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Scottish Court of Session Decisions >>
Maxwell of Netheryett v Stewart of Sham-Belly. [1683] 3 Brn 450 (20 January 1683)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Brn030450-0669.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 20 January 1683
Maxwell of Netheryett v. Stewart of Sham-Belly
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Maxwell of Netheryett's probation against Stewart of Shambelly being advised; the Lords found Shambelly had contravened the 138th Act, Parl. 1584, in beating and invading Netheryett, during the dependance of the plea betwixt them, and so had lost the cause.
Notwithstanding it was alleged for Shambelly,—That the Act of Parliament meant only invasion to the effusion of blood; which was not here, but only a dry cuff. 2do, That it was only such hurting as might be the ground of a criminal process; which this was not. 3tio, Though it were, yet self-defence should excuse, he being provoked; and Netheryet being the aggressor, with a false caption, which he did of purpose to provoke, knowing Shambelly's passion; and so, ex suo dolo non debet lucrari. 4to, That there were several compensations already sustained, and other points decided in the cause, as to which Shambelly could not lose these but only the points standing yet undetermined.
All which the Lords repelled; and decerned against him in the whole cause, because they found the Acts of Parliament very strict.
