Scottish Court of Session Decisions

Subject_1 CONCURSUS ACTIONUM.
Subject_2 SECT. I.

Where different Actions arise upon the same fact, tending to the same end, the Pursuer cannot insist upon both.

Fithie
v.
Carmichael

Date: 20 March 1623
Case No. No 3.

The Lords sustained a contravention, although the Magistrates of the place, (both parties being burgesses,) had immediately committed the party to prison for the fact; and this because no satisfaction was decerned by the Magistrates to be given to the complainer.

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In a contravention, Fithie contra Carmichael, being both burgesses of Dundee, the fact of contravention being for casting down the pursuer to the ground, and bruising him with his knees and elbows, without any blood or other violence;——The Lords sustained the contravention, notwithstanding it was alleged by the defender, That he being convened at the pursuer's instance, for the same fact, before the Bailies of Dundee, they being town burgesses of that burgh, the Bailies had, for that fact, committed him to prison, after trial taken by them, of the matter of the fact; and so he being once punished therefor, he ought not to be pursued de novo at the pursuer's instance; therefore this allegeance was repelled, because no satisfaction was decerned by the Bailies to be given to the party complainer.

Act. Mowat. Alt. Russel. Clerk, Gibson. Fol. Dic. v. 1. p. 185. Durie, p. 59.