Series 1 > Records of the Proceedings of the Justiciary Court Edinburgh, 1661-1678 > Volume 2, 1669-1678

2
JUSTICIARY PROCEEDINGS
[DEC.
nature is infectious and mortall, whereas in Law Qui per tri
diem post vulnus illatum ambidaverit he is not presumed to
have died of that wound unless it be proven to have been of
its own nature mortall from the beginning, at least she having
gone about her ordinary employment for 40 or more days (as
indeed she did) its sufficient in Law to exculpate from the
crime of Murder, and the Pannell repeats and oppones his
exculpation.
Replys Sir Geo: Lockhart for the pursuer, the Defence
ought to be repelled and notwithstanding thereof the Pannell
should be put to the knowledge of an Assize in repect of the
terms of the Dittay wherein its positively lybelled that the
Pannell did inflict divers mortall wounds upon the Defunct,
and that she died of these wounds, and in fortification of the
Dittay its offered to be proven that the wounds were mortall
and lethall, and the Defunct having died shortly thereafter,
her death can be ascribed to no other cause, and as to the
pretence that the Defunct survived 40 days and more and did
the severall acts mentioned in the Defence of Exculpation, the
same ought to be repelled in respect it is lybelled and offered
to be proven that the wounds were of their own nature
mortall Quo casu if the Defunct thereafter died tho’ ex longo
intervallo the Defender tenetur de occiso et non de vulnere not¬
withstanding that she have adhibite no cure nor has committed
Acts of Intemperance whereby her death was accelerated.
Trial of Wm. And albeit in casu dubio wherein positive probation is offered
thTmurder oi as to the quality of the wounds, and that the same were
his Mother. offered to be proven presumptive from the ensuing circum¬
stances and events, there might be some weight laid upon the
length of time post vtdnus incussum et illatum and whereanent
there is some difference amongst the Lawyers, some extending
it to 40 days, some to a year, some to 2 years and some to 3
years, yet the most common opinion of Lawyers and most
consonant to Law and Reason is, that committendum estjudicis
arbitrio who is to perpend the same from the condition of the
party wounded and other concurring circumstances, and which
in the opinion of the Doctors does only amount to a pre¬
sumption and takes only place in casu dubio where there is
no positive probation offered as to the quality of the wounds