. And, as to the poinding, he oppones the execution and appretiation; which does not amount to near the half of his sums. To the second,—He is not concerned in the messenger's deprivation, never being intimated to him; especially seeing he often deprives them for no malverse in their office, but only for not paying in their dues to him. And it is enough if he is holden and reputed a messenger to validate his acting; like Barbarius Philippus, l. 3, D. de Offic. Prœtor. 2do, There was a concurring messenger along with him, against whom there lay no such exception.
The Lords found they could not summarily set him out, but recommended to the Ordinary to deal with the charger to restrict his sum to what was justly-due, and to accept of caution; which Dewar offered him upon his liberation; and, if he did not consent, then to discuss the reasons on the bill.
