Trial of a riot by a Sheriff without a jury, sustained.
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A riot pursued before the Sheriff of Lanark by Elspeth Marishall contra Margaret Semple, was, by bill of advocation, brought before the Lords, inter alia, on this ground, that the Sheriff's interlocutor was too extensive in finding the libel relevant to infer an arbitrary punishment, the riot being with such aggravations laid in the libel, particularly of its having been committed by way of hamesucken, that the sentence might, on proof, extend to corporal punishment of banishment; in order to either of which, it was necessary for the Sheriff to have proceeded by a jury.
This reason of advocation the Ordinary ‘repelled,’ and the Lords “refused the petition against his interlocutor without answers.”
It was upon this occasion said, that there is no point less fixed than this, when a trial was to be by a jury, and when not; but so far was certain, that inferior judges, particularly the Magistrates of Edinburgh, are in use to judge in riots without a jury, even where banishment from the town, and whipping, has been inflicted.
Fol. Dic. v. 3. p. 178. Kilkerran, (Delinquency) No 15. p. 164.
