$10. SUMMARY WARRANTS IF TO ONE FO REIGNER AGAINST ANOTHER. Point de cided by the cafe of No other ground at least can be difcovered on which it can. be reconciled with cafes decided both before and after it; particularly thofe of Jouett and attorney against Wooley and Maidmant, and Tafker against Mercer b. THE cafe of Wooley and Maidment had occurred the feflion before that of Lechmere. The court, in that cafe, very court in the maturely confidered, and deliberately decided, the abftract point. There, no doubt, the original application had stated Wooley and Maid- that Wooley and Maidment were fwindlers, and craved a search warrant for discovering if they had any of the creditor's goods along with them; but none fuch were discovered. The allegations were not authenticated. Wooley and ment. cember 1775, Scot against Carmichael.) Befides, the party applying ought, in addition to his oath, that he believes the debtor means to leave the kingdom, to exhibit fome reafonable grounds for his fufpicion. (20th December 1789 Laing against Watfon and Mollifon); and none fuch have been offered in the prefent cafe. Anfwered-There feems no good ground for a distinction in this particular in favour of foreigners. Indeed, the law in fome degree contiders foreigners to be always in meditatione fuge, and therefore, in the admiraity court, caution is required from them, not only judicio fifti, but judicatum folvi. In this cafe the whole circumftances fupport the oath. Obferved on the bench-The court were much divided in opinion in the cafe of Scot against Carmichael, which, at any rate, from the period Mr. Lechmere has refided in this country, was very different from the prefent. But as a warrant of this fort is an extraordinary remedy, it ought in no cafe to be granted wifi caufa cognita. By this, however, it is not meant, that the judge, before granting it, ought to allow a proof of the oppofite averments of parties; but that the creditor, in addition to his oath of credulity, should state fome probable reafon for fufpecting that the debtor means to leave the kingdom; and the question is, whe ther any fuch appears in the prefent cafe. A majority of the judges thought, that as Mr. Lechmere bad come to Scotland to have the benefit of the fanctuary, where be bad bired lodgings by the year, there was no reafon to fuppofe be meant to deprive kimfelf of that benefit by leaving the kingdom. The lords remitted to the lord ordinary, to remit to the sheriff," with "inftructions to fet the advocator at "liberty." Fac. Coll. a 1796. November. b 27th February 1802. Fac. Coll. $10. SUMMARY ONE FO ANOTHER.' Maidment, on the other hand, maintained, that they had come to Scotland on a pleasure jaunt for the benefit of Mrs. Maidment's health. On that state of the fact the creditor -IF TO joined iffue with them as to the law, viz. his right to a fum- REIGNER mary warrant against them as frangers here tranfiently, fine AGAINST animo remanendi, till they found caution judicio fifti. This abftract point alone was confidered and decided. The court, indeed, must have deviated, no less from their uniform practice, than from obvious propriety, had they paid any regard to loose allegations on either fide, unfupported by evidence. The decifion, though pronounced by a very great majority, was not unanimous. A learned judge even maintained, that the doctrine, that any foreigner, however responsible at home, could be fummarily apprehended the moment he sets a foot in Scotland, till he found caution to answer in our courts, would not only be contrary to the interest of trade and manufactures, but a reproach on the law of the country, and an occafion of much hardship and inconveniency. However, the court in general viewed the law as above laid down. In particular, the late lord-justice-clerk Macqueen expreffed himfelf very decidedly in favour of the judgment of the court, which, moreover, has fince been farther fanctioned by the decifion in the cafe of Tasker. SECONDLY.-If, then, a foreigner, here tranfiently, may be 2dly, To a arrefted, it feems to follow neceffarily that he may arreft, foreigner. If our courts issue warrants against him, they must do fo equally at his inftance. Even at an early period our courts made no fuch invidious diftinction betwixt foreign and native creditors. THUS" arreftment was granted by the lords at the in"ftance of an Englishman upon the goods of another, nei"ther of them being in the country animo remanendi, found ་་ ed upon bonds made in England, not bearing any condi SUMMARY -IF TO ONE FO REIGNER AGAINST $10, "tion of payment to be made in Scotland." This cafe reWARRANTS lates to the arrestment of goods; but it depends upon the fame principle with the other; and lord Bankton's opinion goes to both equally. In either cafe, it is in view to fix ANOTHER? a jurisdiction. Accordingly, at a very early period it was decided, that a stranger, as well as a native, might arrest a foreigner in any of the boroughs. And in the different cafes already mentioned, the purfuers, as well as defenders, were foreigners; which train of decifions refts on this found principle, that judges do not difpenfe juftice as a matter of favour, but whenever they have jurisdiction are bound to exercise it at the motion of any person, whether foreigner or native, who has it in his power to fix a forum, by fecuring the defender's perfon or property to render the decree effec tual. curity to appear in his native courts? THE fame principle affords an answer to another question Summary that fometimes arifes where fummary warrants are applied warrantsfe- for against foreigners, namely, whether it is not enough to find caution to answer in their native courts. The court of feffion feems to have decided one cafe upon this principle, but it was a very particular cafe. The ftranger, an Englishman, when arrested in Edinburgh, on the meditatione fuge warrant, had taken his paffage at Leith for Newcastle, in order to return home to Morpeth, in Northumberland, where he had an established business, which his wife was conducting in his abfence. But this decifion, ftrong as the cir cumstances were, met at the time with much opposition, and has not been approved of fince. Accordingly, the court did not think itself at liberty to pay any regard to proposals repeatedly made by Meffrs. Wooley and Maidment to find a Haddington, Dec. 1610; Elveis gainst Lidderdale, Jouett against Wooley and Maidment, Tasker against Mercer. d Scot against Carmichael, 6th De Rae against Bellamie, Harris a- cember 1775. Fac. Coll. 3 SUMMARY caution to return to England, or to allow themselves to be conducted thither under the charge of one of the macers WARRANTS or officers of court. The creditors did not agree to those proposals; and the court was of opinion, that however equitable the proposals might appear, they could not compel the creditors to close with them. The creditors had taken the trouble to fix a forum here against their debtors; and the court expreffed themselves very clearly of opinion that it would be going quite out of the sphere of judges to deprive them of that (whether real or imaginary) benefit, and to enter into any fuch transaction as proposed. Sr. GENERAL VIEW. CHAP. III. Of Remedial Justice, or the Powers and Duties of Magistrates when the Peace has been broken. I. WHE THEN the peace is broken, there are, as we have already feen, certain duties incumbent on magiftrates, conftables, and indeed on all the lieges, who are bound to use their respective endeavours for allaying any dif turbance that has taken place, or preventing the accom plishment of any attempt to commit robbery, murder, or other unlawful act. Thofe duties, and particularly the ex traordinary jurifdiction for that purpose conferred on ma gistrates by the riot act, have been already confidered. But besides quelling the disturbance, or preventing the accomplishment of such defign, it is farther neceffary, by the pu nishment of the delinquent, to deter him and others from any repetition of the like attempt. The fecuring delinquents for this purpose, taking their precognitions, and other steps preparatory to a trial, particularly belong to justices of peace and other inferior magiftrates, whofe extenfive and impor tant jurisdiction in these matters, we now proceed to confi der in separate sections. |