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Scottish Court of Session Decisions >>
Lady-Leith-hall, and her Children, v Earl Fife, Donatar of Escheat. [1768] Mor 13904 (8 January 1768)
URL: http://www.bailii.org/scot/cases/ScotCS/1768/Mor3213904-005.html Cite as:
[1768] Mor 13904
Lady-Leith-hall, and her Children, v. Earl Fife, Donatar of Escheat
Date: 8 January 1768 Case No. No 5.
Nature of an assythment.
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John Leith of Leithhall was murdered on the street of Aberdeen, 22d December 1763, by James Abernethy of Mayen, who having made his escape, a criminal prosecution was brought against him. He having failed to appear was declared a fugitive and outlaw. A gift of his escheat was procured for behoof of his wife and children; but with this proviso, that it shall be without prejudice to a claim, of assythment by the wife and children of the deceased, if such claim be competent in law. An action was accordingly brought upon this claim, which was much controverted in the Court; and the doubtfulness arose from mixing the two senses of the word assythment, which occasioned much reasoning that was not applicable to the real case.
When the punishment of murder, or of any other crime, is inflicted, full satisfaction is understood to be given both to the public and to the private party concerned, after which no vergelt, or composition for slaughter, is due to the relations of the person slaughtered, such as would be due if the criminal were protected from punishment by the King's pardon. The King may pass from the atonement due to the public; but the private party concerned is entitled to have his resentment gratified, either by condign punishment, or by a composition, which in that case is stiled assythment. In the present case there can be no claim for such assythment, because Mayen, the criminal, has got no pardon; on the contrary, will suffer capital punishment if he be apprehended; and while this matter is uncertain, there can be no claim for assythment, for it would be absurd that a man should be liable to punishment even after paying a sum to free him from it.
But assythment, in a more general sense, means the reparation that is due to an innocent man who is hurt by a criminal act. In that sense, reparation, or assythment, is unquestionably due. If a man, who is culpable only, be liable in damages, what doubt can there be of his being liable when the damages are occasioned by his being guilty of a flagrant crime?
“The Court accordingly sustained the claim for assythment.”
