Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

James Leslie
v.
Patrick Comrie

Date: 21 December 1703

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James Leslie, writer in Edinburgh, gave in a complaint against Patrick Comrie, factor to Campbell of Lawers's estate, bearing, That he being agent for Lawers, and reasoning with Patrick about his client's business, Patrick did beat him in the face in the Outer-House, in presence of sundry advocates, while the Lords were sitting determining causes; and so was guilty by the 173d Act 1593, discharging any to invade another, while the Lords are sitting, under the pain of death,—the injury receiving an aggravating, atrocious circumstance from the place where it is perpetrated; and, therefore, craving a warrant to apprehend him; which the Lords granted. But sundry questions arose on this case; 1mo, If the said Act founded on was truly an Act of Parliament, seeing it mentions only the King and Lords of the Articles in the narrative, who have no statutory power alone, without the concourse of the three estates. But this was only thought to be a specialty in the style; and it has ever since been esteemed as an Act of Parliament, and founded on as such. 2do, If the beating of a party's agent in a depending plea, by the other's agent, will fall under the compass of the Act of Parliament, making the certification of beating one another pendente lite to be the loss of the cause on the invader's part? But there seemed to be no reason for such an extension in a penal statute, which precisely relates to the parties themselves only, and not their doers. See the case of the Tenants of Duncow against the Earl of Nithsdale, in Stair, 18th February 1672, on the 219th Act of Parliament, 1594.

3tio, It was questioned how far the Lords could judge this case, being capital.

Some affirmed, that if one party assault another in presence of the Lords sitting in judgment, they may cognosce it, though the punishment to be inflicted by law be no less than the pain of death; because a sovereign court has that jurisdiction inherent to vindicate their own authority, and punish any affront or injury offered thereto.

It was argued by others, that, no doubt, the Lords had mixtum et merum imperium to make their jurisdiction effectual, where the punishment was either pecuniary or corporal, below death; but if the crime was capital by law, all they could do was to secure the delinquent, and remit him to the criminal court, where he must be tried by an assize; which the Lords cannot do: and this is clear in the case of falsehood, which the Lords cognosce either in the direct or indirect manner; and when they have found it proven, they remit it to the Justiciary, where the decreet of improbation is probatio probata to the assize; but the Criminal Court must condemn him, and so the foresaid Act ordains it to be criminally tried. And by a decision in Dury, 14th July 1638, Dumbar against Dumbar, the Lords found, where the punishment to be inflicted is arbitrary, they may impose it themselves; but, if it be capital, they can only remit it to the justices, as the sole judges competent thereto.

Mr Comrie procuring a remission from the Queen, it came, in the fourth place, to be questioned, how far that could liberate him from giving satisfaction to the party by a palinodia, and acknowledgment of his fault, and craving him pardon.

Vol. II. Page 203.