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Scottish Court of Session Decisions >>
Alexander Higgens, Fiscal of the Admiralty, v John Matthie, Robert Hog, Davidson, &c. [1705] 4 Brn 614 (22 June 1705)
URL: http://www.bailii.org/scot/cases/ScotCS/1705/Brn040614-0109.html Cite as:
[1705] 4 Brn 614
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Alexander Higgens, Fiscal of the Admiralty, v. John Matthie, Robert Hog, Davidson, &c
Date: 22 June 1705
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Mr Alexander Higgens, Procurator-fiscal to the High Court of Admiralty, against John Matthie, Robert Hog, Davidson, and others, skippers in Preston-pans. The fiscal having pursued them for exportation of wool, linen yarn, and money, out of the kingdom, contrary to law, and having taken out a decreet against Matthie for £300 sterling, and the rest for lesser quantities, they present a bill of suspension, on thir reasons: 1mo, That they were harassed and convened upon stretches of old and obsolete laws, contrary to the claim of right: And it was a very questionable problem, whether the exporting money was truly prejudicial to the republic (for Sparta thought not so;) and what was the nation benefited by taking it from poor men and giving it to Mr Higgens? 2do, Denying all export of money, but only of our native product of goods, to baiter with foreign commodities they were to import, the 10th Act of Parliament, 1663, discharging the exportation of money, does not simply prohibit it, but prescribes the manner:—that there shall be an office erected by the Treasury, where all skippers shall appear, and make faith anent what they carry with them. Now, that office being never established, they cannot be liable. 3tio, The said act bears an express allowance for each skipper to export as much as will be sufficient for making their voyage: and they are ready to depone they carried no more; but that the most of their effects outward was goods more than money. 4to, Some of them are decerned for exporting five guineas; whereas, the Act allows any to carry L.5 sterling with him: And, though it speaks only of passengers, yet that is not in contradistinction to seamen, and so cannot exclude them.
Answered,—The decreet, holding them as confessed, is opponed. And the laws against exporting of money are so far from being in desuetude, that they are still in viridi observantia, though contravened. Et non refert whether that office was erected or not, seeing it may be still proven by their oaths, ad civilem effectum, though it be a delinquency and penal: and, under the pretence of taking away no more than what is necessary to ply their voyage and defray their exigencies, they shall never be liable; for this were fraudem legi facere.
The Lords at first repelled the reasons, and refused their bill of suspension; but afterwards, on a new application, they allowed them to be further heard.
