Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 JURISDICTION.
Subject_3 Criminal acts subject to the cognizance of criminal courts, ad civilem effectum.

Abraham Lesly
v.
Alicia Mackenzie

Date: 9 December 1785

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[Fac. Coll. IX. 374; Dict. 7422.]

Braxfield. Suppose that Lord Advocate should pursue ob vindictam publicam, and that the party should obtain the verdict of a jury in his favour, this will not be a bar to an action rei persecutoria. Besides, the private party, in support of his claims, might discover more evidence than was laid before the jury. The private party cannot be obliged to stop till the prosecution shall be carried on by Lord Advocate. It is also a maxim in law, that “no man, with whom I have no concern, can hurt me.” The civil law will not apply; because, in crimine publico, quilibet ex populo might pursue. Now the very reverse is the rule of our law. A cow, value five pounds, is taken from me. May I not pursue to recover the cow, or its value, in the civil court? or must I, first of all, lay out a hundred pounds in the criminal court, to pave the way for my recovering five pounds on the cow in a civil court? Every day, actions for recovering penalties on account of bribery are brought; but was it ever heard that a criminal process for punishing the bribery must be first brought? In the late case of Lady Erskine, though strenuously litigated, it was never pleaded that an accusation for bigamy ought to have been brought and determined before the civil action would be heard.

Swinton. The civil law in this case has been much misunderstood, particularly L. 4. D. De Except.

Eskgrove. I am now satisfied that the plea of Alicia M'Kenzie is ill-founded; and I approve of Lord Swinton's interpretation. See also L. in Cod. quando Civilis Actio, [1. 9. tit. 31,) and Perezius, ad Leg. Aquil. [1. 73. tit. 9.) The decision in Durie is altogether erroneous. In England action for damages on the head of adultery goes first, and the action for separation follows. As to assythment, it comes in place of punishment; and, if there is punishment, there is no assythment.

Rockville. It will be singular, should Abraham Lesley be debarred from asserting his right because he does not bring a criminal action, which he cannot bring.

President. Our predecessors were as wise as we are. This objection is contrary to all received opinions. I respect the civil law; but I will not haul it in to destroy our own institutions. The crime of incest is not triable in this Court; but every man may bring his civil action, and then a proof of incest may be produced, ad civilem effectum, or even a proof of something wrong and indecent. A jury cannot be moved by any thing found in this Court. Forgery may be tried ad civilem effectum, or by complaint for punishment. In the case of Steedman against Couper damages were decreed for adultery.

Monboddo. In the civil law there is a distinction between delicta privata and publica judicia. See Vinnius, pr. Inst. De Obligationibus quæ; ex Delicto. There are many privata delicta prosecuted criminally, as furtum. But publica crimina, such as incest, are of another nature. There no action for damage lies. A man cannot pursue for damages arising out of a murder, unless a trial for murder be first brought. Should this Court find incest proved, I hope that the Court is not so low in the opinion of the world as that such a judgment would have no weight with a jury. [He forgot that a jury, who must judge on the evidence before them, could not, without breach of oath, lay any weight on the judgment of the civil court.]

Justice-Clerk. A great deal of the argument here proceeds on a misapplication of terms. An action is sometimes of that nature that it cannot be tried in one court till the case has been heard before another. Thus, an action for aliment was brought by a woman against her supposed husband. The action for aliment was undoubtedly competent in this Court, yet the Court stopped until it should appear, by decree of the Commissaries, whether the woman was married. So also, in the case of The Magistrates of Elgin against Blair, the Court of Justiciary stopped till it should appear, by a decree of the Court of Session, whether the place of worship belonged to the magistrates or not. Our law does not make the same distinction of crimes that the civil law did. The issue from trial is different. One is for punishing crimes in the criminal court, and the other for recovering damages in the civil: so the one is not prejudicial to the other. If the Advocate should bring a person to trial for stealing my charter-chest, and should be able to prove the offence, will that preclude me from recovering it from the person accused in an action of exhibition? It is an abuse of law language to speak of a prejudice arising to a party in the criminal court, in consequence of a judgment pronounced by a civil court. Can it be said that a jury will be influenced, on that account, either for or against the party? At any rate, the civil law does uot apply, for the reason given by Lord Braxfield. It might have been wise in the Roman legislature to say, “As you have the right to bring both actions, you ought first to insist in the publicum judicium.” The same thing cannot be said in Scotland. As to assythment, that is a matter fixed by common law, and cannot apply to this case.

On the 9th December 1785, “The Lords, having heard parties in their own presence, repelled the objection.”

For Alicia M'Kenzie,—G. B. Hepburn.

Alt. R. Blair.

Diss. Monboddo.

N.B. This hearing was brought on in consequence of some doubts started by Lord Eskgrove and enforced by Lord Monboddo. But Lord Eskgrove, as soon as he had studied the point, declared himself satisfied that there was nothing in the objection: so Lord Monboddo was left single.