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Alexander Hamilton pursues a removing against Thomas Harper, who alleged, Absolvitor, because the pursuer invaded and beat the defender, in the Session-house, during the dependence of this cause; and therefore, by the act of Parliament 1584, Cap. 219. renewed 1592, Cap. 173. the pursuer cadit causu, and the defender must be assoilzied.
The Lords having considered the said acts of Parliament, and finding thereby that the invasion must be cognosced in a criminal process, competent to the Justices, and must be found summarily by an inquest;
The question was, whether beating, without effusion of blood, was such a criminal fact? because it seems to be but a riot; and next, whether the Lords would take probation of it themselves, or if it behoved to be recognosced by the Justices?
The Lords found the defence relevant, for the act of Parliament anent violence in the King's presence, or in the Session-house, when the Session is sitting, make such deeds to incur death; and therefore, whether they would assign a term to the defender to prove, that in the mean time he might proceed criminally, before the Justice, and instruct the defence by the sentence of the Justice, or whether they would receive the probation themselves, they resolved to hear the parties upon it.
