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.
Sir Patrick Home of Renton v. The Tenants of Headchester
Date: 19 January 1710
Click here to view a pdf copy of this documet : PDF Copy
Sir Patrick Home of Renton, Advocate, having a roum called Forrester-lands, lying within the barony of Old Cambus, belonging to Sir James Hall; and his tenants claiming right to a cart-road through Sir James's ground, to bring home their peats, feal, and divot, out of the muir of Coldingham; and the tenants of Headchester stopping their passage that way, and putting them to go another way far about, Mr John Home, the said Sir Patrick's eldest son, came, in November 1708, with some servants waiting on him, to force their carts' passage, and defend their possession that way; on which a great fray, convocation, and tumult arose, wherein a poor smith was trode to death, and sundry others hurt: whereupon the Justices of Peace for the shire of Berwick having met, and taken probation of the riot, and advised the depositions of the witnesses adduced hinc inde, they found the said Mr Home guilty of the riot; and, as he who causam dedit thereto, fined him in £50 sterling. Of this sentence he raised suspension and reduction, on thir reasons, 1mo, That the Justices proceeded most partially and unjustly; in so far as he gave in a declinator against the Earl of Marchmont, Sir Andrew Home, and Sir John Pringle, as within the defendant degrees of affinity with Sir James Hall, and yet they sat and voted.
Answered,—Any relation that was betwixt them was dissolved by Sir James's lady, daughter to my Lord Marchmont, her death; 2do, Sir James was not the party-complainer, but the constables.
The second reason of suspension was,—That four Justices of Peace had taken a precognition of the scuffle, and found that Sir Patrick's tenants had been in use of driving their carts that way.
Answered,—This was but a packed meeting convened by Sir Patrick; and the quarter-sessions of the Justices, having reviewed the case, found it clearly proven that these tenants never had a passage that way, but merely by tolerance, and when the corns were off the ground; and even then they used to give a quart of ale for a license to pass that nearer way, and not be sent about the remoter cart-road.
3tio, alleged,—That he had proven possession of going that way; and, esto it had been by tolerance and connivance, yet he could not be summarily stopt and dispossessed; and, being opposed manu forti, it was lawful vim vi repellere. And he did not offer to draw his sword till his horse was beat in the face with a great rung: and however one enters into possession, though cast in with a sling-stone, yet he must be turned out by order of law. And l. 3 D. de Vi et Armata, tells us, that arma et tela non solum sunt gladii et hastœ, but likewise fustes et lapides.
Answered,—They oppone the testimonies of the witnesses; by which it is evident Mr Home was the aggressor, and, in the wrong, in claiming a servitude he had no right to; and if he had any pretence, he should have used a civil interruption, and applied to the magistrates, and not in such a barbarous riotous way jus sibi dicere; for if in any case, then here, that rule of law took hold, l. 176 D. de Reg. Jur.—Non est singulis concedendum quod per magistratum publice fieri potest; and servitudes of a via, actus, et iter, being only quasi possessiones, et in dominio et fundo alieno, are not to be vindicated by force and violence: so he was certainly versans in actu illicito. 4to, Mr Home alleged,—That, by the 34th Act 1535, where any debate arises as to right and possession, the same must be first cognosced by the Lords of Session, before the riot can be decided, and so the Justices have precipitated their sentence.
Answered,—That they had neither meddled with the right nor possession, but reserved these points to the Lords. All they judged was allenarly the riot; and which deserved a deeper censure than they had inflicted, a poor man having lost his life in the cause.
The Lords having read the depositions of the witnesses, they found the riot and aggression proven; and therefore repelled Mr Home's reasons of nullity against the decreet. But it being moved, that the fine seemed too exorbitant and excessive, seeing £50 Scots was the ordinary fine in riots pursued before the sheriff, it was alleged that circumstances might aggravate the crime and justify a much larger fine; and that they could not be modified, seeing they must be given up to the Exchequer.
But it was answered,—That held only after they were exacted, levied, and paid.
The Lords, by plurality, restricted the fine as too high; and then a second vote being put, whether it should be £25 or £30 sterling? it carried £30 by my Lord President's casting vote.
