Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

James Gibsone
v.
the High Constable

1673. July.

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One James Gibsone, a baxter in Plaisance, having been fined for a pretended riot in eightscore pounds in the Constable Court, during the sitting of the Parliament in August 1672; he suspended the same upon thir reasons. 1mo, That being constable of that bounds, he was in excercitio officii et actus maxime liciti; and being opposed by a drunken wife, to put in a poor person, who was dying, into a house, he put her by, and she fell over, and that this was all the riot. 2do, Upon the sense of his innocence, he had obtained a discharge of the said decreet and fine from Mr John Hay and Mr Alexander Seaton of Pitmedden, the two constable deputes; and opponed the same.

Replied,—That the High Constable Court seemed to be sovereign the time of Parliament, and it was res mali exempli to have their decreets canvassed or questioned by the Lords. However, to the first, they opponed the decreet. As to the second, the discharge was null, because granted by those who had no power, seeing after they had pronounced sentence they were functi officio; and by the commission of deputation they had no right to the fines or emoluments of courts, likeas the deputes in other courts had not the amerciaments, but they belonged to their constituents; and here my Lord Erroll had since their discharge assigned this same very fine to James Hay, clerk to that court.

Duplied,—Per l.37, D. de R. Juris,—Qui condemnare potest, potest etiam absolvere; and this upon the matter was an absolvitor more than a discharge; that they had no other salary but the fines, and so might dispose upon them; that my Lord Erroll's assignation was truly posterior to the discharge, but is antedated; and that judges might discharge thir obventions as appertaining to themselves, was clearly decided by the Lords, as Dury remarks, on the 26th of November 1633, Lindsay.

Only it was not decided here, because the matter being referred to my Lord Craigie, he called for the probation which was the ground of the decreet, and when he heard nothing proven, he with indignation rejected it. And, really, there was much cause of complaint given to the citizens of the town against that court, not only for being so summary and illegal, but also for their exorbitancy and oppression in their fines. And though the town has ever contraverted this privilege with the High Constable, so that he never possessed any jurisdiction within Edinburgh, peaceably and pleasantly, yet he gained a greater step that session 1672 than ever he could arrive at before, by judging Johnston, the fiddler, and sentencing him to death for killing of his wife; whereas, in so long a tract of time as the ages since he laid claim to that privilege, he could never afford one instance save of one. I believe it was one Reid, a painter, for killing one Allan Walwood, servant to my Lord Cranstonriddell, whom, for slaughter, they had sentenced to die about the year 1640, but he obtained a remission.—See it in the Criminal Register.

Advocates' MS. No. 412, folio 222.