"tending the diet of compearance; and the constable shall SUMMONS, give to the defender and witnesses a fhort copy of cita- OR COMtion, and return an execution subjoined to the said memo❝randum PLAINT. when con No precife rule, therefore, can be laid down, whether the Litigation, litigation is conducted in writing or viva voce, which muft ducted in depend upon the circumftances of the cafe; but even where writing. it is done viva voce, the refult is minuted by the clerk. taken. In like manner, no precife rule can be laid down as to Proofs, how the taking of proof, whether in writing or viva voce. The general practice, however, is, on ordinary occafions, to take By commifit in writing, and generally by a commiffion, or committee fion. of juftices, who report it to the next meeting. THE diets of the juftices are not understood to be pe- Diets not remptory. A reasonable ground of application for delay is never rejected. temporary. S+2. DECREE II. THE shape and nature of the actions being various, the decrees, which follow thereon refpectively, muft vary AND EXE alfo. But, in general, it may be observed, that, with the fame CUTION. exception as before, of matters regulated by exprefs ftatute, fuch as excife, customs, game, ftamps, &c. in all private causes, that is, all causes where the object is pecuniary reparation to fome private individual, the decree cannot be enforced by perfonal execution, which in the cafe of debt horning and was not a compulfitory recognised by the ancient common caption, Not by law of this country; and still lefs are a warrant for horning Nor by and caption, an extraordinary diligence, which even judges acts of ordinary are armed with only by particular statute. THE decree of the juftices can be enforced by poinding * Printed regulations for the county of Inverness. warding. § 2. DECREE AND EXE- and arrestment only. In fome counties these proceed on a charge of fifteen days; in fome of ten, and in others of fix days. The mode of executing them, and farther particulars By poind- as to poinding and arrestment, will more properly be noticed ing and ar- in explaining the duty of constables. reftment. Imprison- IMPRISONMENT does not follow the decree of the feffions, ment, when unless, when, in the exercise of their criminal jurisdiction it takes place. it is inflicted by way of punishment, or as the neceffary compulfitory for payment of a fine; or in the exercise of their preventive juftice, they employ it for fecuring either the father of a bastard, till he give fecurity that the public shall Aliment of not be burdened with the aliment; or the debtor in meditatione fuga, that he shall not leave the jurifdiction to defrand his creditors. a baftard. ACCORDINGLY, fuppofe decree obtained for bygone aliment, in an action brought after the child is able to do for itself, it is not believed it could be inforced otherwife than by poinding and arrestment. BUT there is one exception. If the libel concludes, both for a fine to the public profecutor, and damages to the pri vate individual, it is the general practice of the feffions, though with the exception of fome counties, to imprison till payment of both. This, though it may at first feem to deviate from principle, is agreeable to the practice of other judicatures, and indeed arifes from the humanity of our law, and the apparent hardship that the public should be provided in a more effectual compulfitory for obtaining payment of the fine, than the injured individual who bore the expence of the action, for obtaining indemnification. BUT fuppofe the individual who has been affaulted, or otherwise injured, instead of having the fanction of the pro DECREE curator-fifcal's concurrence, and concluding for a fine to the § 2. public, fhall bring the action in his own name alone, and AND EXE conclude only for his own indemnification; in that cafe, it may rather feem he can have no compulsitory, but the ordinary one of poinding and arrestment. INDEED, it seems not free from fome doubt, whether a complaint in fuch a form would be competent before the feffions; before whom the action is competent, chiefly as police, or criminal magiftrates; and, of course, as neceffarily fuppofing public punishment as well as private reparation. There is no doubt of the competency of fuch a complaint before the judge ordinary, who has both civil and criminal jurifdiction. The difficulty arises from the feffions not having civil jurifdiction. Mr. Hume, though he obferves he could find no inftance of any libel in the pure pecuniary form being laid in the court of jufticiary, yet does not go the length of pronouncing it incompetent; and he observes, if a "libel has been raised, which embraces both the pub❝lic and private interest in its conclufions; here, though "the former happen to be disappointed, owing to the pan"nel's plea of res udicata, or a royal pardon, or an act of "indemnity, or the like, ftill the action has its courfe for ས recovery of the prosecutor's damages and expences a.” From this, therefore, we may rather conclude, that such actions, at the inftance of private individuals, concluding for private reparation only, are competent before the CUTION. $ 21. DECREE AND ZIR CUTION. feffions, if arifing from those breaches of the peace which would be competent before that court to the effect of punishment. No decree can be put in execution till it be extracted; that is, a copy of the decree (or of the whole procedure, if the party may wish it, or the nature of the caufe require it) made out and fubfcribed by the clerk, and containing a precept, as the warrant for execution. By the ftatute 2 Geo. I, chap. 26, it was provided, that, " and to the intent that no person or perfons, whatsoever, who shall be con"victed by any civil magiftrate, or court of judicature, "within that part of Great Britain called Scotland, of "any crime, importing a capital, or any other corporal "punishment, may be grieved by the over-hafty execu"tion of such fentence, without allowing time for ap"plication to his majefty, or to his heirs and fucceffors, "for his or their gracious pardon; be it enacted by the "authority aforefaid, that, from and after the first day " of June one thousand seven hundred and twenty-five, no "fentence or judgment of any civil magistrate or court of judicature, importing a capital, or any corporal punish"ment, if pronounced in Edinburgh, or any other part of "Scotland to the fouth of the Frith or river of Forth, fhall "be put in execution within lefs than thirty days after the "date of fuch fentence; and if pronounced in any place to "the northward of the said Frith or river of Forth, fhall be "put to execution within less than forty days after the date "of fuch fentence: Provided, nevertheless, that nothing "herein contained fhall hinder or disable the courts of ju"dicature, or any other civil magistrate, within Scotland, to "commit to gaol, and detain in cuftody, in order to trial, "or in order to the execution of fentences, as they by law "might have done, before the making of this act." But. this long delay being found troublefome, and a difcouragement to the trial of petty offenders, it was abridged by the ftatute 3 Geo. II, c. 32, which allows the inflicting of any DECREE CUTION. punishment fhort of death or demembration, after the expiration of eight days, or of twelve days from the date of AND EXE judgment; as it is pronounced to the fouthward, or to the northward of the Forth; faving always the right of applying to the court of jufticiary, who, or any of them, may stay the execution of any fuch fentence of an inferior judge for the space of thirty days, if there be caufe for fuch an interpofition. III. THE decrees of the feffions of the peace, where ftatute has not provided otherwife, are reviewable, like other inferior judicatories. Either the defender or purfuer may bring the judgment under review. The private profecutor may do fo, even on the footing that the punishment is not fufficient ad vindictam publicam. But whether the fame power belongs to the public profecutor, who may be thought. to have discharged his duty, by raifing and profecuting the libel before the competent court, and fhould acquiefce in their judgment, has appeared to fome more questionable. §3. REVIEW. ТО ТИЕ may be proper to begin with appeal, the only method APPEAL by which, of old, the judgments of inferior courts could be QUARTE brought under the review of the fupreme tribunals. THE judgment of a common feffions of the peace is brought under review of the quarter-feffions by appeal, which does not stop procedure, if the fentence appealed from be only interlocutory. The juftices may proceed to the finifhing of the caufe by fentence, though not to execution, till the determination of the appeal. An appeal is not competent after execution. "tence; but that if again such fen- SESSIONS. |