Drawing a sword to invade a man, though no harm followed, was found sufficient to infer contravention.
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In an action pursued by M'Kie against M'Kie for the contravention of an act of the burrow court of Wigton, wherein the said M'Kie obliged himself and his cautioner, that the other should be harmless, &c. under the pain of L. 500, because, after the said act, he had drawn a sword, and pursued and invaded the other M'Kie; it was excepted, That this fact could infer no contravention nor penalty, because it was modo conatus sine damno aut effectu.—It was answered, That the invasion was relevant without any farther qualification. In respect of the which summons and reply, the Lords repelled the exception. The Advocate compeared thereafter, and according to his desire was admitted for his Highness, and alleged, That the half of the penalty could not appertain to the Provost and Bailies of Wigton, but to the King; because that all acts of caution found for keeping the King's peace, under pecuniary pains, in cases of contravention, make the half of the pain to fall to the King's Majesty, unless the act bear the express contrary, which is not in this case.—It was answered, That albeit the King had right to the half of the penalties resulting from the contravention of lawburrows, found in the register of Session or Privy Council, yet penalties of troublance within burgh pertain to the Magistrates of the same. Notwithstanding whereof the Lords found, That the King's Majesty and his Treasurer had right to half of the penalties foresaid.
