Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by LORD KILLKERRAN, ADVOCATE.

James Thomson and Others
v.
Straton of Laurieston andOthers

Date: 19 December 1752

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This case is reported by Lord Elchies, (Jurisdiction, No. 59.) Lord Kilkerran's note of it is as follows:—

“That riots, batteries, and the like acts, in their nature criminal, do in general fall under the cognizance of the Judge Ordinary, albeit committed by officers of the revenue when about the execution of their office, is undoubted. I say, in general this is undoubted, where the act is in its nature criminal, and which no statute can be pled to justify.

But then, there are other kind of facts which may be pleaded to be justified by a statute, and, therefore, are criminal, and riotous or not, according to the construction of a statute. For example, an officer has a writ of assistance, and upon the authority of it, breaks open the door of an unentered house, and pleads the statute of () to justify his so doing.

Answer.—The statute only authorizes the entry, but not the breaking open doors ; for that all that the statute does, in case entry is refused, is to impose a penalty. Now, when this is the case, and, indeed, it is the very case in hand, the question is, To which of the two Courts the determination of this question does belong? and it is far from being a clear one, and before the act of indemnity, my opinion would have been, that it belonged to the Exchequer.

And all the question is, if that act has made such an alteration, that the Court should now have no jurisdiction?

June 30, 1758.—The Lords sustained the jurisdiction of this Court.

December 19, 1752.—The Lords having heard this petition, with the answers thereto, they supersede advising thereof until the Lords have a conference with the Barons of Exchequer thereon, and recommend to the Lord President to acquaint the Barons of the said conference. (Signed) Ro. Dundas.” And by their other interlocutor, dated the 5th of December, 1753, they pronounced the following interlocutor:— “The Lords having again resumed the consideration of this petition, with the answers thereto, they supersede advising thereof, until the Lords have a conference with the Barons of Exchequer thereon, and recommend to the Lord President, for this week, to acquaint the Barons of the said conference. In consequence of which two interlocutors, the Lords, on this day, 11th December, 1753, authorised and appointed the Lord President for the time, Drumore, Elchies, Kilkerran, as a committee of their members, to meet with and have a conference of the Barons on the said petition and answer.”