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Scottish Court of Session Decisions >>
George Deniston v Thomas Smith, Merchant. [1698] 4 Brn 426 (29 December 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Brn040426-0847.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
George Deniston v. Thomas Smith, Merchant
Date: 29 December 1698
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There were mutual complaints betwixt George Deniston, writer, and Thomas Smith, merchant, wherein George complained, that the other had beat him publicly at the Cross of Edinburgh, for no other cause but that he agented a process for a poor woman against him.
Smith alleged, 1mo. This scuffle is pretended to have been done three years ago, and so is prescribed dissimulatione, when tales injuri? statim ad animum non revocantur. 2do. It is already judged by the bailies; and he was fined in £50.
Answered,—Our law knew no such prescriptions of riots as three years if not pursued within that time. To the second,—The magistrates interposing by their procurator-fiscal was only collusive; and, esto this satisfied the vindicta publica, yet there being nothing decerned for his vindication and reparation, it neither absorbed nor cutted off his process ad vindictam privatam; likeas, by the 38th Act Parliament l66l, anent Justices of the Peace, it is declared, if the delinquent be not punished answerable to the offence and wrong sustained, then the party may complain to get him more condignly punished.
The Lords repelled the defences, in respect of the answers; and found, notwithstanding it was not de recenti, and that it was judged by the bailies, yet neither of these took away his private interest to complain and seek redress.
