Scottish Court of Session Decisions

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.

Spence and Troop, Agents for the Manufactory of Newmills,
v.
John Binning of Drumcorse and Adam Oliver

Date: 16 November 1705

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Lord Tillicoultry reported Spence and Troop, agents for the manufactory of Newmills, against John Binning of Drumcorse, and Adam Oliver, merchant in Jedburgh. Mr Binning having bought thirteen packs of wool from the said Oliver, he causes bring them to Queensferry, with a design (as he affirmed) to transport it to Fife, and sell it there. The doers for the manufactory, finding it lying on the rocks beside the shore of Quensferry, they seized it, and pursue John Binning before the sheriff-depute of Linlithgow for confiscation of the wool. And he founding on a permit, it was objected,—It bore only eleven packs, whereas he bought thirteen; which disconformity proved the permit to relate to other wool; 2do, It mentioned it was to go to Borrowstounness; whereas, this was taken unto the Queensferry.

Answered,—The weight was the same, though the eleven packs were, by the carriers, for the ease of their horses, made up in thirteen; and the touching at Queensferry was not much out of their way.

Then the managers offered to prove, by Binning's oath, that the wool was his own, (though he called it Oliver's,) and that it was laid down with a design to ship it in a fleet then ready to sail to Holland, to be exported; contrary to the 9th Act of Parliament 1701. And he refusing to depone anent designs and intentions, as nowise relevant, the sheriff held him as confessed, and escheated the wool. Of which decreet he raised suspension and reduction, on this reason, That he had not contravened the said Act of Parliament, which only prohibits actual exportation, and, to prevent mistakes and arbitrary seizures, determines the cases wherein only it shall be lawful, viz. where it is found on shipboard and water-borne, or when it is found at land, in cellars or houses, packed up in casks, barrels, or boxes. The law has made these præsumptiones juris et de jure, of a designed exportation; none of which cases can be subsumed here; but the same Act has sufficiently provided, when it is found within three miles of a sea-port, and you suspect it, you may cause weigh it, and put the owner to find caution that he shall not export it; which is all that could have been done in this case: and yet this method prescribed by the law was not followed, but a most unwarrantable riotous seizure made, upon weak and frivolous presumptions.

Answered,—That the Act of Parliament discharged exportation, which can never be effectually prevented if it must be first on shipboard ere it can be seized; for here it was laid on the craigs, where the waves would have washen it away within an hour or two, if it had continued there. And Mr Binning had prevaricated all along and refused his oath; which is a stronger manner of probation than those expressed in the Act, and more than equipollent acts; and without this it shall be the easiest thing in the world to frustrate and evacuate the Act, and render it wholly ineffectual.

Replied,—This fell under no clause of the Act, and you cannot forfeit me of my property without a law; and this being a penal statute, and very rigid and unfavourable, it cannot be extended de casu in eastern. And equipollencies cannot take place, no more than equivalent deeds were sustained, in Cleland of Faskine's case, to supply kirk and market, to elide deathbed; and he was not obliged to depone what he designed to do with it, because he might lawfully change and alter his resolution; and, l. 18, D. de Pæn. Cogitationis, pænam nemo patitur, et nuda cogitatio crimen non est, nec ideo quisquam puniendus, except in treason or the like.

Duplied,—Here was no extension, but a case clearer and directer in the eye of the law than those expressed. And it was more than a mere design, there being an actus proximus or an ouvert deed, (as the English call it,) which can ad-mit of no other rational construction; and if it can, you was allowed by your oath to apply and explain it; which you refusing to do, you was justly holden as confessed.

The Lords, by a plurality of eight against five, found the presumptions of exporting so pregnant that they sustained the decreet confiscating the wool, and found it within the sense of the Act of Parliament; which, though it prescribes some ways, yet does not exclude other methods of discovery, equally clear with those mentioned in the Act.

Vol. II. Page 291.