William Kerr, and Agnes Shaw, his wife, v. Matthew Hay
Date: 29 November 1774 Case No. No 135.
It is competent to the Court to judge in a reduction of a sentence pronounced by an inferior court, upon a criminal charge, and awarding a pecuniary reparation, which the private prosecutors deemed inadequate to the injury sustained.
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An action was brought by Kerr and Shaw, with concourse of the procurator fiscal, before the Sheriff court of Ayr, against Matthew Hay, charging Hay with an assault and battery committed upon the private prosecutors, when they were going about their lawful affairs along the high-way, and without any manner of provocation; and concluding for L. 20 of assythment, damages, and expenses, and of the like sum to the procurator fiscal of court.
This battery and assault being committed when none were present, a reference was made to the oath of party; and, upon advising the defender's oath, the Sheriff-substitute pronounced an interlocutor, imposing a fine of a small sum, in full of assythment, damages, and expenses to the private prosecutor; and of five shillings sterling to the fiscal.
The private prosecutors, dissatisfied with the reparation awarded to them, brought a process of reduction of the Sheriff-substitute's judgment.
Argued for Hay; That a pursuer of a criminal action, brought before an inferior court, cannot, after decree, raise a reduction in this Court, so as to make way for a heavier sentence than the inferior court have thought proper to pronounce.
The Lord Ordinary found this action of reduction not competent before this Court, therefore dismissed the same; but, upon a reclaiming bill and answers,
The Court thought the circumstance of the name of the procurator fiscal appearing pro forma in this libel immaterial, the conclusions being only ad civilem effectum, and the libel itself bore a reference to the oath of party; and, as the case now stood, there was no form in which relief could be obtained from the supreme criminal court; therefore,
The Lords 'altered the Ordinary's interlocutor, and repelled the objection to the competency of this Court.'
Act. Dean of Faculty.Alt. Crosbie.Clerk, Tait.
Fol. Dic. v. 3. p. 346. Fac. Col. No 144. p. 377.
