N\u00b0 99 \u00a0 \u00a0July 1767.<\/strong><\/p>\nMrs HARRIOT STUART, widow of John Leith of Leith Hall, and\u00a0John, Alexander, and James Leiths, their children, and their tutors for their interest,\u00a0AGAINST\u00a0JAMES Earl FIFE, donatar to the escheat of James Abernethy of\u00a0Mayen.<\/p>\n
Assythment\u00a0is cxigible from a person accuscd of murder, who has been outlawed for not appearing, and standing trial.<\/p>\n
ON the morning of 22d December 1763, John Leith of Leith-\u00a0hall was killed by James Abernethy of Mayen, who immediately made his escape, and \ufb02ed beyond seas. Criminal letters were\u00a0raised and pursued against Mr Abernethy, at the insance of the Ad-vocate, for his Majesty\u2019s interest, and of the widow and children of\u00a0the deceased, before the circuit-court held at Aberdeen on the 19th May following ; when Mr Abernathy failing to appear, ‘ sentence of\u00a0fugitation was pronounced again\ufb02 him. \u2019<\/p>\n
In pursuance of this sentence, letters of denunciation were issued,\u00a0which were regularly executed, and recorded, with the executions,\u00a0in the books of adjournal.<\/p>\n
A gift of Mr Abernethy\u2019s single and liferent escheat was granted\u00a0to James Earl Fife, expressly for the behoof of Mr Abernethy\u2019s widow and children, under the following proviso : \u201c That the said\u00a0\u201c gift hall be without prejudice to the right or claim which Mrs \u201cHarriot Leith, or her children, may have to an assythment, out of\u00a0the goods and estate of the said James Abernethy, for killing” the said John Leith, her husband, and their father.\u201d<\/p>\n
The widow and children of the deceased brought an action before\u00a0the court of petition againft Mr Abernethy, concluding for L. 4000\u00a0Sterling of assythment.<\/p>\n
Mr Abernethy appeared by counsel, and pleaded several defences. In bar of which the pursuers produced the sentence of fugitation, in\u00a0consequence of which they contended he had no persona standi in judicio<\/em>, and therefore could not be heard.<\/p>\nThe Lord Ordinary, upon advi\ufb01ng a memorial for the pursuers\u00a0on this point, pronounced the following interlocutor, 12th June 1765.<\/p>\n
\u201c In respect no objection is pleaded against the form and process of
\n\u201c denunciation, finds the said James Abernethy has no pcrsona stan-
\n\u201c di, and therefore is barred from pleading any defence in this ac-‘
\n\u201c tion; reserving to the donatar of his escheat, or others having in-
\n\u201c terest, to compear, and insist, that by the laws and practice of Scot-
\n\u201c land, an assythment does not take place, unless a pardon or re-
\n\u201c mission is produced and pleaded on; and ordains the pursuers to
\n\u201c give in a memorial upon that point, and to condescend on instan-
\n\u201c ces of assythment being found due where no pardon was obtained
\n\u201c or pleaded on.\u201d<\/p>\n
The pursuers preferred a representation against: this interlocutor ;\u00a0upon which the Lord Ordinary took the case to report, and ordered\u00a0the pursuers to give in a memorial.<\/p>\n
The Lords, Dec. 4.. 1765, \u201c sisted further procedure in this cause,\u00a0” until the purfuers make the officers of state, and the donators to\u00a0\u201c the escheat, parties therein.\u201d<\/p>\n
Upon this the pursuers brought an action against the officers of\u00a0state and the Earl Fife, concluding as that against Mr Abernethy\u00a0did. This was remitted to the other, and both again sent to the Ordinary; who, after a debate between the pursuers and the new party, again took the case to report, and ordered informations.<\/p>\n
The defender pleaded, That an assythment could only be claimed,when, by the interposition of the sovereign, the murderer has been\u00a0withdraw\u00a0from punishment; and the argument upon this point was\u00a0much the same with that in the preceding cafe. The defender argued too, upon this point, That Mr Campbell’s case, then independence by a reclaiming petition, was different from his: because in that case the murder was premeditated ; but all the accusation against the defender was, that in the madness of a drunken quarrel he had the misfortune to kill his companion and his friend idly. Had Mr Campbell been tried in the common course of law, he must\u00a0have been condemned to death; he escaped by the interposition of a\u00a0temporary court, authorised by the King: fo that the case was the\u00a0same as if he had escaped by the interposition of the King himself.\u00a03dly, In Mr Campbell’s cafe, the Lords seemed to be almost unani-mously of opinion, that an assythment could not be claimed either\u00a0when a capital punishment had been in\ufb02icted, or when the criminal\u00a0had not been brought to trial. Mr Campbell was brought to trial,\u00a0proof was brought of his guilt, and the sentence of the court-martial secures him from any after prosecution. But Mr Abernethy has\u00a0not been brought to trial; no proof of his guilt has been brought; nor\u00a0can the court take any; as thereby the witnesses that might be after-wards adduced before the criminal court, would be prejudicated.<\/p>\n
The defender further maintained, That to \ufb01nd assythment due in\u00a0this case would lead to many absurdities and inconsistencies. An assythment can only be claimed out of the effects of the murderer. Acourt of justice cannot proceed on supposition that a party has committed murder, without a clear proof; but none has been brought\u00a0of Mr Abernethy\u2019s guilt, and he does not confess it. No proof of it\u00a0can be taken in this case; because thereby the witnesses would be\u00a0prejudicated: and it would be incongruous to allow a proof of the\u00a0crime, which is the principal, in a process for an assythment, which\u00a0is but the accessory. Besides, if an assythment be found due, and if\u00a0afterwards Mr Abernethy shall be apprehended, and brought to trial,or shall voluntarily submit himself to trial, what inconsistencies may\u00a0ensue? If he be found not guilty, he must be absolved by the criminal court, though he has been condemned by the civil court. If\u00a0he\u00a0be found guilty, he must suffer death, though he has paid a sum\u00a0of money; which is unquestionably only due when the criminal escapes from capital punishment.<\/p>\n
There is no sufficient ground for presuming Mr Abennethy\u2019s guilt.\u00a0The squalor carceris<\/em>, the expence of a criminal trial, the want of evidence to prove the truth, and many other circumsances, may\u00a0\u00a0prompt the most innocent man rather to abscond than submit to\u00a0trial. Flight, therefore, ought not to be held a suf\ufb01cient presumption of guilt; Voet. Comm. ad tit. De probat. \u00a7 5<\/em>. The case of him who obtains a remission is very different; as it would be perfectly\u00a0absurd to accept a pardon for a crime which had not been committed.<\/p>\nAs to the sentence of fugitation, that proceeded not upon a presumption of his guilt, but \u201c for his contempt and disobedience <\/em>in not\u00a0\u201ccompearing.\u201d<\/p>\nThe answer on the general point was much the same with that for\u00a0Machargs in the preceding case. As to the particular circumstances\u00a0of this case, the pursuers argued, that Since acceptance of a remission before conviction is admitted to be such an acknowledgement of\u00a0guilt as Subjects the acceptor to an assythment, that shows, presumption without proof is sufficient; as also, that \ufb02ight ought to be held\u00a0a sufficient presumption; because there is surely less reason for believing him guilty who stays, and obtains a remission, than him who\u00a0will neither trust to the mercy of his sovereign, nor to the judgement of his peers upon a fair trial, but \ufb02ees, and suffers a sentence\u00a0of outlawry to be pronounced against him, the consequence of which\u00a0is, an absolute forfeiture of his moveable estate, and of his land\u00a0estate for his life. \u00a0The squalor carceris<\/em>, and all the other circumtances which the defender says may prompt an innocent man to\u00a0\ufb02ee, may prompt him also to apply for a remission.<\/p>\nBut if the court does not think presumptions sufficient, the pursuers are willing to undertake a proof of the murder; and this proof\u00a0is undoubtedly competent. See the argument in the preceding case.<\/p>\n
The inconveniencies to which fuch proof, it is laid, would give rise\u00a0are groundless and imaginary. No proof taken in this case can militate against: Mr Abernethy in a trial before the criminal court. As to\u00a0prejudicating the witnsses, if, by that phrase, the defender means,\u00a0that the witnesses may be twice examined, it is true; but what\u00a0bad consequence can arise therefrom is inconceivable. It. might as\u00a0well be argued, that witnesses ought not to be precognosced. Actions for reparation are every day sued in this court by persons injured.\u2019 upon facts which might be made the subject of a criminal prosecution at the Advocate\u2019s instance.<\/p>\n
July 29, 1767. The Lords, by a scrimp majority, found no assythment due.<\/p>\n
Upon a reclaiming petition and answers, the Lords found assythment due; and it was afterwards \ufb01xed at L. 200 Sterling.<\/p>\n
Act. Cosmo Gordon. \u00a0Alt. Ja. Ferguson.<\/p>\n","protected":false},"excerpt":{"rendered":"
\u00a0\u00a0 The life of John Leith III of Leith Hall is perhaps best remembered for the ballad of his early demise. This ballad composed by an old rhymester of the time can been read in the family book on pages 27-28 an in the book on Andrew Hay of Rannes, \u2018A Jacobite Exile,\u2019 where the […]<\/p>\n","protected":false},"author":1,"featured_media":474,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[35,34,30,31,29,36,28,32,3,33],"class_list":["post-468","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized","tag-and-decisions","tag-arguments","tag-auchluncart","tag-death-of-leith-hall","tag-harriot-stuart","tag-in-remarkable-cases-before-the-high-court-of-justiciary-and-other-supreme-courts-in-scotland-july-1767","tag-john-leith","tag-john-leiths-ballad","tag-leith-hall","tag-murder-of-john-leith"],"_links":{"self":[{"href":"http:\/\/leith-hay.org\/index.php?rest_route=\/wp\/v2\/posts\/468"}],"collection":[{"href":"http:\/\/leith-hay.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/leith-hay.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/leith-hay.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/leith-hay.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=468"}],"version-history":[{"count":19,"href":"http:\/\/leith-hay.org\/index.php?rest_route=\/wp\/v2\/posts\/468\/revisions"}],"predecessor-version":[{"id":1395,"href":"http:\/\/leith-hay.org\/index.php?rest_route=\/wp\/v2\/posts\/468\/revisions\/1395"}],"wp:featuredmedia":[{"embeddable":true,"href":"http:\/\/leith-hay.org\/index.php?rest_route=\/wp\/v2\/media\/474"}],"wp:attachment":[{"href":"http:\/\/leith-hay.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=468"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/leith-hay.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=468"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/leith-hay.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=468"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\u00a0\u00a0![\"J](\"http:\/\/leith-hay.org\/wp-content\/uploads\/2015\/02\/J-L-III.png\")
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