Subject_1 BATTERY. Subject_2 *** In the Eighth Parliament of King James VI. chap. 138. anno 1584.
His majesty, with advise and consent of his Hienes three Estaits of this present Parliament, hes ratified and appreived, and be the tenour hereof, ratifies and appreivis the act and statute under-written: and decernis and declairis the same, to have strength, force and effect of ane act of Parliament, of the quhilk the tenour followis. - At Edinburgh, the penult day of Maij, the zeir of God, ane thousand five hundreth four scoir three zeires. The quhilk day, in presence of the Kingis Majestie, sittand in judgement, and Lordes of his Hienes Councel and Session, compeired Maister David Makgil of Nisbet, Advocate to his Majestie, and in the name of his Hienes maist faithful, humble, and obedient subjectes, exponed and declared, how in the Parliament halden at Edinburgh, the xx. day of Junij, the zeir of God 1555 zeires, be his Majesties umqhile dearest Gue-dame Marie Queene Dowrier, and Regent of this realme for the time: ane ordinance and act of Parliament was maid, anent the slauchter of parties in persute and desense of their actiones; quhilk act, althoucht in the selfe maist profitable and necessarie, to have bene ane perpetual law in all times thereafter, for repressing of proud and undauntoned braggares, boasters, and oppressours of their parties: Zit was the same only temporal, for the space of three zieres, after the making thereof; quhilk act, the said Advocate, in name, and for the causes foirsaidis, desired to be renewed and established in ane perpetual law in all times cumming, with the augmentations following. Upon the quhilk desire, our Soveraine Lord, willing to follow the gude example and intention of his predecessores, for the reverence and increase of justice, and assurance of the parties in persute and defence of their actiones, and executiones of the same, hes with advise of the saidis Lordis of his Councel and Session, ordained, decerned, and declared, that fra this day foorth, in all times cumming, gif it fall happen either the defender or persewer, to slay, or wound, to the effusion of blude, or utherways to invade any of them ane uther in ony sort, quhair upon they may be criminally accused, after the raising of summonds or precepts, and lawful execution theirof, or in ony time befoir the complete execution of the decreet to be given thereupon: The committer of the slauchter, blude, or invasion, in maner foresaid, or being airt, pairt, red or councel thereof; gif it be the defender, sall be condemned at the instance of the persewer; or in case of his decease, of the nearest of the kin of him quha is slaine, wounded to the effusion of his blude, or invaded, havand richt thereto, without ony probation of the libel persewed, except summar cognition to be tane of the slauchter, blude-sched, or invasion, before the Justice, or uther criminal Judge, competent thereto, be conviction, or beand fugitive and put to the horne. And gif the decreete be given, the same to be unreduceable for ever. And gif the persewer slay, wound to the effusion of blude, or invade the defender, as it is above written, or be airt, pairt, red or councel thereof, cognition being tane, as said is; in that case the defender, or in case of his decease, the nearest of his kin, able to succeede in that richt, sall heve absolvitour fra the libel of the persewer simpliciter, against the quhilk the persewer, nor na uther be his richt, sall ever be heard be way of reduction or restitution in integrum, in ony time thereafter, quhat age, condition, or qualitie that ever the slayer, drawer of the blude, or invader foresaid be of: The proces of transferring in the causes above-written respective, to be upon ane fifteene dayes warning, but diet, table, or continuation of utheris summondes. And gif the slayer, schedder of blude, or invader, as said is, hes landes or liferentes, and beis denunced rebel, and put to the horne, for non-finding of sovertie, or non-comperance to underly the law, for the said slauchter, blude-sched, or invasion; in that case the slayer, schedder of blude, or invader, incontinent after the denunciation, sall tyne the lyferent of his landes, benefice, office, and utheris rentes, and commodities quhatsumever for his lyfetime, without ony farder delay of zeir and day, as in uther causes of tinsel of lyferentes, through being zeir and day at the horne.
Attour our Soveraine Lord, be the faith and duetie of ane Christiane Prince, promisis to give na respett, nor remission to the offendares in fik causes. And gif his Majestie or his successours dois in the contrare, (as is not beleeved) the using of the said respett, or remission be ony of the parties, persewer, or defender, sall be the like cause, and of the samin effect, as their conviction, for the cause abone specified. And this act and ordinance to indure for the space of seven zeirs immediatlie heirafter; and to be confirmed in his Hienes nixt Parliament, to have the strength and effect of ane act theirof, and to be observed as an perpetual law, in time cumming.
Acts of Parliament, v. 1. p. 485.
*** In the Fourteenth Parliament of King James VI. chap. 219. anno 1594.
His majesty, having consideration of the manifold oppressiones done within this realme, and for the maist parte occurring betuixt parties contending in justice, be proud and undantoned braggers, boasters and oppressoures: And understanding that there was ane acte of Parliament maid of lang time by past; first in the dayes of unquhill Marie, Queene Dowager, his Hienesse Gud-dame, of worthy memory, quhilk was only temporall, for the space of three zeires nixt following, and approven be his Hienesse in his Parliament halden at Edinburgh, in the moneth of Maij, ane thousand five hundreth four score four zeires; quairby it was found and declared, that if ony person, ather persewer or defender, suld happen to slay or wound to the effusion of blood, or otherwise to invade ane of them ane uther in ony sorte, quhairupon they micht be oriminally accused, after the raising of the summondes and precepts, and lauchfull execution thereof, or in ony time before the compleit execution to be recovered thereupon: The committer of the slaughter, bloud or invasion, in maner foresaid, or being airt, pairt, red or councell thereof; gif it be the defender, he sall be condemned at the instance of the persewer, gif he be on life; or in case of his decase, the nearest of his kinne, quha is slaine, without ony probation of the libel, except summar cognition to be tane of the slaughter, blood shed or invasion, before the Justice, or ony uther judge competent thereto: And gif the persewer slayis, woundis or invadis the defender, as said is, or be art, pairt, red or councell thereof, cognition being tane, in case the defender be on live, or in case of his decease, the nearest of kinne, sall have absolvitour fra the persewer's libell: And gif the slayer, shedder of bloud, or invader, as said is, hes landes or liferentes, and beis denunced rebell, and put to the horne, for none-finding of soverty, or none-compearance, to underly the law for the said slauchter, blood-shed, or invasion; in that case, the slayer, shedder of blood, or invader, incontinent after the denunciation, sal tine the benefite of his liferent, of quhatsumever his landes, offices or commodities, as in the saids actes and statutes thereupon, at mair length is conteined; quhilk last act was also temporall, to indure for the space of seven zeires: And now it being knawen to his Hienesse, and the said Estaites, how necessar the samine is, to be always observed and keeped in continual observance, as ane universal law in all time cumming, for repressing of the saids invasiones; therefore his Hienesse, with advise of the estaites, and haill body of this present Parliament, ratifies, apprievis, and affirmis baith the saids first and second actes, with the haill poyntes, articles, and conditiones conteined thereintill, and ordainis the same to stand as ane perpetuall law in all time cumming.
Acts of Parliament, v. 1. p. 703.
Barrara Fea v. John Trail, and David Trail
Date: 18 January 1709 Case No. No 9.
A woman, pursuer of a process, having struck the defender on the mouth with the back of her hand, but no blood following, this not found to amount to such a beating and invading as to incur tinsel of the cause.
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Barbara Fea, Spouse to Patrick Trail younger of Ellness in Orkney, pursues John Trail, her father-in-law, and David Trail, his second son, for repossessing her in these lands, whence they had ejected her. David gives in a complaint to the Lords, that she had beat him in the face; and so, by the act of Parl. 1594, had lost the cause. Answered, That it was a politic stratagem, and contrivance of his own to insnare her; and all she did, when he was reproaching her with vile obscene language, she clapped her hand on his mouth to stop his railing; and he was neither blae nor bloody, nor could shew the least appearance of any stroke. The witnesses being examined, deponed, That, after some talk and whispering amongst them, they saw her hit him in the mouth with the back of her hand, but no blood followed. The Lords having advised the depositions, found this was not such a beating and invading, as to fall under the act of Parliament inferring tinsel of the cause.
*** The following is another branch of the same cause, referred to, voce Husband and Wife.
1710. January 31.—I reported Barbara Fea, spouse to John Trail of Ellness in Orkney, contra John Trail her husband's father, for an aliment, on this ground, That her husband had deserted her by his father's instigation, and as he was bound to aliment his son, so, by the same rule, he behoved to entertain her, being his wife, and una et eadem persona, in construction of law. Answered, This pursuit, without concourse of her husband, was null, a wife not being integra persona, unless authorised. Replied, To supply this defect my husband is cited by a diligence. The Lords repelled the dilator. 2do, Alleged for the defender, Though a father be jure naturæ bound to aliment his children; yet if they be come to age, and in a probable way of gaining their own livelihood, no law will oblige him, and multo minus will this extend to his wife; but ita est he is serving in one of the Queen's ships of war, and able to maintain both himself and her, and she ought to follow where his affairs call him. Answered, This is to toss me from one hand to another; when I go to my husband, he shews me letters from his father, discharging him to own me, under the pain of exheredation, and his displeasure. When I apply to my father-in-law, he bids me go to my husband and cohabit with him, so I am mocked betwixt the two, which neither law nor conscience will allow.—Some of the Lords thought that a son could have no action for aliment, if he was able to entertain himself; and esto he were not, yet he could not crave a separate aliment, but behoved to come in and take a part of his father's entertainment in his family, such as it was, and not pretend to live by himself, and burden his father with the expence; and it being put to the vote, whether her father-in-law was bound to aliment her, or if she must follow her husband, it carried in the negative by the President's vote, that her father-in-law was not bound to aliment her. See Aliment.
Fol. Dic. v. 1. p. 93. Fountainball, v. 2. p. 481. & 561.
