Subject_1 BATTERY. Subject_2 *** In the Eighth Parliament of King James VI. chap. 138. anno 1584.
His majesty, with advise and consent of his Hienes three Estaits of this present Parliament, hes ratified and appreived, and be the tenour hereof, ratifies and appreivis the act and statute under-written: and decernis and declairis the same, to have strength, force and effect of ane act of Parliament, of the quhilk the tenour followis. - At Edinburgh, the penult day of Maij, the zeir of God, ane thousand five hundreth four scoir three zeires. The quhilk day, in presence of the Kingis Majestie, sittand in judgement, and Lordes of his Hienes Councel and Session, compeired Maister David Makgil of Nisbet, Advocate to his Majestie, and in the name of his Hienes maist faithful, humble, and obedient subjectes, exponed and declared, how in the Parliament halden at Edinburgh, the xx. day of Junij, the zeir of God 1555 zeires, be his Majesties umqhile dearest Gue-dame Marie Queene Dowrier, and Regent of this realme for the time: ane ordinance and act of Parliament was maid, anent the slauchter of parties in persute and desense of their actiones; quhilk act, althoucht in the selfe maist profitable and necessarie, to have bene ane perpetual law in all times thereafter, for repressing of proud and undauntoned braggares, boasters, and oppressours of their parties: Zit was the same only temporal, for the space of three zieres, after the making thereof; quhilk act, the said Advocate, in name, and for the causes foirsaidis, desired to be renewed and established in ane perpetual law in all times cumming, with the augmentations following. Upon the quhilk desire, our Soveraine Lord, willing to follow the gude example and intention of his predecessores, for the reverence and increase of justice, and assurance of the parties in persute and defence of their actiones, and executiones of the same, hes with advise of the saidis Lordis of his Councel and Session, ordained, decerned, and declared, that fra this day foorth, in all times cumming, gif it fall happen either the defender or persewer, to slay, or wound, to the effusion of blude, or utherways to invade any of them ane uther in ony sort, quhair upon they may be criminally accused, after the raising of summonds or precepts, and lawful execution theirof, or in ony time befoir the complete execution of the decreet to be given thereupon: The committer of the slauchter, blude, or invasion, in maner foresaid, or being airt, pairt, red or councel thereof; gif it be the defender, sall be condemned at the instance of the persewer; or in case of his decease, of the nearest of the kin of him quha is slaine, wounded to the effusion of his blude, or invaded, havand richt thereto, without ony probation of the libel persewed, except summar cognition to be tane of the slauchter, blude-sched, or invasion, before the Justice, or uther criminal Judge, competent thereto, be conviction, or beand fugitive and put to the horne. And gif the decreete be given, the same to be unreduceable for ever. And gif the persewer slay, wound to the effusion of blude, or invade the defender, as it is above written, or be airt, pairt, red or councel thereof, cognition being tane, as said is; in that case the defender, or in case of his decease, the nearest of his kin, able to succeede in that richt, sall heve absolvitour fra the libel of the persewer simpliciter, against the quhilk the persewer, nor na uther be his richt, sall ever be heard be way of reduction or restitution in integrum, in ony time thereafter, quhat age, condition, or qualitie that ever the slayer, drawer of the blude, or invader foresaid be of: The proces of transferring in the causes above-written respective, to be upon ane fifteene dayes warning, but diet, table, or continuation of utheris summondes. And gif the slayer, schedder of blude, or invader, as said is, hes landes or liferentes, and beis denunced rebel, and put to the horne, for non-finding of sovertie, or non-comperance to underly the law, for the said slauchter, blude-sched, or invasion; in that case the slayer, schedder of blude, or invader, incontinent after the denunciation, sall tyne the lyferent of his landes, benefice, office, and utheris rentes, and commodities quhatsumever for his lyfetime, without ony farder delay of zeir and day, as in uther causes of tinsel of lyferentes, through being zeir and day at the horne.
Attour our Soveraine Lord, be the faith and duetie of ane Christiane Prince, promisis to give na respett, nor remission to the offendares in fik causes. And gif his Majestie or his successours dois in the contrare, (as is not beleeved) the using of the said respett, or remission be ony of the parties, persewer, or defender, sall be the like cause, and of the samin effect, as their conviction, for the cause abone specified. And this act and ordinance to indure for the space of seven zeirs immediatlie heirafter; and to be confirmed in his Hienes nixt Parliament, to have the strength and effect of ane act theirof, and to be observed as an perpetual law, in time cumming.
Acts of Parliament, v. 1. p. 485.
*** In the Fourteenth Parliament of King James VI. chap. 219. anno 1594.
His majesty, having consideration of the manifold oppressiones done within this realme, and for the maist parte occurring betuixt parties contending in justice, be proud and undantoned braggers, boasters and oppressoures: And understanding that there was ane acte of Parliament maid of lang time by past; first in the dayes of unquhill Marie, Queene Dowager, his Hienesse Gud-dame, of worthy memory, quhilk was only temporall, for the space of three zeires nixt following, and approven be his Hienesse in his Parliament halden at Edinburgh, in the moneth of Maij, ane thousand five hundreth four score four zeires; quairby it was found and declared, that if ony person, ather persewer or defender, suld happen to slay or wound to the effusion of blood, or otherwise to invade ane of them ane uther in ony sorte, quhairupon they micht be oriminally accused, after the raising of the summondes and precepts, and lauchfull execution thereof, or in ony time before the compleit execution to be recovered thereupon: The committer of the slaughter, bloud or invasion, in maner foresaid, or being airt, pairt, red or councell thereof; gif it be the defender, he sall be condemned at the instance of the persewer, gif he be on life; or in case of his decase, the nearest of his kinne, quha is slaine, without ony probation of the libel, except summar cognition to be tane of the slaughter, blood shed or invasion, before the Justice, or ony uther judge competent thereto: And gif the persewer slayis, woundis or invadis the defender, as said is, or be art, pairt, red or councell thereof, cognition being tane, in case the defender be on live, or in case of his decease, the nearest of kinne, sall have absolvitour fra the persewer's libell: And gif the slayer, shedder of bloud, or invader, as said is, hes landes or liferentes, and beis denunced rebell, and put to the horne, for none-finding of soverty, or none-compearance, to underly the law for the said slauchter, blood-shed, or invasion; in that case, the slayer, shedder of blood, or invader, incontinent after the denunciation, sal tine the benefite of his liferent, of quhatsumever his landes, offices or commodities, as in the saids actes and statutes thereupon, at mair length is conteined; quhilk last act was also temporall, to indure for the space of seven zeires: And now it being knawen to his Hienesse, and the said Estaites, how necessar the samine is, to be always observed and keeped in continual observance, as ane universal law in all time cumming, for repressing of the saids invasiones; therefore his Hienesse, with advise of the estaites, and haill body of this present Parliament, ratifies, apprievis, and affirmis baith the saids first and second actes, with the haill poyntes, articles, and conditiones conteined thereintill, and ordainis the same to stand as ane perpetuall law in all time cumming.
Acts of Parliament, v. 1. p. 703.
John Annand v. John Ross
Date: 4 March 1790 Case No. No 16.
The defender, in a process of battery, pendente lite, having become bankrupt, his creditors insisted that their interest in the original action ought not thereby to be prejudiced. The Court would not listen to this plea.
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Annand having sued Ross in an action of oppression and damages, the defender, while it was in dependence, meeting the pursuer, struck him several blows on the face. Upon this, Annand raised a process of battery pendente lite, concluding against Ross on the statute of 1594, that decree should be given according to the terms of the original libel.
The topics insisted on were in substance the same as were urged in the case of Fowler contra Gillespie, supra.
But Ross having become bankrupt appearance was also made for his creditors, who stated, that they had a material interest in the question, as this penal statute, if found to be still in force, would operate against them, and deprive them of all fund of payment of their debts. If the statute is still in force, it ought at least to be limited to its own purpose, which was the punishment of the offending party; but it would be injustice to allow it to affect the rights of third parties, who have committed no offence.
In every competition among creditors, any individual creditor is entitled to scrutinize the grounds of the debts of all those who compete with him, and by whose preference his own fund of payment may be diminished. In the present case, the creditors consider themselves as entitled to examine and canvass the, grounds of the original action, in which, if the pursuer prevail, their fund of payment is diminished; in the same manner as they would be entitled to object to the constitution of any debt of a competing creditor.
It is no sufficient answer to them, that, by the operation of a certain penal statute, this debt is constituted against the common debtor. They have no concern with that penal statute, whose operation must be confined to the offender himself. The law might have judged it expedient to punish masterful oppression, by decreeing that the oppressor should lose his suit; but it could never judge it expedient, that in a competition of creditors, false debts should be sustained to the prejudice of true; or, what is the same thing, that no investigation should be allowed, whether the debts are true or false.
The Court, however, allowed a proof of the battery.
Act. M. Ross.Alt. Fraser Tytler.
Fol. Dic. v. 3. p. 70. Fac. Col. No 125. p. 242.
*** In an incidental question which occurred in the cause Caddel against Morthland, &c. voce Reparation, the Court again held the laws relative to Battery pendente lite, to be in observance.
