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Scottish Court of Session Decisions >>
George Mackenzie of Rosehaugh v Sir William Scot of Harden. [1695] 4 Brn 282 (5 December 1695)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Brn040282-0629.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
George Mackenzie of Rosehaugh v. Sir William Scot of Harden
Date: 5 December 1695
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Philiphaugh reported the bill of suspension given in by George Mackenzie of Rosehaugh, against Sir William Scot of Harden, of a caption taken out against him on the decreet of Parliament, ordaining him to restore the £1500 sterling of fine gifted to the deceased Sir George Mackenzie, his father, imposed upon Harden in the late times, because his Lady would not come to church. The reason was, That he, being a pupil only of nine years of age, both the common law and that of all nations exemed him from being imprisoned for his father's debt; because, restraint being penal, a pupil, who is not doli capax, cannot incur it during his pupillarity, which continues till fourteen; and, if this were allowed, then tutors, who are generally proxime successuri, might let their pupils be incarcerated, that, by its squalor, the child coming to die, he may succeed; and, if one of nine years old can be apprehended, why not one of two or three, &c.
The Lords considered this was a decreet of Parliament, which use not to be suspended by the Lords of Session except upon obedience; yet, having read the decreet, they found it did not ordain all sort of execution to pass, but only in common style; and this was not to suspend the Parliament's decreet, but only to regulate and explain the manner of executing the same, which they might do by adjudging, poinding, arresting, and all other sort of diligence; but the putting it to execution, by apprehending the child's person, was against the common law: therefore they found no such caption could pass against him during his pupillarity. But, to pay all just deference to the Parliament, they made it alternative that they sisted execution by caption till his pupillarity expired, or the sitting of the next session of Parliament, which of them first occurred; and, that they might proceed causa cognita, they ordained the time of his birth and age to be proven, that it might be known when this sist would expire by his attaining the age of fourteen. But, if the Parliament should happen to sit before that time, then they were to apply to them to stop caption against him during that time, wherein all laws gave him a personal privilege on the accounts foresaid, as also that the education of youth might not be impeded. See the case recorded by Haddington and Dury, 25th June 1624, Scarlet against Somerville, where the Lords, on sundry specialties, stopped a caption against a girl minor, though past fourteen, and that for the space of a year, but prejudice of all other executions.
