The Lords were found to be judges competent in a contravention of law-borrows, although the deeds were criminally qualified, and altho' there was no previous criminal process.
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The Lord Ross was bound, and acted, in the books of Secret Council, not to molest or trouble, otherways than by law, certain persons indwellers in the town of R., and that under the pain of 3000 merks. He being pursued before the Lords of Council and Session for the contravention of the said act, it was alleged, That the Lords could not decern upon the contravention unto the time the said Lords and others, his marrows, were first criminally convicted, by reason the contravention was qualified criminaliter, by taking men forth of their houses under silence of night, and for striking and wounding of them; and if the matter, being criminal in itself, were committed to probation by witnesses, the inconvenience would follow, that two or three witnesses would prove the thing that would take away men's lives, or at the least be a great motive to the inquest in the criminal judgment. To all this was answered, That the practice of Scotland was in such sort, that, into such kind of actions as were, of their own nature, both criminal and civil, the parties might pursue both criminally and civilly, and the one prejudged not the other, as into the action of breaking of law-borrows, and the action of falset, according to the common law, C. Quando civilis actio prejudicet. The Lords pronounced by interlocutor, that they were judges competent to cognosce in the cause of contravention, notwithstanding that there was no criminal convict before past in the said cause.
