Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Hucheson v. Walter Carmichael
Date: 17 June 1709
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Walter Carmichael being the exeunt tenant out of the lands of Arniston, the herd of Hutcheson, the new entrant tenant, suffering his master's goods to encroach upon Walter's corns, the said Walter's servants fell a-quarrelling, and hound them off; whereupon a scuffle arises, and Walter, in defence of his servants, beats Hutcheson's herd, and bleeds him. Hutcheson exhibits a complaint against Walter, before the Justices of Peace, and, upon a probation by witnesses, obtains a decreet, fining him in £100 Scots to the clerk of court, for the riot, blood, and battery, and in 200 merks to Hutcheson, by way of assythment, and to lie in prison eight days, as a corporal punishment; and, after that is elapsed, to continue prisoner aye and until the fines be paid; and accordingly he is incarcerated.
Of this sentence he presents a bill of suspension, containing a charge to set at liberty, on thir reasons, That he compeared and craved a double of the libel, with the names of the witnesses to be adduced against him, and a procurator to plead for him; all which was denied, as not the practice of thir summary courts; though it is both juris naturalis et positivi to allow a sight of the process, and a time to answer. Secundo, He offered to exculpate and prove, that Hutcheson's man was versans in illicito, and the aggressor; and objected against his witnesses, as being domestic servants: and yet all this was repelled. Tertio, The highest fine that can be imposed for such riots is £50 Scots; which they had most exorbitantly exceeded. All which he was able to prove by an extract of the process, which the clerk refused him, as being a party concerned in the fine, unless he would pay him two guineas; on which extortion he took instruments.
Answered,—The present question was not here to discuss the justice or injustice of the decreet, which they would sufficiently vindicate in due time, and show it was a most atrocious riot; but only whether he should be set at liberty, and the suspension passed; and there being now no Privy Council in North Britain, the hands of the Justices of Peace, in punishing riots for disturbing the public peace, ought not to be weakened; and they are content the suspension should pass, on consignation of the sums decerned for.
The Lords were sensible the fines were too exorbitant, and that it was not easy for a poor man to command so much money for consigning; and so, they having exceeded their power, they passed the bill on caution, without putting him to consignation; and, at discussing, it would appear who was in the wrong.
