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Scottish Jury Court Reports
You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Henry v. Evans. [1820] ScotJCR 2_Murray_329 (26 June 1820)
URL: http://www.bailii.org/scot/cases/ScotJCR/1820/2_Murray_329.html
Cite as: [1820] ScotJCR 2_Murray_329
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SCOTTISH_HoL_JURY_COURT
Page: 329↓
(1820) 2 Murray 329
CASES TRIED IN THE JURY COURT.
No. 48.
v.
PRESENT,
Damages for assault.
Damages for assault.
Defence.—A denial of the statement; and a plea that, the defender's estate being sequestrated, the claim is incompetent.
“1 st, Whether, on or about the 4th day of January 1816, on the shore of Leith,
Page: 330↓
2 d, Whether the pursuer did first assault and strike or push the defender?
Damages laid at L.1000.”
Malice was objected to a witness, and he was examined in initialibus.
It was then stated that he had expressed a wish to ruin the defender, upon which the witness was withdrawn.
Proof of an assault upon the party not sufficient to disqualify a witness.
When the witness was again offered, Mr Jeffrey said, that he would prove that he had assaulted the defender in 1817.
Page: 331↓
(To the Jury.)—There are two questions here: Whether the defender assaulted the pursuer? or Whether the pursuer struck first? From the form of the Issue, the defender is put to prove his justification; but if you make up your minds on the first Issue, it decides the case.
You must attend to the very commencement of this case, and particularly to the clear, satisfactory, and strong evidence of the only witness who saw the first blow. You saw the witness; and it is one excellence of this mode of trial, that you see the witnesses. It is law that one witness is not sufficient; but when there are circumstances supporting that evidence, the Jury must consider it; and in this case I do not think there is any ground for the objection.
There is here no proof of justification; and you must take the whole facts into consideration; and in fixing the amount of damages, you must give them as compensation to the defender, not punishment of the pursuer.
Verdict for the pursuer, damages L.50.
Counsel:
J. A. Murray and
Cockburn for the Pursuer.
Jeffrey for the Defender.
Solicitors: (Agents, James Heriot, w. s. and John Thorburn.)
Page: 332↓
1821. Jan. 31.
LORDS CHIEF COMMISSIONER AND
Judgment entered up for the full sum found due by a verdict, not for the dividend due by the defender to his creditors, under a composition contract.
Jeffrey moves, that as the defender had entered into a composition contract, judgment should he entered up only for the dividend on the sum found by the verdict, and also on the expences. If this is not done, we have no opportunity of bringing the question under the consideration of the Court of Session, by Bill of Suspension.
J. A. Murray.—The bankrupt has no right to make this motion; he says he was discharged three years before the Issues were tried.
Lord Chief Commissioner.—There is a great deal in the objection, both on the general purview of the statute 59. Geo. III. c. 35. § 19. and the particular words, which are strong: viz. That the judgment shall be equally effectual as an extracted decree of the Court of Session, which goes to exclude a Bill of Suspension; and under this clause the judgment must be in terms of the verdict. This relieves us from going into the merits;
Page: 333↓