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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Procurator-Fiscal of Pearth v Dunbarnie and Johnston. [1680] 2 Brn 258 (30 June 1680) URL: http://www.bailii.org/scot/cases/ScotCS/1680/Brn020258-0534.html Cite as: [1680] 2 Brn 258 |
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[1680] 2 Brn 258
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.
Date: The Procurator-Fiscal of Pearth
v.
Dunbarnie and Johnston
30 June 1680 Click here to view a pdf copy of this documet : PDF Copy
The Procurator-fiscal of Pearth having pursued Dunbarnie and Johnston for blood-wits, they raised advocation upon this reason,—that the sheriff had unjustly repelled their defence, viz. That the bloods in question had been judged in Dunbarnie's bailie-court, before they were attached by the sheriff; Dunbarnie holding of the King cum bloodwitis.
It was answered, That this was but collusion to prevent the sheriff and the King of his casuality of blood, by bringing the cause before Dunbarnie's own bailie, constituted by himself, where he was both judge and party; and Johnston committed the blood out of Dunbarnie's bounds.
It was replied, That Dunbarnie, being pursued by the party injured, had no just defence to exclude process, because that was his own court; though, if he had been pursuer in some cases, the cause might have been advocated from him upon the influence of his bailie: for, though he has power to constitute a bailie, yet the bailie is the sole judge, and may determine either for or against his constituent. And as for Johnston, though he committed the blood without Dunbarnie's jurisdiction, and thereby became convenable ratione loci delicti; yet he remained also convenable ratione domicilii, at the option of the party injured; who having convened him before Dunbarnie's court, he was not convenable again before the sheriff.
The Lords found the sheriff committed iniquity in repelling either of these defences; and therefore did advocate the cause.
Vol. II, Page 780.
The electronic version of the text was provided by the Scottish Council of Law Reporting
