Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 REPARATION.
Subject_3 Amount of Assythment.

Lady Leith, and her Children,
v.
Earl of Fife

1768. January 8th; and 1769. June 13.

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This case is reported by Lord Kaimes, (Mor. p. 13,904,) who has stated the circumstances, and the argument maintained on the question, whether an assythment was due? That question having been determined in favour of the pursuer, it next came to be considered, What sum should be granted in name of assythment?

The following is Lord Hailes's report of the opinions delivered by the Judges on that point:—

Hailes. We have no data by which to determine the extent of the assythment. After the Rebellion in 1715, it was proposed to take five years' rent of the estates of those concerned in the rebellion, and to grant an amnesty. May not something of the same kind be done here?

Pitfour. That proposal came from a friend of Lord Hailes, who did not like forfeitures. It was three, not five years' rent; but I think that five, or even three years' rent, is by far too much. In punishments, both consilium et eventus are to be considered. Here there was no premeditated intention of murder; but still there was a man killed, and consequently an assythment is due. The patrimonial loss of Leithhall's family does not affect me, for that loss is not proved.

Auchinleck. Anciently, there were regulations or rates for the price of blood, estimated according to the circumstances of the person slain: there was the kelcher, (head money,) “domini regis, comitis, thani, vel rustici.” In later practice, assythment has been regulated by other principles: the circumstances of the slayer are attended to as well as the rank of the slain. The assythment, here, ought to be moderate, for the slayer has a wife and nine children, and a small fortune.

Kaimes. I must suppose that there was a voluntary killing. The wife and nine children move me. At the same time, what is due is rather a solatium than damages.

President. The situation of the persons claiming an assythment is to be considered; but when those persons are well provided, and in easy circumstances, I would give assythment rather as a sort of revenge than as damages. It is the decree of this Court, rather than the money, which ought to gratify the pursuer.

Barjarg. If the person slain had a liferent office, the assythment would be greater, because the patrimonial loss to his relations is greater. The only evidence of the murder is from the acknowledgment of the defender. The fugitation and escheat are only for contempt of the Court, not any proof of the murder. This circumstance ought to go into the scale in voting the assythment.

On the 16th February 1769, “The Lords modified the assythment and damages to L.150 in whole.”

On the 13th June, 1769, altered and modified L.300 in whole.

Act. Cosmo Gordon. Alt. A. Lockhart. Reporter, Barjarg.