Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

The Earl of Nithsdale
v.
The Tenants of Duncan

Date: 16 February 1672

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In a removing, at the Earl's instance, against the tenants, it was alleged, That the Earl, by himself or his servants, at his direction, had invaded five of the defenders, who were commissioned by the rest to execute a summons of improbation, raised at their instance against the said Earl; and therefore, by an Act of the 8th Parliament, and by another of the 14th Parliament of King James VI. ratifying the same, making it a perpetual law, whereas the first was temporary, the Earl did lose all the interest that he had in these lands, and the defenders were secured from all real action at his instance hereafter.

It was replied, That the defence was only competent to those who were actually invaded; and, even as to those, order and direction is not relevant by the Act of Parliament, and, if it were, it is not probable but scripto vel juramento.

It was Duplied, That the Act of Parliament, bearing all invaders, art and part, or who gives red and counsel to be liable, it is sufficient to allege that the Earl gave order and direction, or that ratam habuit, by imprisoning one of those who were wounded; and the Act of Parliament ordaining, that such a crime should be summarily tried before the justice or other judges competent, where order and direction is probable by witness, that same manner of probation ought to be sustained here, otherwise the Act of Parliament might be elided; seeing it cannot be supposed that the giver of such an order would put it in writ, to be a ground of a dittay against himself; and the penalty being no less than the forefaulture of interest, it ought not to be referred to his own oath, who is committer of the crime.

The Lords did sustain the action, being founded upon order and direction; but, as to the manner of probation, they assigned a term to both parties before answer, for leading of witnesses, and to the defender for proving the direction and ratihabition, and to the pursuer for proving that he was absent the time of the invasion, and that the assaulting was upon a sudden occasion and misde meanour, so that he could not be thought accessory thereto; and for the ratihabition by imprisonment, that it was only until he should keep a regality court, like as the first lawful day he did liberate the person wounded, and gave sentence against the defender.

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