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Scottish Court of Session Decisions >>
William Alvis, Sheriff-depute of Dumfries, and John Lanrick, his Fiscal, v George Maxwell of Dalswinton. [1707] Mor 7403 (4 March 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Mor1807403-113.html Cite as:
[1707] Mor 7403
Causes in which the Court cannot judge in the first Instance.
William Alvis, Sheriff-depute of Dumfries, and John Lanrick, his Fiscal, v. George Maxwell of Dalswinton
Date: 4 March 1707 Case No. No 113.
The Lords are not judges competent to riots, batteries, or blood-wits, in the first instance.
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John Kelly, sheriff-officer, coming to Dalswinton's house to give him a citation to the sheriff-court, at the instance of one Maxwell, for payment of a civil debt, Dalswinton calling for his act of admission, and he answering, he had served many years in that office, and needed not carry it always about him, Dalswinton imprisoned him for some hours, and then convening his tenants, did publickly put him in the stocks; for which insolence and riot upon an apparitor and minister of justice, Dalswinton being cited before the sheriff. he procured an advocation to be passed and signed; whereupon Mr Alvis, as sheriff-depute, gave in a complaint to the Lords, representing the foresaid matter of fact, and how his sheriff-mair was insulted in the execution of his office and that processes for vindicating their jurisdiction, and securing their servants, and punishing insults against them, belonged to the sheriff in the first instance, as the King's ancient lieutenant for securing the peace and trsriutility of the country, and that the Lords could advocate no more such causes to themselves, than they can judge in criminal actions; and though he might have proceeded notwithstanding of the advocation, as being impetrated by mistake, yet he had that regard to the Lords' authority, that he sisted procedure, till he applied to their Lordships to recal the advocation as surreptitious and unwarrantable. Answered, That the said pretended sheriff-officer came into his chamber, and thrust open the door in a very rude and uncivil manner, and could shew no warrant or commission; so he had no reason to look upon him otherwise than as a fellow come to affront him. And the advocation being now passed, whether right or wrong, could not be summarily recalled, but discussed via ordinaria, by calling for it at the minute book, and getting it enrolled; the suspensions and advocations being now very far advanced in the outer-house. The Lords found they were not judges competent to riots, batteries, and bloodwits in the first instance, but only when they came in before them by suspension or reduction; and therefore recalled the advocation as illegal and irregular; and the stop being thus removed, allowed the sheriff to go on, reserving always to Dalswinton his remedy by suspension, if he thought himself wronged.
Fol. Dic. v. 1. p. 496. Fountainhall, v. 2. p. 354.
