Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 JURISDICTION.
Subject_3 Competency of the Court of Session to an action on a battery, ad civilem effectum, in the first instance.

Alexander Mair
v.
James Shand

Date: 18 July 1778

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[Faculty Collection, VIII. 53; Dict. 7421.]

Hailes. The defender says that this is of the nature of a criminal libel, because it is in the form of a syllogism: but all libels, whether civil or criminal, are, or ought to be in the form of a syllogism. The libel before us is altogether civil; for there is neither instance nor concourse of a public prosecutor. A conclusion for damages is civil, and independent of a conclusion for punishment. The fact, in different lights, may be tried in a Court having criminal jurisdiction, in the first instance, and in a civil court, which has not such jurisdiction.

Braxfield. There may be a claim for damages in this Court, although a civil court; for an action arising ex delicto, may, in its nature, be only rei persecutoria. A man who burns my house may be hanged, and yet I may bring a civil action against him for reparation.

Elliock. I thought that here there was a drunken idle squabble, not fit for the cognisance of this Court.

Justice-Clerk. If the pursuer is unreasonable, and brings an action before this Court without sufficient cause, ne may be censured for his litigiousness; but still the action seems to be competent. It matters not that there is a conclusion for solatium: that will, in the end, be found to be only another name for damages. I am informed, that, in 1763, the Lords sustained their jurisdiction in a similar cause from Irvine.

On the 18th July 1778, “The Lords sustained action;” altering Lord Elliock's interlocutor.

Act. Henry Erskine. Alt. Charles Hay.