A woman was rudely attacked, on pretence of having about her prohibited lace. The fine which had been awarded was found not exigible, in consequence of the indemnity, although for reparation of an injury to an individual; because the suit had been in name of the procurator fiscal.
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Craigie of Dumbarnie being decerned to pay L. 40 to the procurator-fiscal of Perth, as having committed a riot upon Sibella Grant, in laying hold upon her publicly on a Sabbath day, upon pretence that she had lace under her hoods, contrary to the sumptuary act; he suspends on this reason, that this being a penalty, was taken away by the King's act of pardon of penal statutes, it not being capital.—It was answered, That the act related only to penal statutes, and could not be extended to riots.—It was replied, That it bore expressly, “all transgressions, not only against penal statutes, but other laws inferring arbitrary or pecunial punishment.”—It was duplied, That it could not reach to the private interest of parties, which the King Could not discharge; and in effect this was to the behoof of the person injured as an assythment for her affront; for though it be in the name of the procurator-fiscal, it is assigned to her.
The Lords found, That the decreet being taken in the name of the procurator-fiscal, and not in the name, or for the interest, of the person injured, the same fell within the proclamation, without prejudice to her to pursue for her interest as accords.
Stair, v. 2. p. 375.**** Gosford reports this case:
In a suspension raised at Dumbarnie's instance, of a decreet pronounced by the Sheriff-depute of Fife, whereby he was fined in the sum of L. 40 Scots, for a riot committed on Sibella Grant, in putting violent hands upon her on the Sabbath day, and pulling her hood off her head, upon these reasons, 1mo, That the decreet was null, because it doth not bear any particular day assigned to the witnesses to compear and depone, so that the suspender was not obliged to be present to interrogate the witnesses, or to make objections, 2do, That by the late proclamation, the King had discharged all penalties incurred by virtue of all penal statutes, unless the same were paid, or bond given therefor; and before the alleged riot, having been libelled to have been before the said day, and being pursued at the instance of the procurator-fiscal, who is answerable therefor to the King's Treasury, the suspender was free, neither having given bond nor made payment.—It was answered to the first, That decreets of inferior judges, bearing that they were given upon full probation of the libel, against parties compearing by their procurators, needed not bear a particular day assigned for the probation, which should only be set down in the minutes of process.—It was answered to the second, That albeit the action was pursued at the instance of the procurator-fiscal, yet it was to the behoof of the party injured, likeas she was assigned thereto by the procurator-fiscal.—The Lords did repel the first reason, and found that the decreet was not null; but as to the second, they did sustain the same, the process and decreet being only in name of the procurator-fiscal, and so fell within the King's late act of grace; but they reserved to the party injured to pursue de novo in her own name before any competent judge.
