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M'Christie raised an action of damages for wrongous imprisonment, by the illegal use of letters of horning and caption, obtained upon a decree of the Sheriff of Perthshire for a civil debt, during the dependence of a suspension at his instance, and a sist obtained thereupon. The conclusions of the summons were solely on the common law, without any reference to the act 1701, c. 6.
The original libel was raised in December 1826. It was afterwards allowed to fall asleep, and a summons of wakening was only raised in March 1830.
The defender pleaded a preliminary defence in bar of action, founded on the prescription or limitation of such actions, introduced by the statute 1701.
The Lord Ordinary repelled ‘the plea of prescription, founded on the statute 1701, c. 6, as a preliminary defence.’
The defenders reclaimed ; and two questions were raised for the consideration of the Court, viz. first , Whether the provisions of the act 1701, c. 6, were applicable in any case to imprisonment for civil debt; and secondly , Supposing them to be so, whether they could be applied to an action like the present, in which the libel was laid solely on the common law, and did not conclude for any of the penalties of the statute.
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Common Room
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