Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Thomas Alexander of Newton
v.
William Hamilton of Orbiston

Date: 6 July 1694

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Thomas Alexander of Newton, against William Hamilton of Orbiston, for repetition of £1000 he had extorted, in 1685, by casting him and his aged father in prison, on pretence of reset, harbour, and converse with rebels; and, to pass from the pursuit, took this sum from him, giving him a discharge of the money, bearing, that he had given it to another, and that he should refund it if ever he were convened and troubled before a circuit court for these crimes. This was concussion; and to paction for and receive a bribe to pass from his accusation, contra S. C. Turpilianum. The question was, If it fell under the Act of Parliament; being neither a fine nor forfeiture, nor composition for the same, but a gratuity to prevent either. The Lords found it fell under that clause of the act 1690 restoring plundered goods;—that money was comprehended under the general name of goods;—and that it was a clear spuilyie, there being no sentence: so that he was liable both upon the act and on the common law.

But the next doubt was, Whether, as it was now found relevant, if it was also sufficiently proven by Orbiston's discharge produced. Some alleged, that unless he was in prison at the time it was not sufficient. But the Lords thought, seeing the discharge bore he had been in prison, this was metus cadens in constantem virum; and that he feared the same power could throw him in prison again: therefore they found it sufficiently proven, and decerned him to restore the said sum. It was queried if it should be cum omni causa, and the annualrents from the date; but this was not insisted for.

Vol. I. Page 628.