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Scottish Court of Session Decisions >>
The Stewart of the Merse v L. Westnisbet. [1622] Mor 7299 (30 January 1622)
URL: http://www.bailii.org/scot/cases/ScotCS/1622/Mor1807299-010.html Cite as:
[1622] Mor 7299
The decree of an inferior judge for bloodwit was sustained on the party's confession, tho' without an inquest.
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In an action of double poinding, pursued at the instance of one Johnston in the Merse, who for blood committed by him, was convicted by the Laird of Westnisbet, heritor, and vassal to the King, of the lands within the which the blood was drawn, and the fact committed, albeit he was no Baron; and also the said Johnston was convicted by the Earl of Hume's Bailie, as Stewart of the Merse, for the same blood. The Lords, in respect of the prevention of the King's vassal, preferred him in the right of the unlaw, to the Stewart, albeit the vassal's, viz. Westnisbet's decreet was quarrelled by the party upon these nullities, viz. That the Laird of Westnisbet was no Baron, and so could not have right to blood-wits; 2do, That it was given only upon probation of the committer's confession, testified by the clerk's assertion, whose affirmation could not make faith without the party's subscription, in a matter of an hundred pounds contained in that sentence, being for two blood-wits, or that he might be bound by that assertion of that clerk, being a clerk of a base court, who had not the power of any common notary; and that any notary's assertion would not bind a party in such a sum; 3tio, That the pursuit being criminal, should have been determined by an assize, and could not have proceeded upon any other probation; 4to, That thereby no satisfaction was appointed to the party hurt. All which reasons and allegeances the Lords repelled, and sustained the decreet given by the Kind's vassal; but they modified ilk one of the two unlaws to twenty-seven pounds.
Act. Belshes.Alt. Henderson.Clerk, Hay.
Fol. Dic. v. 1. p. 493. Durie, p. 12.
