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.
Robertson v. Strowan
Date: 12 February 1712 Case No. No 10.
Detaining in privato carcere, found such invading as to incur the penalty of the act of Parliament A sister obtained decree against her brother for her provision. The decree did not give her whole claim; and her brother had appealed to the House of Lords. She insisted for the penalty of a battery. Found not to be precluded.
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Mrs Margaret Robertson being provided by her father to 2500 merks of portion, she pursues Strowan her brother for payment. Alleged, The sum is more than paid, in so far as, in my absence out of the kingdom, our mother having applied in 1690 to the privy council, craving an aliment to her children, out of the estate then under forfeiture, she obtained a locality on his saw-miln, by virtue whereof she uplifted near as much as would pay the whole bonds of provision to the rest, as well as the said Margaret, counting the fir-dales at sevenpence the piece, a very moderate price. Answered, The council's grant was a mere donative, and related to no bond: and therefore could never be ascribed in payment of any part of the debt. The Lords found, it being given as an aliment to the younger children, it behoved to come in place of their annualrents, and extinguish the same. But quoad excessum it could not impute in the principal sum, though the intromission considerably exceeded their annualrents; that not being the design of the council's gift. Whereupon Strowan gave in a protest for remeid of law to the British Peers, alleging the intromission should extinguish the principal as well as the interest. At the ingiving of the appeal, she objected he had no persona standi, being forfeited. Answered, He was remitted by the Queen's general pardon and indemnity: But the Lords did not think themselves concerned to meddle with this objection, but left her to insist on it before the Peers, if she thought fit.
Mrs Margaret had another summary action, by way of complaint, against him, that he had lost the plea by the certification in the 219th act 1594, because he had invaded her during the dependence; which being admitted to her probation, she desired the same might be advised this day. Alleged for Strowan, You cannot recur to this action now, because you having insisted in the principal cause for payment of your tocher, you have got a decreet against him therein, and so cannot seek the same thing over again; for where ever there are two actions competent, the one rei persecutoria, and the other penal, and you have got the first, and prevailed in it; by your election you have consumed and absorbed the other, and cannot return to it; no more than a party could pursue both a rei vindicatio and a condictio furtiva; but must content himself with one of them. Answered, If the first decreet had been total for my whole claim, then there might be some pretence to exclude me from my second subsidiary remedy; but so it is, by that first decreet, 15 or 16 years annualrents are cut off, so my second action being pinguior et uberior than the first, in so far as I proving invasion, get my full libel in its whole extent, I may therefore insist in it, to make up what I want by the restriction of the first. But, 2do, I must have its full value, because you have appealed from the Lords, and so loosed their decreet, and laid it open: But if you will pay what is decerned to me, then I'll restrict my second action only to the superplus. The Lords found she might insist in this complaint. Then the Lords proceeded to advise the probation, the sum of which amounted to this; that she coming to her brother's house of Cary, they caused her to alight and took the horse; and she desiring to lodge all night in his house, that she might reason with him about the justice of her cause, he resused it, but ordained six or seven armed men to carry her away to the miln; where she was detained all night, and sentries set upon her at the door, that she might not escape. Alleged, No such violence proven here as to infer the severe penalty of the act of Parliament for tinsel of the cause; for, 1mo, No man is bound to admit any within his house except he please; especially if they have disobliged him, as she had done. 2do, The very commons in that part of the country go armed; so that was no singularity, and she was dismissed the next day. The Lords read the act of Parliament, and found it spoke not only of striking, beating, bleeding, wounding, but also of invasion any manner of way, whereon they might be criminally accused; now the detaining one in carcere privato, without the warrant and authority of a judge, is a very high crime, both in the common law and ours; our personal liberty being one of the must valuable interests of mankind, and the restraining it affecting us more than a cuff or a blow would: And therefore found the detaining her prisoner under sentries fell under the meaning of the act of Parliament. Then he alleged, it was remitted by the Queen's indemnity, and its Parliamentary ratification in 1709. Answered, That remits only the Crown's part of the fines arising from delinquencies, and accrescing to the fisk; but noways takes off the private interest of parties, or the vindicta privata, of which kind that act is, and very necessary for restraining the fervid keenness in our Scots tempers; and which appropriates the whole penalty to the use of the party invaded, and provides nothing to the fisk. The Lords finding it dipped on the interpretation of a new act, they ordained them to inform on this last point of the indemnity. On the 29th February 1712, an appeal was given in against this interlocutor.*
Fol. Dic. v. 1. P. 94. Fountainhall, v. 2. p. 722.
* Affirmed with costs, on 4th June 1712. See Journals of the House of Lords for that year, p. 467.
