Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Kirconnel, Donatar,
v.
Allan

Date: 10 August 1688

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Allan having pursued one Grier before the criminal court, for theft, and got him declared fugitive, and denounced,—upon application to the Exchequer he procured the fugitive's escheat to be burdened with L.300 sterling in favours of himself, in respect he had lost his goods, and been at great expenses in apprehending the fugitive, and leading a probation of the theft. The donatar of the escheat understanding that Allan had transacted his damage by the stolen goods, and taken assignation to L.1000 due to Grier, he applied to the Exchequer, that the moveables fallen in escheat might not be burdened with any sum in favours of Allan; but that he might be left to seek his recourse against Grier's real estate, viz. 8000 merks due to him by Maxweltoun. Answered for Allan, By the Act 26, Parliament 1661, a party, pursuing a thief usque ad sententiam, ought to have satisfaction for his lost goods and his expenses. Replied, The sentence against a thief, in such a case, must be upon conviction; and declaring him fugitive is not sufficient. Duplied, The pursuer could do no more, and he did all that was requisite, having charged the thief, and led a pregnant probation in a precognition before the Council, which would have satisfied an inquest; and it was not his fault that the pannel was not convicted, seeing the Council let him out of prison upon caution. The Exchequer inclined to think, that being declared fugitive was not enough, and that the Act of Parliament required a conviction and verdict; but it being informed, that the sum in Maxweltoun's hand was also moveable, the vote was moved, and the L.300 allocated upon Maxweltoun's debt.

This should not be inserted among the decisions of the Session.

Page 118, No. 441.