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Scottish Court of Session Decisions >>
The Procurator Fiscal of Air v - . [1672] 2 Brn 622 (9 February 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Brn020622-1037.html Cite as:
[1672] 2 Brn 622
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Procurator Fiscal of Air v. -
Date: 9 February 1672
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The Sheriff-clerk of the Sheriffdom of Air being indebted to a gentlewoman, liferentrix of some lands within the said Sheriffdom, the sum of L.40 Sterling; that he may get an apparent ground of compensation, (for the act gives the fines of all within heritors to the respective courts, who shall see to the execution of the acts;) he causes the Procurator-fiscal pursue her before the Sheriff court, upon the 7th act of Parliament, made in anno 1670 for tinsel of the eighth part of her liferent; and that for her withdrawing and absenting herself from her parish church, by the space of three Sabbath days together, for several times, so that an eighth was toties quoties due; and in absence, procures a decreet against her. This decreet was suspended on thir two reasons, 1mo, That the act means only for wilful staying away, and not of every withdrawing; and so the decreet was null, in so far as it was not proven therein that her separation was through non-conformity: likeas, she offered her to prove causam maxime sonticam absentiæ, videlicet sickness. 2do, Though the act 1670, requires no more for incurring the fines thereby imposed, but only unnecessary absence for the space of the three Lord's days together; yet the first act in 1663 (which must regulate the act 1670, and interpret it in so far as it is silent or doth not abrogate it per expressum,) requires (and that most rationally) that before any one be stated as guilty of that act, they must first be admonished by the minister, in presence of two sufficient witnesses, and that must be so attested by him: now ita est, this method (which seems to be Christ's own, first admonish thy brother in secret; if that prevail not, then before the elders; if he still remain obstinate, then die ecclesiæ;) was not used with her: ergo, &c.
The charge, in my weak judgement, ought to be suspended simpliciter.
