Subject_1 CONCURSUS ACTIONUM. Subject_2 SECT. III.
Where the Conclusions of two Actions are only Different, not Contradictory, both may be Insisted in.
Mitchel v. Law and Stuarts
Date: 25 July 1633 Case No. No 9.
Though a party deforced has pursued criminally, ad vindictam publicam, for punishment, he may thereafter pursue civilly for his private interest.
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David Mitchel having raised caption against Alexander Barclay, younger of Maters, who was rebel at his instance, for sums of money; whereupon a messenger, at his instance, having past to apprehend him, and having met with him, Mr George Law, George and Robert Stuarts being in the rebel's company, impeded the said officer, and debarred him from taking of the rebel, and put him away with violence, with drawn swords and pistols; whereupon the said David Mitchel intents action against them for payment of these sums, for which the rebel was to have been apprehended, and for which he was rebel at the pursuer's instance. The defenders alleging, That this was an action of the nature of deforcement, which ought to be pursued after the manner of a cause, at the King's advocate's instance, and should conclude, as is ordained by act of Parliament, c. 118. 1581, that the deforcement being tried, the deforcer's escheat should be adjudged to the King, and the creditors to be paid in the first end thereof; but whereas, it is pursued for payment of the debt, for staying of an officer, and to be so proven by two witnesses, it were of dangerous consequence, the like whereof was never pursued before, nor can be now sustained. The exception was repelled, and the action sustained upon the deed libelled, to infer the conclusion libelled, which the Lords found ought to be proven by sufficient unsuspected witnesses; and found it not necessary, to urge the pursuer to intent an action of deforcement, as the act of Parliament prescribes; seeing the act prohibits not the party hurt, to seek any other lawful redress, as in law he best might; for, if that action was competent to him, which was more, far more this action, whereby less punishment is craved against the defenders, and the pursuer having his option of two causes, he might chuse any of them as he pleased. And this pursuit was found very allowable, and if the King's advocate, or any party having interest, pleased to intent a deforcement against these defenders, that action was also free to them to pursue, unprejudged by this pursuit.
Act. ——Alt, Advocatus.Clerk, Scot.
Fol. Dic. v. 1. p. 186. Durie, p. 691.
