Scottish Court of Session Decisions

Subject_1 INDEMNITY.

Alexander Agnew Kirk Treasurer of Kirkum,
v.
Hugh Campbell of Aires

Date: 19 November 1712
Case No. No 9.

One committing fornication since the act of indemnity, subjected to the double penalty of a repeated transgression, upon account of fornication committed by him before the indemnity.

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

In the discussing of a suspension of a decreet obtained by Alexander Agnew before the Sheriff of Wigton, against Hugh Campbell for the sum of L. 200 as the penalty for his relapse into fornication, he being a landed man, conform to the act 38, Parliament 1. Charles II.,

The Lords found that fornication committed by the suspender since the act of indemnity, subjected him to the double penalty of a repeated transgression, in respect of fornication committed by him before the indemnity: Albeit it was alleged for the suspender, That there could be no relapse but where the person accused was formerly guilty of the same crime; and any fornication before the indemnity cannot be pleaded, because the indemnity dischargeth persons to be sued, vexed, or disquieted in their bodies, goods, chattels, &c. for any prior offence; so that the first fornication thus sopited and extinguished by the act of oblivion, ought not to be ripped up again, or brought in remembrance, to infer any penal consequences; but the subsequent offence should be reckoned as the first: In respect it was answered for the charger, 1mo, The act of indemnity cannot alter the nature of things, or hinder a second offence to be a relapse, and thereby liable to a double penalty, which is no part of the penalty of the first transgression indemnified, but only the penalty of the relapse, which would be due, albeit the penalty of the first fornication had been discharged or paid; nor 2do, Is it a novelty, that crimes indemnified as to penalties due to the fisk, may be urged and proved in order to recover damages to parties lesed, or to other ends. Thus, albeit a ward-vassal may at his pleasure lawfully alienate a part of his lands within the half; yet if he afterwards dispone so much more as with the former part exceeds the half, the alienation that was lawful at first, will come in computo, to infer the pain of recognition. 3tio, No act of indemnity extends to crimes committed after the term therein limited, to lessen or abolish the punishment thereof; and consequently the double penalty of the suspender's second fornication committed after the indemnity, cannot be abated.

Fol. Dic. v. 1. p. 462. Forbes, p. 633.