Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Mr Andrew Hedderwick
v.
John Wauch

Date: 17 July 1666

Click here to view a pdf copy of this documet : PDF Copy

John M'Kinlaw being convicted for killing and stealing of four cows from Cuthbert Home, and being hanged for the said theft,—John Wauch, and several others, (being also indicted by the justices appointed by Parliament Commission of Justiciaries, within the sheriffdom of Roxburgh, in a justice-court at Jedburgh,) was indicted of theftous resetting, concealing, and away-putting the said stolen goods. And probation being led against them, after they had simply denied the dittay, without any defence, they found the panel guilty of the reset of the stolen goods: and although, by the law and constant practique of this kingdom, resetters of thefts are punishable with the punishment of thieves; viz. by death, and confiscation of their moveable goods, to be escheat and in-brought to his Majesty's use; yet, without any warrant frorn his Majesty's Council, the commissioners did alter the statutory punishment of the law; and ordained two of the said persons, convicted of reset, to be publicly scourged in Jedburgh, and thereafter to be imprisoned till they should find caution for their good behaviour; and ordained the said John Wauch to [pay] 1200 pounds Scots, within 24 hours; wherein if he failyied, ordained him to be sent to the Barbadoes, and his moveable goods and gear to be escheat and in-brought to his Majesty's use: and Mr Andrew Heddenvick, [having obtained] the gift of the said John Wauch's escheat, pursues a declarator.

It was alleged, There could be no declarator of the escheat; because there was no doom pronounced, escheating the goods to his Majesty's use; at least the doom pronounced was conditional, viz. that Wauch should either pay 1200 pounds, or otherways his goods should be escheat,—like as he has purged the condition by payment of the 1200 pounds. 2do. As no doom of confiscation was pronounced, so there could no such doom be pronounced; because, although the crime of theft be punishable by death, or confiscation of moveables; yet every accession thereto is not punished with the same punishment: such as, is uplifting of goods, which is only the accession libelled; and is punished arbitrio judicis.

Whereunto it was answered, The doom is opponed,—bearing that his moveables could be escheat. And, as to the condition adjected, the same cannot be respected; because the punishment being certain in law, it could not be qualified by the addition of any adjected condition; so that the foresaid condition must be repute tanquam [non] adjectus. 2do. Though there had never been any doom pronounced, yet there wasjus quæsitum domino regi of the moveable escheat of the defender, by the commission of the crime, and declaring of the fact, by the proper judge, viz. the assize; who, by their verdict, found him guilty of the reset: and, therefore, seeing the constant law and practique of this kingdom ordained the resetters of theft, and thieves, to be punished as the principal thief; as K. Ja. VI. Par. 1. cap. xxi. and Par. 11. cap. ci.: conform whereunto, the justices of this kingdom have constantly been in use to condemn the said resetters by death, or confiscation of moveables; except the punishment were remitted by his Majesty; or allowed by warrant from the Secret Council.

The Lords repelled the allegeance proponed for the defender Wauch; and sustained the declarator.

Page 78.