Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Jean Scot, Lady Snadon, v. David Moodie
1683 and 1684.
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1683. November 22.—At the Privy Council, there are mutual libels between Jean Scot Lady Snadon, and David Moodie in Montrose; he complaining, that she reviled him as perjured, &c.; and she alleged, that he cruelly beat her. Both are admitted to probation; but Bailie Miln was casten from being a witness on the parity of the late Act of Parliament in 1681; that he had married the Lady's niece, though he was a common witness, cited and elected by them both. But David Moodie passed from him; in which case, I think he should at least bear his expenses.
Item, David was excused from being present, on a bill and testificate that he was indisposed; and also a commission was granted to Erskine of Dun, and Falconer of Glenfarquhar, to examine Bailie Turnbull at Montrose, because by certificate it was made appear he had fallen and broken his arm. Vide 3d January 1684.
Vol. I. Page 244.
1684. January 3.—At Privy Council, the Lady Snadon's probation (mentioned supra, 22d November,) was advised, and the riot found proven; and Moodie fined in 300 merks, as an assythment to her. Vide more of this, 19th February 1684.
Vol. I. Page 256.
1684. February 19.—Jean Scot, Lady Snadon, having given in a bill to the Lords, representing that David Moodie had beat her pendente lite, (vide 3d January 1684;) and so ought to lose the cause, conform to the 138th Act 1584, and 219th Act 1594:—Objected for David,—1mo, That there was but one neutral indifferent witness who proved the beating; the other two were married on her nieces. 2do, That, at the time of the alleged beating, there was a standing submission in write betwixt them, and so there was no lis pendens. 3tio, Duæ actiones pænales non debent concurrere circa idem subjectum. But so it is, he was fined for this blow already, and ought not also to be punished in the loss of his civil action beside. To the 1st, it was Answered,—They were witnesses also elected by Moody, and so cannot be objected against by him; as Mascardus shows, vol. 3. de Probat. conclus. 1242. To the second, A submission does not extinguish, but only supersedes the depending process; else one, after the expiring of a submission, could not insist in the former process, but behoved to raise a new one; and here the submission was given over and deserted before his beating, and so the process reconvalesced. To the third, They do not concur, unless there be a special statute for it, as here; and Tolquhon, at Mr John Strachan the minister's instance, was fined both at Privy Council, and in the loss of his depending cause; (vide 22d February 1683;) and the fine at Privy Council is not penal, but only the vindicta publica, and the assythment and reparation of the party's damage.
Yet the Lords waved all thir points, and refused the desire of her bill; because the decreet of Secret Council produced by her in modum probationis did not bear that her libel anent his beating her was proven; but it was so scrimply worded that the Lords only found him guilty of a wrong done to her, in general words.
Then she offered to prove, by the probation led at Privy Council, that he beat her; and if the Session found it defective, she offered yet to supply it. Upon this, she gave in a bill to the Council, on the 21st February 1684, craving they might explain their decreet, and declare that David Moody was fined for beating her; or else authorise their clerks to transmit the probation to the Lords of Session, that they might peruse the same, and so find it proven, in order to their declaring and applying the Acts of Parliament to David, and that he had lost the cause. The Privy Council would not grant the desire of this bill.
Then, upon the 27th February, the Lords, upon a bill given in by the Lady Snadon, allowed her a diligence against the clerks of the Privy Council to give up and transmit the probation there led anent Moody's beating her; as also to adduce farther witnesses for proving it, if she pleases.
The Clerks of Privy Council were displeased that the Session should have granted diligence against them,—a Court equally sovereign with themselves.
