Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

The Earl of Wintoun
v.
Mr William Hay of Drumelzier, and James Finlay, his Groom.

Date: 17 June 1714

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George, Earl of Wintoun, raised an action of deforcement ad civilem effectum, for damages against Mr. William Hay of Drumelzier, and James Finlay, his servant; libelling upon the acts of Parliament touching that crime; and subsuming that the defenders were guilty thereof, in so far as the said James Finlay being legally apprehended by James Calder, messenger at Whittingham, upon letters of second diligence or caption, for his not compearing to depone as a witness in a process at the Earl's instance against the said Drumelzier and others, and Finlay having desired the liberty to acquaint his master therewith, and they having gone along with him to Drumelzier's chamber, he in a threatening manner said, that he would not let his servant go along with the messenger; who, endeavouring to take his prisoner along with him, when they were near the close, the said James Finlay and Drumelzier's other servants fell upon the messenger, and did beat and bruise him, and thereby rescued Finlay out of his hands ; upon which the messenger broke his wand of peace, and protested that Drumelzier, Finlay, and others, assisting to the deforcement, should be liable to the pains of law.

Answered for Drumelzier,—1. Though it should be proven that he said he would not let the prisoner go, that is not relevant to infer a deforcement against him; because he being up stairs in his own chamber, it is not insinuated, that during the whole time, Drumelzier did so much as look out at the window, or in the least encourage or influence his servants to the facts libelled. And the words libelled might admit of a favourable construction in the present case, where the execution of deforcement bears, that a bond of presentation was offered. So that the words could not bear the sense of a simple and absolute refusal, but only qualified, that he would not let his servant go with the messenger, because he had offered an equivalent, viz. a bond of presentation which secured the interest of all parties concerned ; for as all the effect of the letters of second diligence was only to keep the witness in custody till he should depone; and being in the vacation time, Drumelzier could not want the use of his servant for three months. So the civil conclusion of this action being only reparation of damages, none can be qualified here, because Finlay did depone in obedience to the will of the letters. 2. The only medium concludendi against Drumelzier, being nuda emissio verborum, the same cannot be proved by witnesses.

Replied for the pursuer,—All being peaceable when the messenger entered upon the execution of his office, and the prisoner taken without the least resistance; so soon as Drumelzier declared that the prisoner should not go along with the messenger, the servants of the family set about executing his will, and rescued the prisoner. So that here, as in all other criminal cases, initium nogotii est inspiciendum; and it has always been sustained as a qualification of assistance, art and part, where a person having power to hinder or forbid the commission of a crime, being present, is silent, and does nothing to the hindrance of it; qui non prohibet cum, prohibere potest, fecisse videtur. So, 23d February 1667, L. Rentoun against Lamertoun, a person was found liable for the value of certain woods that his father was present at the cutting of, although he neither cut himself nor gave orders for it. And in a late case in the Justiciary Court, at the instance of the Procurator for the church against Dugud and others, a magistrate's being present at the resisting of a minister's preaching in Bruntisland, and not forbidding, or using his endeavours to quell the mob, was found a sufficient ground of ditty against him. Now Drumelzier's power in his own family or his servants, is at least equal to that of the civil magistrate. Again, after the deforcement and the prisoner's escape, Drumelzier kept these persons in his service; which being conjoined with the former threat that the prisoner should not go, and his not interposing to hinder the riot and escape, is a manifest indicium of his being assistant art and part in all this matter ; and ought to be sustained, where the conclusion is only ad pænam pecuniariam. And though the offer of a bond of presentation might have been a reason of suspension, it can never defend against the deforcement: for there was no warrant in the letters to accept of any such bond, but only to incarcerate. Nor can any man stop execution upon pretence of injustice, which can easily be redressed by suspension or otherwise ; seeing private persons are not to be judges in their own cases et non est singulis concedendum quod per magistratum fieri debet. 2. Nothing is more known in law than that in cases of a criminal nature, emission of words is probable by witnesses. So, 18th February, 1672, a messenger, citing the Earl of Nithsdale, at the instance of some of his feuars, being beat by the Earl's servants ; the libel of command, Ratihabition, and direction, was sustained against the Earl even when he himself was not present. And if it were not so, the greatest villany might be committed impune, by command and hounding out; since it is not ordinary to give writ in such cases, where a great deal of caution and secrecy is used.

The Lords found the libel of deforcement against Drumelzier not relevant, and therefore assoilyied him.

MS. page 61.