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ing diet more than 40 days within first 60 days.

and the same shall be determined by a final sentence

within forty days, if in the Supreme Court, and within How computed. thirty days in other Courts (1). The days are com

) puted not from the service, or the first diet, but from the expiry of the sixty days, so that the accused may

not be confined more than one hundred days in all (2). Prosecutor fix- But what shall be said if the prosecutor indict for a

date more than forty days within the first sixty ? Hume thinks that in that case, the prosecutor, if he go to trial, must bring it to an end within forty days counting from the first diet (3). But this view is scarcely consistent with the rest of his observations on the Act, which indicate the intention of it to have

been to prevent imprisonment for more than one On intimation hundred days (4). In the case of intimation after a served, prosecu- libel has been served, the prosecutor may raise another must bring it to within the sixty days (5), but if he elect to go on days of first diet, with the first libel, he must bring it to sentence with

in forty days of the first diet of compearance (6). If Accused free if a jury is sworn, and the trial not brought to sentence

within the forty days, the prisoner is entitled to absolvitor, whether the delay was caused by the

trial going beyond the time, or by the Court delaying Trial stopped by to pass sentence, or the like cause (7). But if the

trial be not concluded owing to an unavoidable accident, such as the death or illness of the judge or one of the jury, or illness of the accused, the prosecutor may still

after libel

tor, if he go on,

trial not finished in time.


1 Hume ii. 106. -Alison ii. 189.

2 Hume ii. 107. - Alison ii. 189 to 191.-Alison's observations seem to indicate that he holds the forty days are to be counted from the execution of the libel, but the authorities which he quotes scarcely support this doctrine, as they all point to the true rule being that the forty days are to be counted from the last of the sixty.--Jas. Arcus, H.C., June 25tb, 1844; 2 Broun 239.

3 Hume ii. 109 and note 1.

4 Jas. Arcus, H.C., June 25th 1814 ; 2 Broun 239 (Lord JusticeClerk Hope's opinion).

John or Alex. Campbell, June 8th 1822 ; Shaw 70.

6 Alison ii. 185.-Chas. Macdonald, H.C., June 18th 1832; 4 S. J. 521 and 5 Deas and Anderson, 377, and J. Shaw 381 note, and Bell's Notes 160.

7 Hume ii. 101, case of Anderson in note a.-Alison ii. 192, 193.


fall, and proceed

criminal letters.

ment found irre

insist at a new diet, provided this be prosecuted to PROCEDURE sentence within the forty days. If this cannot be served. done, there seems no reason to doubt that a new libel in the form of Last Criminal Letters, is competent (1). The question whether the Act applies to prevent a Trial breaking new libel where the prosecutor proceeds to trial, and fault of prosecuowing to some blunder is compelled to abandon the case, need not be discussed, as the primary objection that the accused has tholed an assize is unanswerable (2)

Where the libel is served within the sixty Allowing libel to days the prosecutor may allow that libel to fall, and ing by last prosecute by last criminal letters (3).

The question whether, when the indictment served where indietwithin the sixty days has been found irrelevant, the levant, can ucCourt may grant warrant to detain the accused until till new letters Criminal Letters have been prepared, is not expressly decided In one case it was held competent (4), but in a later case the Court declined to grant a warrant(5). Hume seems to hold it incompetent, and says that“to warrant a recommitment, the new criminal letters

must have been executed against the party ; for

such is the positive injunction of the statute” (6). Burnett (7) and Alison (8) both state that such warrants have been granted in practice. It is thought that such a warrant is not legal.

Last criminal letters may be brought at any time LAST CRIMINAL (9), even beyond the hundred days, but only before the

cused be detained

prepared ?

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1 Hume ii. 111 to 114 passim. Alison ii. 194.

2 Hume ii. 111, case of Hannay in note 1.--Alison ii. 194, 195.

3 Hume ii. 112, 113, and cases of Mackintosh : and Welsh in note 1.---Alison ii. 192.

4 Rob. Smith and Jas. Wishart, H.C., March 231 1842; 1 Broun 134 and Bell's Notes 161.

6 Michael Hinchy, Perth, Sept.

30th 1864; 4 Irv. 561 and 37 S. J.

6 Hume ii. 102.
7 Burnett 377.
8 Alison ii. 200, 201.

9 Jas. Molyson, Perth, April
18th 1862 ; 4 Irv. 180 and 34 S. J.
468.---This rule of course does not
apply where by special statute the
time for bringing a prosecution is

LAST CRIMINAL Supreme Court, and only by criminal letters raised of new (1), which same (2) letters must be brought to a final


At any time, but


brought to sen

tence in 40 days

before Supreme sentence within forty days of the recommitment; or if the accused be still in custody, within forty days of the service (3). If the trial be not concluded within the forty days, the accused is entitled to be declared "for ever free from all question or process for the foresaid Cause of failure "crime or offence." It matters not whether the


of new letters of

no consequence. letters have been insufficiently served (4), or are

thrown out on the prisoner's objection to relevancy, or whether the diet be deserted on the motion of the prosecutor, no other libel can be brought for that offence (5).

Limitation not applicable when

If the accused is allowed to remain at large on his accused allowed being served with last criminal letters, the limitation of

to remain at large.

the forty days does not apply (6). But according to the analogy of one case, if the accused be once incarcerated, his being subsequently allowed to leave prison will not protect the prosecutor from the running of the forty days from the date of recommitment (7).

But must be at

Delays at the prisoner's desire are not counted in computing the time, either as regards an indictment served within the sixty days, or as regards Last Criminal Letters. But this does not mean ordinary despecial request, lays, such as the Court adjourning to consider the accused's objections, or the like. It must be specially at his request, and it would seem that the request should be recorded, if it is to be founded on (8).




1 Hume ii. 102, and case of Jackson there, and case of M'Innes in note 2.-Alison ii. 199, 200.

2 Hume ii. 102, 103, and cases of Philip Miller alias Scott: and Gall there, and case of Sutherland in note a.--Alison ii. 201, 202.

3 Hume ii. 115.-Jas. Anderson, Nov. 24th 1823; Shaw 112.

4 John Cameron, H. C., Jan. 31st 1850; J. Shaw 295.

5 Hume ii. 101 and case of An

derson in note a.-ii. 103, case of Gall there. Alison ii. 203, 204.

6 Hume ii. 104 and case of Ridley in note 2.-Alison ii. 203.

7 Alison ii. 185.-Chas. Macdonald, H.C., June 18th 1832; 4 S. J. 521 and 5 Deas and Anderson 377 and J. Shaw 381 note, and Bell's Notes 160.

8 Hume ii. 109 and case of Bell there. Alison ii. 189.-ii. 204.Will. Lawson, Nov. 19th 1832;

tion to

Applications for liberation should be accompanied APPLICATION POR by the letters of intimation and execution thereof, and the judge, on his being satisfied of the facts, must within twenty-four hours give precept or letters for Liberation within liberation (1). The application is appointed to be to Where applicaany of the Commissioners of Justiciary or judge com- for liberation. petent respective. Thus a Sheriff, if the intimation was under his precept, may give the order though the process have been going on in the Supreme Court (2). But if the precept for intimation be issued from the Supreme Court, the liberation must also be applied for there (3)

By the Treason-Felony Act (4), the law as to liber- Treason-felony ation in treason-felony cases is exceptionally favourable to the accused, for the trial of person committed under it, “whether liberated on bail or not, shall in all “cases be proceeded with and brought to a conclusion, “under the like certification and conditions as if inti“mation to fix a diet for trial had been made to the

public prosecutor in terms of " the Act 1701, c. 6.


No fixed rule.

There is no rule of law establishing a prescription AT COMMON LAW of crime. In one case, where the prosecution was thirty years after the offence, the accused having been all the time within the kingdom, the Court dismissed the indictment (5). Hume thinks that twenty years Hume thinks should be sufficient to bar prosecution (6), unless

No prescription the delay was caused by the accused absconding (7) ; where accused

twenty years


Bell's Notes 162.—Thos. Hunter and others, H.C., Jan. 3d to 11th 1838 ; 2 Swin. 1, note p. 7.--Alex. Humphreys or Alexander, H.C., April 2d 1839; Swinton's Special Report, p. 46 and Bell's Notes, 162. -Jas. Cumming and others, H.C., Nov. 7th 1848 ; J. Shaw 17 (see minute, p. 34).


1 Hume ii. 100.-Alison ii. 198.

2 Hume ii. 115.-Alison ii. 197,

3 Hume ii. 115.
4 Act 11 Vict., c. 12, $ 9.
8 Hume ii. 136, 137, and case of
M'Gregor there.

6 Hume ii. 136. -Alison ii. 97.
7 Hume ii. 136.-Alison ii. 97.

AT COMMON LAW. and even in that case the prosecutor to keep up his right to pursue, should demand sentence of fugitation (1).


What is a commencement of prosecution?

Many statutes limit the time within which prosecution must be instituted under them, e.g., under the Riot Act, twelve months (2); under the Coining Act, six months (3); under the Night Poaching Act, six months in summary cases, and twelve months in Supreme Court cases (4). There is only one decision which throws any light upon the question, what is the commencement of a prosecution? It was held sufficient that the accused had been committed at the instance of the public prosecutor, and liberated on bail (5). In another case, where the accused had been libelled within the time, but owing to pressure of other business, the case had to be postponed, and a new libel served beyond the period, it was held that the previous proceedings constituted a commencement of a prosecution (6).

Party arrested in colony, sent back

The Secretary of State may send back to the colony

if not indicted in persons apprehended in the colonies, for offences com

six months.

mitted in this country, at their own request, if not indicted within six months after arrival at the place where the crime is alleged to have been committed (7).



At common law the right to prosecute is limited to officials who have authority to prosecute for the public interest, and to persons who are specially wronged (8). PRIVATE PROSE- The subject of private prosecution does not require


1 The Judgment in the case of M'Gregor (Hume ii. 137) bore expressly to proceed on there being nothing to shew "that any sentence "of fugitation passed against him." -More ii. 433.

2 Act 1 Geo. I. c. 5, § 8.

3 Act 24 and 25 Vict. c. 99 3.

4 Act. 9 Geo. IV. c. 69, § 4. 5 John M'Nab and others, H.C., March 14th 1845; 2 Broun 416.

6 Thos. Dearie, Dumfries, Sept. 14th 1866; 5 Irv. 317 and 2 S.L. R. 278.

7 Act 6 and 7 Vict. c. 34 § 7. 8 Hume ii. 119.-Alison ii. 99.

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