Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Falconer of Glenfarquhar v. Sir David Carnegie of Pittarrow
Date: 15 February 1695
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The Lords advised the bill given in by Falconer of Glenfarquhar, against Sir David Carnegie of Pittarrow, on the 138th Act, Parliament 8th, James VI, That he who beats, hurts, or invades another, during the dependence of their process, shall lose the plea. Alleged,—The drawing a sword, and threatening therewith, could not be invasion, in the terms of the Act of Parliament, unless something more had followed on it. 2do. It should be precognosced first in a criminal court. 3tio. He was drunk; and he believed Glenfarquhar had contributed thereto of purpose to provoke him. But this last he would not burden himself to prove.
The Lords found this invasion, in the terms of the Act of Parliament; and admitted the same to Glenfarquhar's probation.
On the 28th of February Pittarrow presented an appeal against his interlocutor. This was too hasty; for appeals should only be from ultimate and definitive sentences whereon execution is to pass; whereas this was only an interlocutor admitting the fact to probation; and it might happen not to be proven.
