Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 BATTERY PENDENTE LITE.

John Durward
v.
Janet Durward

1776. November 30,

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During the dependance of a suit before the Sheriff of Forfar, John Durward against Janet Durward, an old infirm widow woman, John gave in a complaint to the Sheriff against Janet, for a battery pendente lite. The Sheriff found Janet guilty of a battery, and applied the penalty of the Act 1584, and decerned against Janet in terms of the libel. In an advocation, the Lord Auchinleck, Ordinary, pronounced this interlocutor:—“The Lord Ordinary, having considered the mutual memorials, with the decreet and other proceedings, finds, first, That the proof is by witnesses not habile; and secondly, finds, That the statute refers to batteries committed by men; not feminine scuffles, as it bears that he shall be subjected to the penalties, but does not say, or she; and therefore sustains the defences against the conclusions for the battery, and assoilyies.

Having afterwards taken the case to report, the Lords were of opinion that the Act of Parliament made no distinction between men and women; but they thought, that an old woman pushing a man out of her house, and making his head meet the wall so as to make his nose bleed,—and this proved chiefly by his agent's clerk,—was not a battery in terms of the Act; neither was it sufficiently proved. They pronounced this interlocutor:—“On report of the Lord President, in absence of Lord Auchinleck, and having advised the memorials hinc hide, the Lords find the complaint for an alleged battery not sufficiently proved; assoilyie from the complaint, and find the complainer, John Durward, liable in expenses hitherto incurred, which they modify to L.10 sterling.”

This day, 30th November 1776, refused a reclaiming petition without answers, and adhered.

In pronouncing this decision, the Lords shunned to declare what a battery was, and therefore worded their interlocutor as above. There are three Acts of Parliament relative to battery pendente lite, 1555, c.—; 1584, c. 138;

and 1594, c. 223.

The first of the above Acts is omitted in Skene and Glendoick's Acts, but is to be found in the Black Acts.

It was alleged that the above laws are peculiar to this country, and that there are none similar in any other country; but it is informed there are statutes much of the same import, both in England and France.