Scottish Court of Session Decisions

Subject_1 BATTERY.
Subject_2 *** In the Eighth Parliament of King James VI. chap. 138. anno 1584.

His majesty, with advise and consent of his Hienes three Estaits of this present Parliament, hes ratified and appreived, and be the tenour hereof, ratifies and appreivis the act and statute under-written: and decernis and declairis the same, to have strength, force and effect of ane act of Parliament, of the quhilk the tenour followis. - At Edinburgh, the penult day of Maij, the zeir of God, ane thousand five hundreth four scoir three zeires. The quhilk day, in presence of the Kingis Majestie, sittand in judgement, and Lordes of his Hienes Councel and Session, compeired Maister David Makgil of Nisbet, Advocate to his Majestie, and in the name of his Hienes maist faithful, humble, and obedient subjectes, exponed and declared, how in the Parliament halden at Edinburgh, the xx. day of Junij, the zeir of God 1555 zeires, be his Majesties umqhile dearest Gue-dame Marie Queene Dowrier, and Regent of this realme for the time: ane ordinance and act of Parliament was maid, anent the slauchter of parties in persute and desense of their actiones; quhilk act, althoucht in the selfe maist profitable and necessarie, to have bene ane perpetual law in all times thereafter, for repressing of proud and undauntoned braggares, boasters, and oppressours of their parties: Zit was the same only temporal, for the space of three zieres, after the making thereof; quhilk act, the said Advocate, in name, and for the causes foirsaidis, desired to be renewed and established in ane perpetual law in all times cumming, with the augmentations following. Upon the quhilk desire, our Soveraine Lord, willing to follow the gude example and intention of his predecessores, for the reverence and increase of justice, and assurance of the parties in persute and defence of their actiones, and executiones of the same, hes with advise of the saidis Lordis of his Councel and Session, ordained, decerned, and declared, that fra this day foorth, in all times cumming, gif it fall happen either the defender or persewer, to slay, or wound, to the effusion of blude, or utherways to invade any of them ane uther in ony sort, quhair upon they may be criminally accused, after the raising of summonds or precepts, and lawful execution theirof, or in ony time befoir the complete execution of the decreet to be given thereupon: The committer of the slauchter, blude, or invasion, in maner foresaid, or being airt, pairt, red or councel thereof; gif it be the defender, sall be condemned at the instance of the persewer; or in case of his decease, of the nearest of the kin of him quha is slaine, wounded to the effusion of his blude, or invaded, havand richt thereto, without ony probation of the libel persewed, except summar cognition to be tane of the slauchter, blude-sched, or invasion, before the Justice, or uther criminal Judge, competent thereto, be conviction, or beand fugitive and put to the horne. And gif the decreete be given, the same to be unreduceable for ever. And gif the persewer slay, wound to the effusion of blude, or invade the defender, as it is above written, or be airt, pairt, red or councel thereof, cognition being tane, as said is; in that case the defender, or in case of his decease, the nearest of his kin, able to succeede in that richt, sall heve absolvitour fra the libel of the persewer simpliciter, against the quhilk the persewer, nor na uther be his richt, sall ever be heard be way of reduction or restitution in integrum, in ony time thereafter, quhat age, condition, or qualitie that ever the slayer, drawer of the blude, or invader foresaid be of: The proces of transferring in the causes above-written respective, to be upon ane fifteene dayes warning, but diet, table, or continuation of utheris summondes. And gif the slayer, schedder of blude, or invader, as said is, hes landes or liferentes, and beis denunced rebel, and put to the horne, for non-finding of sovertie, or non-comperance to underly the law, for the said slauchter, blude-sched, or invasion; in that case the slayer, schedder of blude, or invader, incontinent after the denunciation, sall tyne the lyferent of his landes, benefice, office, and utheris rentes, and commodities quhatsumever for his lyfetime, without ony farder delay of zeir and day, as in uther causes of tinsel of lyferentes, through being zeir and day at the horne.

Attour our Soveraine Lord, be the faith and duetie of ane Christiane Prince, promisis to give na respett, nor remission to the offendares in fik causes. And gif his Majestie or his successours dois in the contrare, (as is not beleeved) the using of the said respett, or remission be ony of the parties, persewer, or defender, sall be the like cause, and of the samin effect, as their conviction, for the cause abone specified. And this act and ordinance to indure for the space of seven zeirs immediatlie heirafter; and to be confirmed in his Hienes nixt Parliament, to have the strength and effect of ane act theirof, and to be observed as an perpetual law, in time cumming.

Acts of Parliament, v. 1. p. 485.

*** In the Fourteenth Parliament of King James VI. chap. 219. anno 1594.

His majesty, having consideration of the manifold oppressiones done within this realme, and for the maist parte occurring betuixt parties contending in justice, be proud and undantoned braggers, boasters and oppressoures: And understanding that there was ane acte of Parliament maid of lang time by past; first in the dayes of unquhill Marie, Queene Dowager, his Hienesse Gud-dame, of worthy memory, quhilk was only temporall, for the space of three zeires nixt following, and approven be his Hienesse in his Parliament halden at Edinburgh, in the moneth of Maij, ane thousand five hundreth four score four zeires; quairby it was found and declared, that if ony person, ather persewer or defender, suld happen to slay or wound to the effusion of blood, or otherwise to invade ane of them ane uther in ony sorte, quhairupon they micht be oriminally accused, after the raising of the summondes and precepts, and lauchfull execution thereof, or in ony time before the compleit execution to be recovered thereupon: The committer of the slaughter, bloud or invasion, in maner foresaid, or being airt, pairt, red or councell thereof; gif it be the defender, he sall be condemned at the instance of the persewer, gif he be on life; or in case of his decase, the nearest of his kinne, quha is slaine, without ony probation of the libel, except summar cognition to be tane of the slaughter, blood shed or invasion, before the Justice, or ony uther judge competent thereto: And gif the persewer slayis, woundis or invadis the defender, as said is, or be art, pairt, red or councell thereof, cognition being tane, in case the defender be on live, or in case of his decease, the nearest of kinne, sall have absolvitour fra the persewer's libell: And gif the slayer, shedder of bloud, or invader, as said is, hes landes or liferentes, and beis denunced rebell, and put to the horne, for none-finding of soverty, or none-compearance, to underly the law for the said slauchter, blood-shed, or invasion; in that case, the slayer, shedder of blood, or invader, incontinent after the denunciation, sal tine the benefite of his liferent, of quhatsumever his landes, offices or commodities, as in the saids actes and statutes thereupon, at mair length is conteined; quhilk last act was also temporall, to indure for the space of seven zeires: And now it being knawen to his Hienesse, and the said Estaites, how necessar the samine is, to be always observed and keeped in continual observance, as ane universal law in all time cumming, for repressing of the saids invasiones; therefore his Hienesse, with advise of the estaites, and haill body of this present Parliament, ratifies, apprievis, and affirmis baith the saids first and second actes, with the haill poyntes, articles, and conditiones conteined thereintill, and ordainis the same to stand as ane perpetuall law in all time cumming.

Acts of Parliament, v. 1. p. 703.

Alexander Kennedy
v.
John Herbertson

Date: 7 July 1724
Case No. No 12.

A quarrel at play, and a scuffle having happened, between the parties in a cause; the pursuer seemed to have been rather the aggressor, and the defender had been hurt in a very flight degree.

They were reconciled next day. But the Lords found that this did not take off the effect of the battery; and they assoilzied the defender.

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Kennedy having charged Herbertson to make payment of the contents of a bill due to him, Herbertson suspended; and whilst the process was depending, there happened a difference betwixt the charger and suspender; upon which a complaint was made to the Lords by Herbertson, setting forth, That, during the dependence of the plea, he had been invaded and wounded by the charger; and therefore craved, that, upon a proof's being adduced, he might be assoilzied from the process, in terms of the 219th act, Parl. 14. Ja. VI. A conjunct proof being allowed; at advising thereof, it was pleaded for the charger, 1st, That in this case there was no such actual invasion as the law requires; it was indeed proved by two witnesses, who were in company at the time, that Kennedy, upon ill usage from Herbertson, drew his sword, and demanded gentlemany satisfaction; but then they both depone, that they did not fee Mr Kennedy either push or strike at Mr Herbertson with it; and though their depositions likewise bear, that after the scuffle was over, they observed a scratch and a little blood upon Herbertson's finger, which they suspected might be by the sword, yet they were not positive of that; and indeed such a thing might have happened by many other accidents. There being then nothing else proved against Mr Kennedy, it can amount to no more than mere threats, which never have been sustained to infer battery.

2dly, Although there were a proof of an actual attack upon Mr Herbertson, yet the provocation given by him was sufficient, if not to justify, at least to excuse what was done, in so far as to free Mr Kennedy from the heavy penalty of the statute founded upon. It was proved, that a small difference arising at play, the complainer gave the charger very abusive language, calling him no less than scoundrel; upon which, it is said, Mr Kennedy drew his sword, which indeed he could hardly forbear, according to the way of the world upon such occasions.

3dly, Though Mr Kennedy's conduct should be found to fall under the compass of the statute, yet any injury done must be looked upon as taken away by a subsequent reconcilement, which was the case here, the parties having met the next day after the difference happened, and shaken hands together in token of friendship, upon Mr Kennedy's begging the complainer pardon; and they frequently afterwards conversed and drunk together as comrades, without the least appearance of any resentment.

It was answered for the complainer, 1st, That he had brought as full a proof as the nature of the thing could bear, of his being attacked and wounded by the charger to the effusion of his blood; and it does not import any thing, that the persons present in company did not see a thrust or stroke given him, since he had distinctly proved, that the charger had drawn his sword, and that immediately blood followed, without any other visible cause to which it could be imputed; for it is not to be expected, that, amidst confusion and surprise, every circumstance that happens can be observed by by-standers: And, besides what the two witnesses who were present at the scuffle depone, there was another who came in upon the noise, who says, that he saw blood upon the complainer's singer, and heard the charger fay, when in a passion, that he would serve him as he had served Mr Herbertson, which implied that he had wounded him. Another witness, who was mediator in the difference next day, depones, that the complainer shewed him, in presence of Mr Kennedy, the hurt in his finger, as a wound he had received from him, which at that time Mr Kennedy did not disown to have been given by him.

2dly, It was answered, That no verbal provocation can excuse such an outragious attack upon a man's person, so as to screen the invader from the penalty of the statute; neither was it distinctly proved, that the name of scoundrel was given by Mr Herbertson, before the attack was made upon him, that being only sworn to by one witness. The other witness does indeed speak of ill language given by Mr Herbertson to Mr Kennedy, but that, he says, happened when the scuffle was over.

3dly, As to the reconciliation, it was answered, That whatever was pretended of that kind, could not have the effect to take away the private interest of the party injured. It was acknowledged, that they were so far reconciled, as that they gave over thoughts of following out their resentment in a private way, and such a reconcilement might perhaps have some influence in criminal trials, though it is doubted if, even in these, it could have any weight where the injury was so atrocious; but it can never have the consequence to debar the party from an exception in law upon which he has right to crave, that the plea in dependence against him may be dismissed.

The Lords found the battery proven; and that the reconciliation, as proven, takes not off the effect thereof; and therefore assoilzied from the principal process.

Decisions cited for Herbertson: Maxwell contra Stewart, 20th January 1684, No 3. p. 1369.; Cruikshanks contra Gordon, 13th February 1679, No 2. p. 1368.

For Mr Kennedy: Forbes of Knapperny against Forbes of Tolquhon; where the Lords dismissed a complaint of this kind, the complainer's ill usage appearing to have been extorted by his bad language. This decision is not recorded.

Reporter, Lord Cullen. For Herbertson, Hay. Alt. Ja. Fergusson & Jo. Kennedy. Clerk, Murray. Fol. Dic. v. 3. p. 70. Edgar, p. 70.