§ MR. WILLIAMSON (for Lord COLIN CAMPBELL)asked the Lord Advocate, Whether his attention has been drawn to the case of Norman Mackinnon, a crofter in the parish of Barvas, who claims the sum of £40, which ho alleges lawfully belongs to him as heir to his brother Donald Mackinnon, who died in the Transvaal in 1875, and which sum was sent by the authorities of the Transvaal to his father, Lachlan Mackinnon (since deceased), described as "residing in an island belonging to the parish of Harris." The money sent in the form of a bill of exchange was by mis- 34 take received by another Lachlan Mackinnon, also residing in an island belonging to the parish of Harris, namely, St. Kilda, whose son, also named Donald, had left St. Kilda thirteen years before, and had not since been heard of. I Documents were procured clearly establishing the fact that a mistake had been made, and that the money was intended to be sent to the Lachlan Mackinnon first mentioned, and who formerly resided in the island of Taransay. Every endeavour was made by Norman, the son of the latter, to recover the property. In consequence of the great obstacle arising from the fact that there is no postal communication to St. Kilda, Norman Mackinnon resorted to the expedient of causing his name to be put on the poor's roll of the court, and sought justice from the Court of Session; and two agents were appointed in succession by the Court of Session; whether the agent last appointed, despairing of successfully prosecuting the case in consequence of the absence of regular postal communication between St. Kilda and the mainland, applied to the Crown authorities and demanded a criminal prosecution; whether, in consequence, the papers were ordered to be sent to the Procurator Fiscal at Lochmaddy in June 1881, and, on the decease of the Procurator Fiscal a few-days after, a fruitless search was made for these papers; whether he is aware that the Minister of Barvas communicated with the Home Office, and that the following reply was sent by the Under Secretary of State:—
That he regretted he could not interfere to aid in the enforcement of a pecuniary claim' and that, after consultation with the Lord Advocate, he was of opinion that there would be no ground for criminal proceedings unless it were proved that the St. Kilda man was retaining the money in bad faith;whether any steps were taken to throw light on this point; and, whether, after seeing the missing papers which were discovered last year, he has decided not to institute criminal proceedings; or, what further steps will be taken by the Crown authorities in Edinburgh to prevent a miscarriage of justice?
THE LORD ADVOCATE (Mr. J. B. BALFOUR)This case has been several times under consideration. In its first aspect, it is plainly of the nature of a civil claim for the recovery of money alleged to have been paid in error. This 35 was the view taken by the advisers of Norman Mackinnon, until they were deterred by the expense from further proceeding with a civil action, and applied to the Crown authorities to institute a criminal prosecution. The papers were sent by Mackinnon's agent to the Procurator Fiscal at Lochmaddy, who died shortly afterwards, and the papers were missing for a considerable time. A search instituted by direction of the Crown Office was at length successful; but after considering them we came to the conclusion that there was no ground for criminal proceedings, as it was not proved that the money was received, or was being retained in bad faith, oven if it was paid in error, which has never yet been established. I understand that Lachlan Mackinnon, St. Kilda, asserts that he believes the money to have come from his son. The case is not one for the action of the Crown authorities, who could only proceed if there was ground for a criminal charge; and the papers have been returned to Mackinnon's agent, who may take such steps as he thinks proper.