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Scottish Court of Session Decisions >>
Bontein, or Creditors of Machar, v Bontein. [1731] Mor 14043 (00 January 1731)
URL: http://www.bailii.org/scot/cases/ScotCS/1731/Mor3214043-026.html Cite as:
[1731] Mor 14043
Effect in a civil action of a proof taken in the Court of Justiciary.
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In a civil action for reparation and damages, founded upon theft and robbery, for which crimes a sentence of banishment had formerly passed against the defender, the Lords allowed the extracts of the depositions taken before the Lords of Justiciary to be received per modum probationis in this process, but allowed the defender to give in objections against the proof.
1737. December 9.—And accordingly it being objected, That one of the witnesses was rendered infamous, since the date of his deposition, the same was sustained to invalidate the deposition; because such depositions being allowed ex nobile officio, only to save the trouble of examining the witnesses anew, every objection must be sustained against the depositions that would be relevant against the witnesses were they appearing personally to depone de novo.
1739. November.—In the same process it was afterwards pleaded, That the verdict of the inquest was a probatio probata, which could not be overturned by the Court of Session; that, by the sentence of the Court of Justiciary, the pannel was convicted of theft, and that damages were a necessary consequence. Answered, That the sentence of the Court of Justiciary is ultimate so far as it goes; but a sentence inflicting a penalty can be no rule with regard to damages upon which no judgment was given; and as for the verdict of the jury, it was authoratative in the criminal process, but in no other process, nor upon no other judge. The Lords found, That the verdict of the jury is not probatio probata, and that it is still competent to the creditors to object to the proof.
Fol. Dic. v. 2. p. 248.*** Kilkerran reports this case:
Where one had, by a sentence of the Circuit or Justice Court, upon a verdict finding the facts proved, been convicted of theft and banished, but no judgment had been given upon that part of the libel which included damage, an action being brought before the Court of Session for damages, founded upon the conviction by the Criminal Court, the Lords “Sustained the action, and found the sentence of the Criminal Court not to be a res judicata, to bar civil action for damages upon the same fact.”
At the same time the Lords allowed the proof led before the Criminal Court to be repeated in this process, but found that the said proof was not probatio probata, but that it was still competent to the creditors of the defender convicted (he himself was, as said is, banished, and no appearance for him) to object to the proof; for that however the sentence of the Criminal Court must have its effect so far as it goes, yet neither the comitas among the courts of different countries, nor the necessity which ties different courts within the same jurisdiction to regard the judgments of one another, can oblige one court to proceed farther than the other court has done, without being satisfied of the justice of the claim.
