Slike strani


of law for perjury committed in a judicial proceed- COMMITMENT ing (1). But in the ordinary case such a warrant would be illegal. The Lords of Justiciary grant war-Lords of Justi rant in this form, as they do so only on the Lord ciary, Advocate's motion, in whom they repose confidence as a superior official, and as they never conduct the investigations preliminary to trial (2). In case of or Privy Council imminent or actual invasion, rebellion, or insurrection, ment. the Privy Council, or any five of them, may order commitments (3).

ordering commit

A double of the warrant under the hand of the Double served on officer who bears it, or of the prison-keeper, must be prisoner. served upon the accused before or immediately upon imprisonment. Where it is subjoined to the petition, it is usual to serve a double of both. But a double of the warrant is all the accused is entitled to, and if it sufficiently set forth the accusation, he cannot complain that he did not get the information also (4).

1 Murdo Mackay and others, H.C., Feb. 21st 1831; Bell's Notes 157.

2 Hume ii. 80.-Alison ii. 130.
3 Hume ii. 86.-Alison ii. 160.
4 Hume ii. 85.-Alison ii. 154.
5 Act 1701, c. 6.-Hume ii. 81.-



committal in
non-capital cases.

Generally speaking, all offences not capital are WHAT OFFENCES bailable, and the privilege extends to every commit- competent on ment for trial (5), including cases where the commitment is direct, as in the case of a person committed for perjury in the course of a judicial proceeding (6). In determining whether the crime is capital, the letter question if of the law is to be taken, and the crime is to be determined judged of, not by the mere name in the information or warrant, but by consideration of the facts forth (7). Until it can be determined whether

offence capital


set Bail refused the wound uncertain.

while effect of

Alison ii. 160, 161.

6 Hume ii. 89-Alison ii. 163.Ker v. Orr and Fulton. Nov. 22d 1744; M. 7419.

7 Hume ii. 88, 89, and case of Connocher there.-Alison ii. 161, 162, 163.


WHAT OFFENCES crime is capital or not (as in the case of a wound which may prove fatal), bail should be refused (1). The offences which are not bailable, though not capital, are serious forgeries and thefts, high crimes and offences under the Post Office Act, and treason-felony (2).

Bail may be allowed by the Supreme Court in their discretion, though not otherwise competent (3); but the Court may fix the amount arbitrarily, without regard to the ordinary legal rates (4). In Post Office offences the same power is given to Sheriffs and their substitutes (5). The Lord Advocate may consent to

Certain noncapital offences not bailable.

Supreme Court may allow bail in non-bailable


In post-office cases sheriffs

have power.

Lord Advocate's consent,

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cap. 38, Robbery, Rape, Wilful "Fire-Raising, Cattle and Horse Stealing, Sheep Stealing of more "than one Sheep, Furtum Grave, "Three Acts of Theft, Theft aggra"vated by two previous convic"tions, Theft aggravated by habit "and repute, Theft by House"breaking, Incest and Unnatural "Crimes, Forgeries which were "capital previous to the 2d and 3d "Will. IV.; i.e., Forgeries of "Obligatory Writings, such as "Bills, Bonds, Bank Cheques, "Promissory Notes, Deeds, &c."The High Crime and Offence "under the Post-office Act, 7th

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"Will. IV., and 1st Vict., cap. 36, "and all Crimes made capital by "any Statute now in force, it is "not in the power of any Magis"trate to admit to bail without "consent of the Lord Advocate; "and the Procurators-Fiscal will "take care (so far as within their "power) that bail is not accepted "in any of the above cases without "communication with Crown "counsel." To these must be added the offence of treason-felony, under the Act 11 Vict., c. 12, § 9.

3 Hume ii. 90, 91, and cases of Fulton: Monro: Henry: Collie: and Smith and others there. This is specially provided as to forgery cases by 5 and 6 Will. IV. c. 73, § 2, and as to Post-office offences by 7 Will. IV. and 1 Vict. c. 36, § 38.William H. Thomson. H.C July. 10th and 15th, and August 17th 1871; 2 Couper 103 and 43 S. J. 561 and 8 S.L.R. 654 (Lord Justice-Clerk Moncreiff's opinion).

4 Hume ii. 90, case of Fulton there.-ii. 91, case of Symmons in note 1. This is specially provided as to forgery and Post-office offences: see previous note.

5 Act 7 Will. IV. and 1 Vict. c. 36, § 38.

bail in cases not legally bailable, but he may fix it at WHAT OFFENCES a sum beyond the ordinary legal rates (1).





to try offence.

Applications for bail may be made before or after MODE OF APPLIimprisonment (2), and to the committing magistrate, Before or after or to the Commissioners of Justiciary, or to any judge, To committing provided he can try the offence (3). The application judge competent must be in writing, or it cannot be founded on in after Application in proceedings (4). It offers to find caution for six months, writing. to appear and answer the charge, and is accompanied by a copy of the warrant of commitment, this not being a rigorous solemnity, but, of course, absolutely necessary, if the judge applied to did not grant the warrant of commitment, and does not know the circumstances (5). A peer may apply to the Lords of Justiciary or the Application of Sheriff of the county where he is imprisoned, and the peer. caution in his case is to answer the charge in any competent court, within twelve months in Parliament, or the Court of the Lord High Steward, and within six months if before a Scotch Court (6).

of bail.

If bail be improperly refused, relief may be had in Improper refusal the Supreme Court (7). If bail be improperly accepted, the bail-bond is still valid, and the sum in it may be forfeited on the failure of the accused to appear (8).

Bail is limited to £1200 for a nobleman, £600 for AMOUNT OF BAIL, a landed gentleman, £300 for a gentleman, or burgess, or householder, and £60 for other persons (9). In treason cases double bail may be exacted (10).


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3 Dow's Appeals 160.

5 Hume ii. 94.-Alison ii. 169.
6 Act 6 Geo. IV. c. 66 § 8.-
Hume ii. 93, note b.-Alison ii. 170,

7 Hume ii. 90, case of Grimm there. ii. 97.-Alison ii. 179.

8 Jean M'Arthur or Kirk, Stirling, Sept. 11th 1829; Bell's Notes 158.

9 Act 39 Geo. III. c. 49.-Hume ii. 92. Alison ii. 167.

10 Act 1701, c. 6.


within .

Not liable for

orders liberation.

judge must modify the sum within twenty-four hours Judge must tixs of the application, but is not liable for delay or error

in judgment in refusing bail, except at common law error in refusing. where he acts in flagrant violation of justice (1). The Bail found, judge bail being found, and instruments taken on the delivery Not answerable of the caution, the judge must order liberation, unless

any question be raised as to the sufficiency of the bail, sufficiency.

in which case he is not answerable for delay caused by
enquiry, unless it be undue (2). When bail has been
modified the prosecutor cannot raise any question
afterwards as to the sufficiency of the amount (3).

Bail-bonds must specify the domicile at which the
accused may be cited (4).

for delay in investigating

Prosecutor cannot object bail too small.

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Call prosecu-

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Every person committed to prison for crime may at

once apply for intimation to his accusers calling upon lor to fix diet in them within the next sixty days to fix a diet for trial (5). 60 days.

The only limitation of this privilege is in cases of treason,
Specialty in

where it cannot be exercised till forty days after commit-
ment (6). The application must be to a judicatory com-
petent to try the offence (7). In a Supreme Court offence
intimation to the Lord Advocate must be applied for (8),
and it would appear that no intimation to the Lord

Advocate is valid, unless made on the precept of that
What if commit- Court (9).

If the commitment has been by the Court út instance Supreme Court, at the Lord Advocate's instance, then, of Lord Advocate?

how trifling soever the crime, the application for inti

ment by Supreme

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1 Hume ii. 97.-Alison ii. 171, 172, 175, 176.

2 Hume ii. 96.----Alison ii. 179.

3 See petition by the Procurator Fiscal of Glasgow, July 28th 1801 ; Hume ii. 92, note 2.-Alison ii. 176.

4 Act 31 and 32 Vict. c. 95, $ 18.

5 Act 1701 c. 6.

6 Hume ii. 99.-ii. 104.-Alison ü. 184.

7 Hume ii. 100, case of Spittal in note 1.-Alison ii. 185, 186.

8 Jas. Fegen or Brannan, Jan. 29th 1838; Bell's Notes 162.- John Coutts and ers, H.C., Oct. 30 1845 ; 2 Broun 521.

9 Burnett 355, case of Rankin there.


mation must be made to that Court (1). But in any
other case cognisable by an inferior judge, it is sufficient TRIAL.
to apply to him and to ask for intimation to the Pro-
curator-Fiscal (2). And this suffices though the Lord
Advocate afterwards try the case in the Supreme Court (3).
Where a private party appears by the warrant to be Intimation to
concerned, intimation must be made to him also (4).

private party.



accused may de

where party not

On a written (5) petition being presented with the RESULT OF double of the warrant under the prison-keeper's hand, SERVE INDICTthe judge must within twenty-four hours give out letters or precept for intimation (6). If no libel be on 61st day served within sixty days after, and in addition to, the mand liberation. day of intimation (7), the accused is entitled to liberation, and cannot afterwards be reincarcerated, except under "Last Criminal Letters." It may be doubted Does Act apply whether the right to be liberated belongs to one who in prison at was not in prison when he asked for intimation, the Act saying, “in custody in order to trial" (8). But Liberating after where the accused has obtained intimation, his being not stop operasubsequently dismissed from prison, cannot preclude him from the benefit of the act as regards freedom from reincarceration except upon Last Criminal Letters (9). A prisoner admitted to bail at his own request cannot claim the benefit of the law (10).


intimation does

tion of Act.


Where a libel is served within the sixty days, the PROCEDURE statute ordains that the prosecutor "shall insist in the SERVED. “libel,” and the judge shall put the same to a trial, to sentence with

Charge brought

in 40 days in Supreme Court, or 30 in others.

1 Hume ii. 105.-Alison ii. 186, 187.

2 Hume ii. 105, 106.-Alison ii. 187.

3 Hume ii. 105.-Alison ii. 187. 4 Hume ii. 106, and case of Cameron there.-Alison ii. 187.

5 Hume ii. 104.-Alison ii. 186. 6 Hume ii. 99, 100.-Alison ii. 183.

7 Hume ii. 100, note a.-ii. 107, case of Mackintosh in note 2.Alison ii. 187, 188.-John or Alex.

Campbell, July 13th 1822; Shaw

8 Hume ii. 104 and case of Ridley
in note 2.-Alison ii. 203.--See
Chas. Macdonald, June 18th 1832; 4
S. J. 521, and 5 Deas and Ander-
son 377, and J. Shaw 381 note, and
Bell's Notes 160.

9 Case of Macdonald in previous


10 David Balfour, H.C., July 20th 1850; John Shaw 377.

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