No infenor judge can unlaw in more than L. 10 Scots, for contumacy. This found with respect to a sheriff.
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In an action betwixt Sandilands and Robertson, for suspending and reducing of a decreet given against him by the sheriff of Edinburgh, whereby the reducer of that decreet was ordained by the said sheriff to pay an unlaw of L. 50, for not compearance before them, being cited for a blood committed by him; this decreet for the sheriff's unlaw foresaid, was given in pænam contumaciæ, there being no other cause of the sentence, but only given in absence, and for the parties not compearance, without any probation of the fact, or trial by an assize. The Lords found, That the sheriff cannot impose an unlaw of L. 50, except the fact had been tried against the party committer by an assize; and that nevertheless his absence was the reason, for the which trial could not be taken by an assize; for an assize cannot be admitted, but where the party is present. The Lords found that his contumacy could not excuse him from some penalty, in which the Judge might unlaw him for his absence, which they found ought not to extend to as great an unlaw, as if it had proceeded upon trial of the fact, but that it ought to be moderated, and therefore they modified the same to an unlaw of L. 10.
Act. ———.Alt. Miller.
Fol. Dic. v. 1. p. 501. Durie, p. 107.*** Haddington reports this case.
James Sandilands, baxter, being convened before the sheriff, for oppression done to Margaret Robertson at the West-port, by striking her to the effusion of her blood, he not compearing was unlawed in the pain of L. 50 to the sheriff of Edinburgh for the blood in pænam contumaciæ, without probation or conviction; and, by another sentence at the instance of the party, was decerned to pay to her, the sum of L. 30, for reparation of the wrong and skaith sustained by her. The decreets being suspended, the Lords found the first sentence null, as given without probation; and found the decreet at the instance of the party lawful, as given against Sandilands compearing upon probation, and in respect of that probation for eschewing unnecessary pleas amongst the parties, ordained Sandilands to pay L. 10 to the sheriff
