Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. XIV.

Turpis causa. - Sale to a White Bonnet at a Roup. - Obligation not to oppose reduction of a Verdict of Fatuity. - Transacting a Crime. - Transacting Church Penance. - British Subject purchasing a Captured British Ship. - Combination of Offerers at a Sale. - Combination to raise the rate of Wages. - Combination against receiving Money of a particular Coinage. - Pactum contra utilitatem.

Grant
v.
Davidson

Date: 2 August 1786
Case No. No 102.

A transaction between a kirk-session and a person guilty of fornication, whereby the latter became bound to pay a sum of money to the kirk-treasurer for behoof of the poor, legal.

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William Davidson having been guilty of fornication, agreed to pay to Gregor Grant, the kirk-treasurer of the parish in which he resided, a small sum for behoof of the poor; intending, in this manner, to quash any action which might have been instituted against him in the civil courts, for the penalties imposed by 1661, cap. 38., and likewise to prevent his being prosecuted before the tribunals of the church.

He afterwards refused to fulfil this agreement, on the ground of its being illegal; and

Pleaded in defence, Kirk-sessions are not warranted, in a judicial capacity, to impose pecuniary fines on persons guilty of fornication. They are equally unauthorised to compound, extrajudicially, those penalties which may be levied in the civil courts, in virtue of the statute of 1661. Indeed, this last must be quite inept and ineffectual; for as these fines are recoverable by a popular action, no private agreement with one person can hinder a subsequent prosecution at the suit of another. Viewed, too, as a pecuniary commutation of penance, such a transaction as the present is liable to much exception. It seems equally inconsistent with the purpose of discipline, as with the genius of our ecclesiastical policy. See 10th Annæ, cap. 6.

Answered for the pursuer, Though kirk-sessions are not authorised to impose fines for offences of this nature, they have become as legal guardians of the poor's funds, the only prosecutors for those which, by the statute 1661, may be inflicted by the justices of the peace, and other ordinary judges. If, then, such penalties may be recovered, and are in fact exclusively sued for by the kirk-sessions, no reason can be given, why the party liable may not agree to pay to them without a prosecution.

Neither is it of any importance in the present question, that after an agreement of this sort, the delinquent is generally understood to be discharged from ecclesiastical censures. Of this species of punishment the civil courts have no jurisdiction or cognisance. It belongs to the superior judicatories of the church alone, to put a stop to these proceedings in kirk-sessions, when appearing to interfere with the spiritual welfare of the people.

The Lord Ordinary found, “That the debt being contracted by way of transaction, to free the defender, as well from any prosecution before the justices of the peace, as from any ecclesiastical inquiry into his conduct, cannot be enforced by this Court; reserving to the pursuer, and all others concerned, to insist in a proper action before the justices of the peace, or other judges competent.”

A reclaiming petition having been preferred, which was followed with answers, it was

Observed on the Bench, As the practice of bargaining with kirk-sessions, for irregularities of this kind, has long prevailed in Scotland, and the money thence arising forms a very considerable branch of the poor's funds; so there do not appear sufficient legal grounds for preventing it in future.

The Lords altered the judgment of the Lord Ordinary, and found the defender liable.

Lord Ordinary, Hailes. Act. W. Miller. Alt. Honyman. Clerk, Robertson. Fol. Dic. v. 4. p. 30. Fac. Col. No 291. p. 447.