$7. GENERAL 5th, The af firmation must be proved. but what is on oath; and if the firft fpeech were without oath, another person's swearing that there was such speech, makes it no more than a bare speaking, and so of no value in a court of justice. Befides, if the witness be living, what he has been heard to say is not the best evidence. THIS leads us to the reafon of that deviation from the rule which is admitted, where the perfon from whom the witnefs had his relation of the facts is no longer living to bear teftimony himself; " and where this perfon was also "the best and most material of all witneffes, the party fuf"ferer by the crime libelled, and gave his evidence under "fuch circumftances as naturally lend it a more than ordinary "degree of faith. Thus in cafes of murder, our judges "have admitted evidence of the dying declaration of the "deceased, even though purely verbal; and ftill more, if "reduced into writing by any creditable person, with re"spect to the manner and guilt of his death; justly confi"dering, that fuch material testimony, and given on fo try"ing an occafion, is of fome weight in the scale of evi"dence and found reason, as a circumstance and prefump❝tion of guilt, though not to be admitted as of equal value "with an oath admitted before the fize." FIFTH. In every case the affirmative is to be proved. A negative cannot regularly be proved; and therefore it is fufficient to deny what is affirmed until it be proved. But when the affirmative is proved, the oppofite fide may contest it with oppofite proofs; for this is not properly the proof of a negative, but the proof of some proposition totally inconfiftent with what is affirmed; as if one be profecuted for an affault or intrusion, he need only make a general denial of the fact; and if the fact be proved, then he may a Hume, vol. iv. p. 226. bring evidence of a propofition inconfiftent with the charge, as that he was at another place at the time, or the like. BUT to this rule there is an exception of cafes where the law prefumes the affirmative in question; as in an action against a magiftrate, or other perfon, for an omiffion of his duty; for a perfon is prefumed to execute his office till the contrary appear. § 7. GENERAL CHAP. VII. I. H Of the Process, Decree, and Review. AVING already feen the general conftitution of this court; its criminal and civil jurisdiction; and those rules of evidence by which it must be governed it only remains, before leaving the fubject of the feffions, to take notice of the forms obferved in the procedure, and the manner of reviewing and executing its decrees. As the indictment, or criminal letters, in the court of jus ticiary are said to be in the form of a fyllogifm, so to a certain extent the fame is true of all writs, whether fummons, complaint, or claim, or libel, by which any cause is brought into court; containing, all of them, 1ft, fome legal pofition, which is the major; 2d, fome statement in fact, which is the minor; and, 3d, the application of the law to the cafe, whether payment or punishment be in view, which is the conclufion. And although the same scrupulous exactness cannot be expected in other courts, as in the criminal trials before the justiciary; yet in no cafe can attention to perfpicuity, brevity, and precifion, be fafely omitted. SUMMONS, PLAINT. ALTHOUGH in one sense the jurisdiction of this magistra- $1. cy be altogether ftatutory, yet fome branches of it, fuch as ox comthat touching the excife, customs, ftamps, game, &c. arise from particular ftatutes; which therefore are the directory in drawing the complaint or libel; examples are to be found in Appendix II. It is only material to notice the neceffity of attention not to omit any of the acts; particularly the last relative to the matter of the complaint; otherwise penalties may be concluded for and inflicted in virtue of ftatutes, either wholly or partly repealed; a thing far from being without precedent in practice, and arifing from the multiplicity of ftatutes in many branches of the law, without any very confpicuous difference from each other. But the inaccuracy muft render all concerned liable in high damages. In other cafes, the form and conclufion vary with the nature of the action. But as the fame fort of causes come before the different feffions, fo the fame form of procedure, and ftile of the fummons or complaint, feem to prevail; the answers received from the different counties as to this particular being almoft in the fame words. COMPLAINTS are generally fubfcribed by the clerk; and the party cited in virtue of a deliverance, figned by any one juftice, on an inducia of fix or more days. He appears either perfonally or by a procurator, when the caufe is either decided on a viva voce argument, or a proof is allowed, of written informations ordered against a certain day, when the next meeting is to take place. fuer does not appear. SHOULD neither the pursuer appear, nor any person for If the purhim, or a fatisfactory apology be made in writing, the justices will difmifs the action, and affoilzie the defender with full expences. If the defender fail to attend by himself or procurator, 1. SUMMONS, the court in like manner will hold him confessed, and pronounce decree against him in terms of the libel. But if it fhall appear from the execution that he was not perfonally If the de- cited, then, agreeable to the direction of the general ftafender does tutes, the practice is to cite the defender de novo before the next meeting of justices; and upon a second execution being returned, though not perfonally given, the justices hold the defender as confeffed, in cafe he does not appear, and give decree against him, with expences. not appear. It is also in fome places the practice for the party to state his cafe fully in the form of a petition, which is appointed to be answered within fix or ten days; and, with the anfwers, is laid before the juftices; thus from the first the pleadings are in writing. In fummary complaints, a petition is given in praying for service, and the order is to give in answers within forty-eight hours, or three days, according to the distance of the party's refidence. In all cafes, however, whether fummary or ordinary," there ought to be a competent time, lefs or more, "according to the exigence of the matter *." IN criminal matters of any importance, it is proper that the party should not only be served with the copy of a complaint to appear on an inducia, more or lefs as the thing may require, but the complaint fhould narrate the particulars of the crime or delict committed, and the fine or punishment concluded for, and fhould be served on the defender at least fix days before the diet of compearance. "The conftable "should also cite the witneffes neceffary for probation; and, "if required by the defender, he fhall cite witnesses at his "inftance, giving the witneffes a competent time for at 2 Fullerton against Hamilton, 19th Nov. 1714. (Pref. Dalrymple's Decifions.) |