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Scottish Court of Session Decisions >>
Gilmour v The Procurator-fiscal of Linlithgow. [1738] Mor 3431 (25 July 1738)
URL: http://www.bailii.org/scot/cases/ScotCS/1738/Mor0803431-003.html Cite as:
[1738] Mor 3431
In what cases a Procurator Fiscal may Prosecute without Concourse of the Private Party.
Gilmour v. The Procurator-fiscal of Linlithgow
Date: 25 July 1738 Case No. No 3.
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Found, That a procurator-fiscal could not pursue ad vindictam publicam, notwithstanding the dissimulatio of the private party, the crime not having been of a public nature, and which required punishment ad vindictam publicam.
Fol. Dic. v. 1. p. 232. Kilkerran, (Delinquency) No 2. p. 156.*** Lord Kames reports the same case:
In a suspension of a decreet, obtained at the instance of a Procurator-fiscal, for a riot, notwithstanding of a disclamation made by a private party, the Lords made no doubt but that a Procurator-fiscal may pursue ad vindictam publicam, and were clear, there is no parallel betwixt the case of a Procurator-fiscal of a Commissary-court, in the case of scandal, and of a Procurator-fiscal suing for a breach of the peace; that dissimulatio, abstractedly considered, is not a good answer to a Procurator-fiscal pursuing ob vindictam publicam, seeing he may pursue both parties; but then, upon perusing the proof, they found, that this was but a drunken squabble, in which the public is very little concerned, and that it was officious in the Procurator-fiscal to intent a process in such a case, and therefore suspended the letters simpliciter.
