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otherwise there is no deforcement, but merely an attempt to deforce, or an assault. 1

All those bearing any part in opposing the officer are guilty of deforcement, although not concerned in the officer's proceedings, nor instigated by those who are parties.

3. What deforcement Cognizable by Justices. Deforcement of higher officers is not cognizable by Justices of the Peace ;3 but, as all courts have right to give support to their own authority, and protection to their officers, Justices may try for the deforcement of their own constables.

4. Proceedings. And the offence may be prosecuted before a Justice of Peace court by the procurator-fiscal, the constable deforced, or the party who had employed him.5

Even when the procurator-fiscal prosecutes, the private employer is inadmissable as a witness, unless he discharge his interest for recovery of his debt.6

The pains which Justices would award in the above cases are, besides damages, either imprisonment or fine.


1. Meaning. Distress is a term and proceeding of the law of England, in which two particular, and several minor sorts of it, are recognized.?

But one kind of distress has been introduced into Scottish practice by British statutes extending to Scotland. 8

1 Hume, chap. xiii. (i. 389, 90.)

2 Ibid. art. 8, (i. 391.) 3 See Hume, ibid. & 111, (i. p. 393.) 4 See ibid. 5 See ibid. 6 Ibid. (i. 394.) 7 See Burn's Justice, voc. Distress, beg. and § 19.

Hutch. i. 8, § 4, (i. 313.)

It varies in some respects from the distress known to the English common law, and differs considerably from ordinary Scottish poinding.'

Indeed it has been found incompetent for Justices to authorise poinding in cases where statute has directed them to award distress.

That species of distress for which Justices may decern, is, like poinding, a diligence or execution against the property of the debtor, or party found liable in penalties, &c.5

2. What Goods affected by it. The goods against which it may be used are moveables, the property of the debtor, and even that of others in his custody.“

No exception exists in favor of agricultural cattle and implements, if there be no other chattles to seize, but they are not to be taken when there are other goods, at least in laboring seasons.

Articles fixed to real property may not be distrained.?

But growing crops are made liable to distress by an express statute. 8

The warrant of distress orders the goods to be seized, and, after a time, sold for payment of the chief sum, and all reasonable charges, if the debtor do not come forward sooner. 9


1 Hutch. i. 8, § 4, (i. 313.)
? Case of Lord Advocate v. W. & C. Forgans, 20th Feb. 1811.
3 Hutch. ut sup. (i. 313—5.) Burn, voc. Distress, $ 19.
4 Burn, ut sup. § 2, No. 9.

5 Ibid. & 2, No. 4. 6 So held in Scotland in the case of Lord Advocate v. W. & C. Forgans, 20th February 1811.

7 Hutch. ut sup. (i. 310, foot note d.) Burn, ut sup. & 2, No. 5. 8 Hutch. ut sup. Burn, ut sup. No. 8. Act. 11 Geo. II. c. 19. 9 Hutch. ut sup. (i. 313, 4.) Burn ut sup. & 19.


3. Interval between Seizure and Sale. Where there is no special statutory provision regarding the interval between seizure and sale, a general rule directs the Justices to limit the time in the warrant itself to a term of not more than eight, nor less than four days.'

4. Effect of Warrant. The warrant of distress for a penalty cannot empower the constable executing it to break open the door of a house, unless a share of the penalty goes to the King,. but it authorises any inner door or lock to be forced, after access has been made good to the inside of the house.3

But where goods have been fraudulently locked up doors may be broken open.*


5. Exception of Warrant of Distress. Distress must be taken between sunrise and sunset.5 Articles distrained must not be used by the constables.

The goods must be appraised by two appraisers named for the purpose, and afterwards sold for what they will bring, in satisfaction of the sum distrained for, and all charges of distress and sale; any overplus remaining to be paid to the owner of the goods.?

6. Expenses. The reasonableness of the expenses is sometimes directed by statute to be judged of by the Justices, but, in other cases, that is left to the distraining constable, whose charge cannot be modified but through a regular suit.8

1 Hutch. i. 8, § 4, (i. 313.) Burn, voc. Distress, $ 19. Act 27 Geo. II. c. 20.

2 Burn, ut sup. S 6, No. 2, 3. 3 Ibid. No. Hutch. ut sup. (i. 311, foot note e.) 4 Hutch. ibid. Burn, ut sup. No. 3.

Burn, ut sup. $ 111. Burn, ut sup. & 7, No 3. Burn, ut sup. $ 10. Burn, ut sup. § 19.





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7. Second Distress. Where a distress is insufficient to meet all that is due, a second distress may be granted.?

8. Indorsation of Warrant of Distress. When there are not sufficient goods of the debtor within the jurisdiction of the Justices granting warrant of distress, a Justice of another county, where the debtor has effects, may, on oath of one witness to the above facts, indorse the original warrant, so as to give it force within his territory.

And a Justice thus indorsing a warrant of distress, is not responsible for any irregularity in the mode of obtaining it at first. 3

For the difference between Distress and Poinding, See Poinding.


Justices are empowered by the Small Debt Act, to divide their respective counties into districts for the special purposes of that statute. 4

But it is common to separate each county into such divisions, for the general purposes of justice."

And to make a single distribution of districts for all objects.

These divisions have, of course, no effect in limiting the jurisdiction of the Justices, and the sentence of a district court may be executed in any part of the same county.

3 Ibid.

1 Blackstone, iii. 1. 2 Act. 33 Geo. III. c. 55, § 3. 4 Act 39 & 40 Geo. III. c. 46, § 16. 5 Hutch. i. 1, § 11, (i. 55, 6.) 6 Case of Fullerton v. Hamilton, 19th Nov. 1714. Dalrymple, No. 115.

It is usual, however, to have a peculiar Fiscal and Clerk for each district.1


1. In General.

A Domicil, or fixed place of habitation, is held to be that in which a party has resided for the last forty days.?

2. Requisites. The person must have lived with purpose to remain with his family in a dwelling-place, as his proper home or settled abode.3

A place of merely occasional residence, or the house of a friend, or an inn, is not sufficient. 4

3. Parochial Settlement.

Settlement in any particular parish is totally different,

And depends upon three years industrial residence, preceding his dependance on charity. 6


1. Old Laws.

Various enactments were of old passed against this vice, and Justices of Peace were particularly charged with their due execution.


I Hutch. i. 1, § 11, (i. 55, 6.)
2 Ersk. Inst. i. 2, § 16. Princ. i. 2, § 9. Hutch. i. 2, § 6, (i. 105.)
3 Ersk. Inst. ibid. Hutch. ibid. 4 Ibid. ibid.
5 Waddel v. Parish of Hutton, 14th June 1781.
6 Runciman v. Parish of Mordington, 24th January 1784.

Acts 1436, c. 44; 1617, c. 20, and others down to 1696, c. 31. ☆ By acts 1661, c. 38–1672, c. 22.

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