A person was charged for an exorbitant penalty of lawburrows, and found caution. Afterwards contravening, he was decerned to pay that penalty, and actually paid it. Having suspended, and craved modification in time coming, this was allowed him.
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The Laird of Kilspindie being charged to find lawburrows to Patrick Learmonth in Aberlady, under the pain of 5000 merks, for eschewing the danger of horning, found caution; and being thereafter pursued for contravention, the same being proved against him, he paid the said sum of 5000 merks; and finding himself greatly prejudged, he sought thereafter a suspension of the said charge of lawburrows, for modification of the exorbitant pain therein contained. Which matter being reasoned, some of the Lords alleged, That, seeing he had given obedience by finding caution absolutely, without any suspension in the beginning, and that sincesyne he had committed a violent contravention, which was proved against him, there was no reason to modify the same.—It was answered, That the pain was immoderate, an evil direct from the beginning; and albeit he had obeyed by finding of caution, that took not from him liberty to seek it to be thereafter modified by suspension; and if he had committed any contravention medio tempore, he had paid dear for it; but seeing he sought modification only for times to come, it could not of reason to be refused, having respect to the quality of the persons; in respect whereof the Lords modified the pain to 1000 merks in time coming.
