Page images


1. Signification. DAMAGES signify the reparation of loss, and the solatium for injury caused to one person by another, through crime, neglect of duty, or breach of contract.”

A claim for damages is itself of a civil nature, even · when founded on delict. %

2. Competency of Justices. Hence Justices of Peace are competent to try such cases only under the Small Debt Act; or where they are empowered by special statute; or sometimes where damages are demanded along with public punishment.

3. Extent of Damages. In case of delict, the pursuer's oath, in litem, under limitation by the judge, proves the extent of his loss ;; and estimates of the amount of injury sustained are not to be limited to mere market prices.*

In case of neglect of duty or breach of contract, the amount of proved loss is the measure of the damages."

But under loss is included all consequent outlay, and the expenses of justice.

4. Liability for Damage. A master is liable for injury sustained through fault of his servant, acting in obedience to his orders, or in business confided to the latter. 7

1 Ersk. Inst. iii. 1, § 14—3, § 86. Stair, i. 6, § 2.

Hutch. i. 5, § 4. (i. 182—3.)

2 Ersk Inst. iii. 1, § 15. 3 Ersk. Inst. iv. 2, § 18. Princ. iv. 2, § 10. 4 Ersk, ut sup. § 14. 5 Ersk. Inst. iii. 3, § 86.

6 Ibid. 7 Drummond or Brown and Children v. M'Gregor and others, 26th February 1813. Linwood and Children v. Hathorn and others, 14th May 1817.


1. Meaning AFTER arrest, a prisoner ought, in general, to be carried as soon as possible before a Justice, or other magistrate, for examination. 1

The statement then made by the prisoner is termed his Declaration, and forms an article of evidence which may be brought against him upon his trial.2

2. Effect of Declaration. If the Justice be satisfied, from the prisoner's examination, that there is no ground for detaining him, he should forthwith set him at liberty.5 See Liberation.

But if he be not satisfied with the account given by the accused, he may commit him for further examination.* See Precognition.

3. Mode of Examining. The magistrate himself ought to conduct the examination.5

It is requisite that the prisoner be at the time sober and of sound mind; and that he emit his Declaration of his free will, without influence of either threats or promises. 6

The magistrate ought to put the prisoner upon his guard, by informing him, that whatever he shall state may be

1 Hume, ii. chap. ii. & 11, Art. 3, (ii. 77, 8.) Hutch. B. ii. c. iii. & 4, (i. 450.)

2 Hume, ii. c. xii, g 1). (ii. 316–18.) 3 Hutch. ut sup. 5. (i. 450.) 4 Ibid. Hume, ii. c. 2, & 3, (ii. 78.)

Hume, ii. c. xii. & 11, (ii. 319, and note,) and case of Susannah Hughs, Circuit, Glasgow, 18th September 1811.

6 Hume, ii. c. ii. & 11, Art. 3, (ii. 78.) c. xii. § 11, (ii. 320.) Hutch. B. ii. c. iii. § 4, (i. 450.)


used in evidence for the prosecution; and by reminding him that he may lawfully decline making any Declaration at all.1

The prisoner's Declaration must be taken down in writing, (and ought to be written on sheets apart from the rest of the precognition.)

It must be read over to the prisoner, and signed by him and the magistrate, or by the magistrate for him, if he cannot or will not subscribe.3

It ought to be signed on each page; and the prisoner's inability to write ought to be stated, at the close.

There ought to be present at the taking of the Declaration two credible witnesses at least, or, if possible, three, who ought to sign the last page, (each as witness,) and who ought to be able to authenticate on oath, if called on, all that took place in regard to the Declaration;" but no testing clause is required.5

4. Further Declarations. Until the libel is served on the accused, it is competent for additional declarations to be taken..

They may be asked for by the magistrate, or be offered by the prisoner, who has a right to do so.?

All subsequent declarations must be taken in the same way as the first.

But before each is emitted, it is proper, if not necessary, that all the previous ones should be read over to the declarant.



1 Hume, ii. c. xi. § 11. Art. 3, (ii. 78.) c. xii. § 11, (ii. 320.) Hutch. B. ii. c. iji. S 4, (i. 450.)

Hume, ibid. Hutch. ibid. 3 Hume, ibid. c. xii. & 11, (ii. 369.) Hutch. ibid. 4 Hume, ibid. ibid. and App. No. IX. Art. 8. (ii. 519.) Hutch. ibid. 5 Hume, ii. c. xii. Ş !1, (ii. 320.) Hume, as last cited, (ii. 320, 1.)

8 Hume, ibid.

6 Ibid.

The whole series of declarations must be carefully preserved.


1. Meaning The jurisdiction of Justices of Peace, as of other judges, may be declined, or “ disowned judicially," on the three grounds of,



2. Grounds of Declinature. (1.) Incompetency to the cause, as not properly within their jurisdiction.

(2.) Privilege of the party exempting him from the particular jurisdiction.3

Under this, members of the College of Justice may decline any jurisdiction inferior to that of the Court of Session ;4 but their privilege is taken away in cases under the Small Debt act.5

(3.) Actual interest in the cause, or presumed partiality towards a party from family connection.

The degrees of relationship are, father or mother, son or daughter, brother or sister, by either blood or marriage,? and even after the dissolution of the latter ;8 and uncle or aunt, nephew or niece, by blood only.9

[ocr errors]

1 Ersk. Inst. i. 2, § 24, 5,

6. Princ. i. 2, § 13, 4. 2 Ibid. § 24. Ibid. § 13.

3 Ibid. ibid.

4 Ibid. ibid. 5 39 & 40 Geo. iii. c. 46, § 19, 6 Ersk. Inst. ut sup. § 25. Princ. ut sup. § 13.

7 Ersk. Inst. ut sup. & 26. Princ. ut sup. § 13, act 1681, c. 13, and Act of Sederunt, 28th June 1787.

* Ersk. Inst. ut sup. & 26.

9 Ersk. Inst. ut sup. Priuc. ut sup. Act 1681, and Act of Sederunt, 28th June 1787.


1. Meaning DEFORCEMENT is the hindering or resisting of any officer of the law in the execution of his duty.1


2. What constitutes the Crime. To constitute this crime, it is requisite that the person deforced be an officer lawfully appointed.?

That the officer be actually engaged in an official act, or at least about to be so.5

That the officer give notice of his official character, and* of the purpose of his coming.

That, if required, he show his warrant, which, however, he need not trust out of his own hand.? But all of the last specified requisites become unnecessary if the parties deforcing the officer truly knew his official capacity, and the nature of his particular business at the time.8

The officer must conduct himself in a legal manner, yet, should he exceed his powers, no further force may be used against him than is necessary to prevent his unlawful steps; and undue violence against him would be severely punishable, though not as deforcement."

The hinderance offered must have relation to the officer's



It must be caused by some real impediment, by actual violence, or by reasonable apprehension of the latter." ?

The officer must be hindered from fulfilling his duty,

1 Hume, chap. xiii. (i. p. 380.)

2 Ibid. § 1, art. 1, (i. 380, 1.) 3 Ibid. art. 2, (i. 381, 2, 3.)

4 Ibid. art. 3, (i. 383, 4.) 5 Ibid. art. 4, (i. 384.) 6 Ibid. (i. 384, 5.) 7 Ibid. (i. 385.) s Ibid. art. 3, (i. 383, 4.)

9 Ibid. art. 5, (i. 385, 6, 7.) 10 Ibid. (i. 387.) 11 Ibid. art. 6, (i. 388.) 12 Ibid. art. 7, (i. 388, 9.)

« PreviousContinue »