Scottish Court of Session Decisions

Subject_1 CONCURSUS ACTIONUM.
Subject_2 SECT. III.

Where the Conclusions of two Actions are only Different, not Contradictory, both may be Insisted in.

Murray
v.
French of French-land

Date: 13 December 1672
Case No. No 10.

Found as above.

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Murray pursues French of French-land for payment of a sum, as he who deforced the messenger in the execution of a caption. The defender alleged, That the libel is not relevant, because the acts of Parliament anent deforcement declare the penalty thereof to be the escheat of moveables, and that the party deforced shall have ready access for payment out of the first and readiest of the moveables, but does not bear, that the deforcer shall pay otherwise. 2do, The act of Parliament puts it in the party deforced his option to pursue civilly or criminally, which must import, that if he have made his election to pursue criminally, as he hath done before the Justices, he cannot pursue civilly before the Lords. It was answered to the first, That the act of Parliament bears expressly payment of the debt by the deforcer, but doth not say in the: same sentence, out of the escheat goods, but by a distinct sentence, that the deforced shall be preferred to the King or donatar, and have ready execution against the moveables; which is a several privilege, and neither ought to be restrained in a case so favourable, for maintaining authority, and the execution of public sentences; for it may readily fall out, that the deforcer have little or no moveables, and so should run no hazard; and it was so decided 25th of July 1633; Mitchel contra Bareray, No 9. supra; and was lately so decided in the case —— Scot, son to Longshaw, who deforced a messenger executing a caption. To the second, it was answered, If the pursuer had insisted criminally for his civil interest of the escheat or payment, he could not have insisted civilly; but having only insisted ad vindictam publicam for punishment, as any of the people might do in actione publica et populari, it cannot hinder him now to proceed civilly.

The Lords repelled both the defences, and found the defenders liable for payment of the sum.

Fol. Dic. v. 1. p. 186. Stair, v. 2. p. 133. *** Gosford reports the same case:

Robert French being pursued for payment of the whole debt contained in a bond, granted to Murray, as having deforced the messenger in the execution of his caption against the debtor; it was alleged, By acts of Parl. 1587, c. 85. and 1592, c. 152. it was statute, That deforcers of messengers shall escheat their whole moveables, the one half to the King, and the other to the party wronged; so that this being a penal action, and the punishment expressly determined by law, there is no power left to the Judges to extend the same. 2do, The acts of Parliament, allowing that deforcers may be either civilly or criminally pursued una electa non recurritur ad aliam; but so it is, that the defender was pursued criminally before the Justices for that same fault. It was replied to the first, That the acts of Parliament (render parties) liable to the whole debt, for deterring of deforcers, the escheat of their moveables was statute to belong to the King, and the creditor who suffered thereby, and hath been so determined by the Lords, Mitchel against Barclay, No 9. p. 2916. It was replied to the second. That albeit the deforcer was pursued criminally before the Justice for his violence and breach of the peace, yet that hindereth not the pursuer to intent a civil process for his damage and loss, both these actions being consistent, and for diverse causes; and, the law doth not allow to recur, where two actions are competent; only where they are for one and the same cause, and where pinguior actio electa alia extinguitur.

The Lords did repel the defences, notwithstanding that the acts of Parliament bear, that the creditor quoad the debt, whereof he is frustrate, should be first satisfied, before the fisk can have any right, but statutes nothing for payment of the debt by the deforcer; as to which, the debtor himself is still liable. But, in respect of the foresaid practique, and that if the libel had been expressly founded upon damage and interest, undoubtedly it would have been sustained upon that ground, and therefore, they found the defender liable for the debt, seeing otherwise the creditor might be altogether frustrate, the debtor being from the caption, and in a capacity to go away, and the deforcer might be a man of no fortune and his moveables inconsiderable.

Gorford, MS. p. 287.