Scottish Court of Session Decisions

Subject_1 BATTERY.
Subject_2 *** In the Eighth Parliament of King James VI. chap. 138. anno 1584.

His majesty, with advise and consent of his Hienes three Estaits of this present Parliament, hes ratified and appreived, and be the tenour hereof, ratifies and appreivis the act and statute under-written: and decernis and declairis the same, to have strength, force and effect of ane act of Parliament, of the quhilk the tenour followis. - At Edinburgh, the penult day of Maij, the zeir of God, ane thousand five hundreth four scoir three zeires. The quhilk day, in presence of the Kingis Majestie, sittand in judgement, and Lordes of his Hienes Councel and Session, compeired Maister David Makgil of Nisbet, Advocate to his Majestie, and in the name of his Hienes maist faithful, humble, and obedient subjectes, exponed and declared, how in the Parliament halden at Edinburgh, the xx. day of Junij, the zeir of God 1555 zeires, be his Majesties umqhile dearest Gue-dame Marie Queene Dowrier, and Regent of this realme for the time: ane ordinance and act of Parliament was maid, anent the slauchter of parties in persute and desense of their actiones; quhilk act, althoucht in the selfe maist profitable and necessarie, to have bene ane perpetual law in all times thereafter, for repressing of proud and undauntoned braggares, boasters, and oppressours of their parties: Zit was the same only temporal, for the space of three zieres, after the making thereof; quhilk act, the said Advocate, in name, and for the causes foirsaidis, desired to be renewed and established in ane perpetual law in all times cumming, with the augmentations following. Upon the quhilk desire, our Soveraine Lord, willing to follow the gude example and intention of his predecessores, for the reverence and increase of justice, and assurance of the parties in persute and defence of their actiones, and executiones of the same, hes with advise of the saidis Lordis of his Councel and Session, ordained, decerned, and declared, that fra this day foorth, in all times cumming, gif it fall happen either the defender or persewer, to slay, or wound, to the effusion of blude, or utherways to invade any of them ane uther in ony sort, quhair upon they may be criminally accused, after the raising of summonds or precepts, and lawful execution theirof, or in ony time befoir the complete execution of the decreet to be given thereupon: The committer of the slauchter, blude, or invasion, in maner foresaid, or being airt, pairt, red or councel thereof; gif it be the defender, sall be condemned at the instance of the persewer; or in case of his decease, of the nearest of the kin of him quha is slaine, wounded to the effusion of his blude, or invaded, havand richt thereto, without ony probation of the libel persewed, except summar cognition to be tane of the slauchter, blude-sched, or invasion, before the Justice, or uther criminal Judge, competent thereto, be conviction, or beand fugitive and put to the horne. And gif the decreete be given, the same to be unreduceable for ever. And gif the persewer slay, wound to the effusion of blude, or invade the defender, as it is above written, or be airt, pairt, red or councel thereof, cognition being tane, as said is; in that case the defender, or in case of his decease, the nearest of his kin, able to succeede in that richt, sall heve absolvitour fra the libel of the persewer simpliciter, against the quhilk the persewer, nor na uther be his richt, sall ever be heard be way of reduction or restitution in integrum, in ony time thereafter, quhat age, condition, or qualitie that ever the slayer, drawer of the blude, or invader foresaid be of: The proces of transferring in the causes above-written respective, to be upon ane fifteene dayes warning, but diet, table, or continuation of utheris summondes. And gif the slayer, schedder of blude, or invader, as said is, hes landes or liferentes, and beis denunced rebel, and put to the horne, for non-finding of sovertie, or non-comperance to underly the law, for the said slauchter, blude-sched, or invasion; in that case the slayer, schedder of blude, or invader, incontinent after the denunciation, sall tyne the lyferent of his landes, benefice, office, and utheris rentes, and commodities quhatsumever for his lyfetime, without ony farder delay of zeir and day, as in uther causes of tinsel of lyferentes, through being zeir and day at the horne.

Attour our Soveraine Lord, be the faith and duetie of ane Christiane Prince, promisis to give na respett, nor remission to the offendares in fik causes. And gif his Majestie or his successours dois in the contrare, (as is not beleeved) the using of the said respett, or remission be ony of the parties, persewer, or defender, sall be the like cause, and of the samin effect, as their conviction, for the cause abone specified. And this act and ordinance to indure for the space of seven zeirs immediatlie heirafter; and to be confirmed in his Hienes nixt Parliament, to have the strength and effect of ane act theirof, and to be observed as an perpetual law, in time cumming.

Acts of Parliament, v. 1. p. 485.

*** In the Fourteenth Parliament of King James VI. chap. 219. anno 1594.

His majesty, having consideration of the manifold oppressiones done within this realme, and for the maist parte occurring betuixt parties contending in justice, be proud and undantoned braggers, boasters and oppressoures: And understanding that there was ane acte of Parliament maid of lang time by past; first in the dayes of unquhill Marie, Queene Dowager, his Hienesse Gud-dame, of worthy memory, quhilk was only temporall, for the space of three zeires nixt following, and approven be his Hienesse in his Parliament halden at Edinburgh, in the moneth of Maij, ane thousand five hundreth four score four zeires; quairby it was found and declared, that if ony person, ather persewer or defender, suld happen to slay or wound to the effusion of blood, or otherwise to invade ane of them ane uther in ony sorte, quhairupon they micht be oriminally accused, after the raising of the summondes and precepts, and lauchfull execution thereof, or in ony time before the compleit execution to be recovered thereupon: The committer of the slaughter, bloud or invasion, in maner foresaid, or being airt, pairt, red or councell thereof; gif it be the defender, he sall be condemned at the instance of the persewer, gif he be on life; or in case of his decase, the nearest of his kinne, quha is slaine, without ony probation of the libel, except summar cognition to be tane of the slaughter, blood shed or invasion, before the Justice, or ony uther judge competent thereto: And gif the persewer slayis, woundis or invadis the defender, as said is, or be art, pairt, red or councell thereof, cognition being tane, in case the defender be on live, or in case of his decease, the nearest of kinne, sall have absolvitour fra the persewer's libell: And gif the slayer, shedder of bloud, or invader, as said is, hes landes or liferentes, and beis denunced rebell, and put to the horne, for none-finding of soverty, or none-compearance, to underly the law for the said slauchter, blood-shed, or invasion; in that case, the slayer, shedder of blood, or invader, incontinent after the denunciation, sal tine the benefite of his liferent, of quhatsumever his landes, offices or commodities, as in the saids actes and statutes thereupon, at mair length is conteined; quhilk last act was also temporall, to indure for the space of seven zeires: And now it being knawen to his Hienesse, and the said Estaites, how necessar the samine is, to be always observed and keeped in continual observance, as ane universal law in all time cumming, for repressing of the saids invasiones; therefore his Hienesse, with advise of the estaites, and haill body of this present Parliament, ratifies, apprievis, and affirmis baith the saids first and second actes, with the haill poyntes, articles, and conditiones conteined thereintill, and ordainis the same to stand as ane perpetuall law in all time cumming.

Acts of Parliament, v. 1. p. 703.

The Magistrates and Council of Peebles
v.
Murray of Cringilty, Younger

Date: 19 January 1715
Case No. No 11.

During the dependence of an action against the Magistrates of a town; the pursuer attacked the person of one of the burgesses. This person not being nominatim a party, although having an interest, the act of Parliament found inapplicable.

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During the dependence of a declarator of commonty, at Cringilty's instance, against the Magistrates and Council of Peebles, for declaring his right of commonty upon the lands of Hamilton, there being a complaint given in by the Magistrates, of battery committed by Cringilty upon the person of one Wylie a weaver, burgess of the said town:

It was answered for Cringilty, That the complaint in no manner fell under the act of Parliament, because Wylie was neither pursuer nor defender in the cause; the act (which is 219th Parl. 14th Ja. VI.) bearing precisely, “Gif it sall happen, either the defender or persuer to slae or wound, to the effusion of blood, or otherwayes to invade ane of them ane other:” By which it is plain, that none can come under that act, but either pursuers or defenders, and who are nominatim as such in the summons; for so it further bears, “After the raising of summonds or precepts, and lawful execution thereof:” So that pursuers and defenders names must be both in summons and execution, and it is their persons only that are protected by the special guard of the law. 2dly, The statute is to a high degree penal, and therefore strictly to be interpreted: And to allege, That by citing of Magistrates, every burgess is virtually cited, is indeed to bring on a heavy penalty by implication, contrary to the nature of all punishments of crimes.

Replied for the complainers, That Wylie being a burgess, and having houses in the town, is as properly a defender in this present principal process as any other; nor are the Provost and Counsellors convened in this process, under any other quality, but as co-burgesses: And Wylie is not only Virtually, but in a manner nominatim cited, the council being cited as representing the community, whereof Wylie is one; so that he is really nominatim cited, seeing constat de persona.

Duplied for the defender, 1mo, That however every burgess has a consequential interest in that which belongs to the community, yet certainly the direct right belongs to the collective body represented by the Magistrates; but every particular burgess is under a distinct consideration from the collective body: And, therefore, if the community be pursuer or defender, it does not follow that every burgess is so too; and therefore cannot be brought under penal laws, which concern pursuer or defender as such: For if this were, then every burgess must be cited in actions pursued against a town, which was never said. 2do, If this were sustained, there could be no equality in the case: For it cannot with any reason be alleged, That if Wylie, who is not called, had been the aggressor, therefore he made the community lose the plea; which shows, that really in the case of a community there are hardly habile terms for this act of Parliament. 3tio, The argumentum ab incommodo is invincible; for this should oblige every person that has an action against a community to know every particular member, and every pursuer to know all persons who may claim any remote and consequential interest in the cause.

The Lords found the complaint not relevant to infer the penalty of the act of Parliament anent batteries during the dependence of a process; and therefore assoilzied from the complaint.

Act. Sir Wal. Pringle. Alt. Sir Ja. Nasmyth. Clerk, Alexander. Bruce, No 32. p. 41.