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11. Forms. Convictions and commitments are to be in the forms prescribed in the schedule annexed to the act."
12. Penalty. The penalty for breach of this act, or aiding, abetting, or assisting in such breach, is imprisonment simply, or with hard labor for any time not beyond three months.?
13. Appeal. The party convicted may appeal to the next General Sessions, or General Quarter Sessions, if he immediately enter into recognizances before the Justices committing, himself in L.10, with two sufficient sureties in L.10, to prosecute the appeal and abide the judgment,-execution of the sentence appealed from being, in the mean time, suspended."
The General, or General Quarter Sessions, are to hear and determine the case according to the act, and to award such expenses against either party as they think justwhich decision is final,—and, on the former judgment being affirmed, the appellant is forthwith to be committed in terms of it. 4
In all cases, whether appeal be lodged or not, the conviction drawn up, as prescribed by the act, is to be transmitted to the next General or General Quarter Sessions."
For the Forms under this act, See Appendix.
COMMISSION TO TAKE PROOF, &c.
Commission to take proofs being often granted by the Court of Session to Justices of Peace, the rules for the
I Hutches. iii. 7, § 9,
2 $ 3.
3 § 12.
4 $ 12.
guidance of such Commissioners, as laid down by Acts of Sederunt, are given in the appendix. See Appendix.
COMMITMENT FOR TRIAL.
1. When it may take Place. After the examination of an accused person, by taking his declaration, (See Declaration,) and of witnesses by precognition, (See Precognition,) if there be not reasonable grounds of suspicion against the above party, he is to be discharged, but if there be, he is to be committed for trial.”
2. How it is to be Ordered. Commitment for trial must (by act 1701, c. 6,) be ordered by a written and signed warrant,” shewing the particular cause of commitment,? (See Warrant,) and the accused must, immediately on his incarceration, be served with a copy of it under the hand of the messenger, or the keeper of the prison.
3. On what Grounds.
It must proceed upon a written and signed information, which may be in the shape of either a complaint, affidavit, or simple letter, if sufficiently explicit."
4. Release on Bail.
A person committed for trial for any crime not capital,
Hume, ii. chap. iii. pr. (ii. 82). Hutch. ii. c. iii. & 5, (i. 455.) 2 Hume, ii. c. iii. Art. 1, (ii. 82.) Hutch. ut sup. § 6, (i. 456, 7– 460, 1.)
3 Hume, ut sup. Art. 2, (ii. 83.) Hutch. ibid.
4 Hume, ibid. Hutch. ut sup. (i. 457–462.) In practice it is usual to make the warrant itself brief, but to refer in it to the information which is subjoined thereto. See Hume, ut sup.
5 Hume, ut sup. Art 3, (ii. 83, 4.) Hutch. ut sup. (i. 457.)
may obtain release on finding bail for his due appearance to answer the charge against him,' (See Bail;) but in capital cases the High Court of Justiciary alone can admit to bail.2
5. Release by Liberation Act. And if a person not released on bail shall, after demanding to be brought to trial, not be prosecuted within a certain period, he becomes entitled to liberation, under benefit of the act 1701, c. 6.3 See Liberation.
The division of commonties belongs to the jurisdiction of the Court of Session.4
But Justices of Peace may be commissioned by the Court to perambulate the place, and take all necessary proof, and to make a report, upon which the Court may determine.s
1. Definition. COMPENSATION is a statutory extinction of mutual coexistent claims of the same quality.
2. When it has Effect. Compensation does not take full effect ipso jure, but on
1 Hume, ii. c. iii. & 11, (ii. 85_-88.) Hutch. ii. c. iii. & 5, (i. 463, &c.) 2 Hume, ibid. (ii. 88, 9.) Hutch. ut sup. (i. 466.) 3 See Act 1701, c. 6, and Hume, ii. chap. iv. (ii. 96-114.) 4 Act. 1695, c. 38. Hutch. iv. 11, § 1, (ii. 521.) 5 Ibid.
Ibid. 6 Act 1592, c. 141, Ersk. Inst. iii. 4, § 11. Princ. iii. 4, § 5.
the finding of a judge, before whom it is pleaded as a defence against a claim ;' but the currency of interest stops from the concourse of the debts. 2
The parties mutually debtor and creditor, must be so in their own right.
They must stand in that relation to each other at the same time. 4
The debts must both be of the same quality.s
And must both be clearly ascertained by judicial decree, or by writ or oath of party. A short delay being usually allowed to have the grounds of compensation established.“
When and how Pleadable. Compensation must be pleaded before decree for that claim, which was sought to be met by this defence.”
A party holding several claims at once, may select which he chooses as the foundation for his plea of compensation.
But compensation cannot be sustained upon a debt which is prescribed before being pleaded, although it was good at the period of concourse with the opposite claim.o
1. Definition. CONSTABLES are the executive officers under Justices of the Peace.
1 Ersk. Inst. iii. 4, § 12. Princ. iii. 4, § 5.
Princ. ut sup.
2. How appointed not in Burghs. They are appointed half yearly by the Quarter Sessions. 1
Justices are directed by statute to choose at least two for each parish in the county.
And a sufficient number for large towns not having magistrates.)
4. In Royal Burghs. But in royal burghs, &c. Constables are selected by the magistrates.
5. Office Compulsory. Persons called upon and refusing to become Constables, and take the oath as such, may be fined and imprisoned by the Justices at their next sitting: 5
Duration of Service. Constables are ordered by the act to be changed every six months, (probably in contemplation of the office being taken compulsorily,) but in practice they are continued for any length of time in their situations which they have accepted voluntarily.
(For the powers and duties of Constables, See the excellent Treatise of Mr. Tait.)
CONTRACT (IN GENERAL.)
1. Definition. A Contract is any voluntary agreement between two or
1 Acts 1617, c. 8–1661, c. 38. Hutch. i. 8, § 2, (i. 203.)
sup. Hutch. ibid. (i. 203, 4.)
Hutch. ibid. (i. 203.)