Scottish Court of Session Decisions

Subject_1 LAWBURROWS.

Somerville
v.
-

Date: 6 February 1607
Case No. No 13.

Reconciliation found not to take away action of contravention, but that the party may pursue for an injury done, even before the reconciliation.

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John Somerville of Torbreks pursued——for contravention of lawburrows, fur violently putting of hand, and striking of the pursuer's wife and servants.—It was excepted, That John Somerville could have no action for contravention upon the said fact; because, since the committing thereof, the pursuer and defender were reconciled, whereby the said injury being remitted, the pursuer could never thereafter crave any reparation or amends for the same, or pursue action thereupon, quia injuriæ temporis lapsu, et dissimulatione tolluntur, multo magis expresso reconciliatione et remissione.—To this was answered, If a reconciliation was, the same proceeded upon the express command and desire of the minister of the parish, where both the parties dwelt at the very instant time when they were going to the communion, whereby, albeit the feud and quarrel was removed, yet the civil action was not taken away, unless he had renounced per expressum, which was neither done nor alleged; and it is of truth, that actions of contravention are competent upon many facts that are not grounds of quarrel, and among persons that are not at feud; and seeing the action was intented before the said alleged reconciliation, the same cannot take away the pursuer's action, and far less the King's interest, to whom right is acquired by the fact of the contravention, which, after the action is once intented, can never be taken away from the King's Majesty by any transaction, agreement, or other deed of the party; and the reconciliation may only be thought to take away of future grudge and quarrel, and not of the preceding action, and civil pecuniary pain.—To this was duplied, That their reconciliation was an express remitting and forgiving of the deed of contravention, which being remitted, the pain cannot be craved by the party; neither could the King have any action, when the interest of his informer was decided, because of our practique the party informer ante litem contestatam est dominus litis. Notwithstanding of which exception and duply the Lords found, That not only the King, but likewise his informer had good action. A case in some respects conform to this was dicided before, betwixt the Laird of Craigiehall and Kinninmound.

Fol. Dic. v. 1. p. 534. Haddington, MS. No 1289.