CUTION. much comment, as private prosecution, except in the PRIVATE PROSEtrifling summary complaints, is now unknown in practice. No one is disqualified to prosecute in respect of Outlaw cannot personal disability, except an outlaw (1). prosecute. firm. A corporate body or company cannot prosecute (2); Corporation or the prosecution must be at the instance of the individual partners. Power is sometimes conferred by statute to prosecute by deputy; e.g., prosecutions by the General Prison Board (3). injury not direct. The injured party may prosecute whatever be the Injured party. offence (4). Where the Where the injury is not direct, it question where depends upon circumstances whether there is a right to prosecute. E.g., the patron of a parish under the former law of patronage might prosecute those who violently resisted an induction, but the heritors and parishioners could not (5). Any person to whose prejudice false evidence has been suborned or emitted, may prosecute (6); but it is doubtful whether a private party can prosecute for an attempt to suborn evidence against him (7). It has been held in cases of false-swearing in taking the oath of trust and possession at elections, that, besides the injured candidate, every elector has a title to prosecute (8). In deforcement, besides the messenger, the Lord Lyon and the employer of the messenger may prosecute (9). A master cannot prosecute for injury inflicted on his 1 Hume ii. 125.-Alison ii. 106. -More ii. 432. 2 Hume ii. 119, case of the Renfrewshire Banking Company v. Mackellar in note 1.-Alison ii. 106.-Aitken v. Rennie, Dec. 11th 1810; F. C., vol. 16, p. 78. 3 Act 2 and 3 Vict. c. 42, § 4. 4 Hume ii. 121, 122.--Alison ii. 103. 5 Hume ii. 119, 120, and case of Gillies and others there.-Alison ii. 100.-More ii. 431, 432. 6 Hume i. 379, and case of Lawson there-ii. 119, and case of Somerville in note 2.-ii. 121, case of Isaacson and others in note 2.-Alison i. 483. 7 Hume ii. 121, case of Jardine there.-ii. 122, cases of Hay; Macdonnell and Hog and Soutar there. -Hume inclines to hold the private prosecution competent. 8 Hume i. 379, case of Fife there. -ii. 120, 121.-Alison ii. 102. 9 Hume i. 399, and case of Du guid there.-Alison i. 508. PRIVATE PROSE- Servant (1). CUTION, Prospective no right. can Further, a prospective interest confer no title to prosecute. Where a Police Act interest confers declared that dung allowed to accumulate for a certain time should be liable to forfeiture, it was held that a person who had taken a lease of dung from the Police Commissioners, including 'what may become vested "in them by forfeiture," had no right to prosecute for an offence of accumulating dung (2). Bankrupt trustee no interest A trustee on a sequestrated estate cannot prosecute except by statute. at common law for fraudulent bankruptcy (3), nor for forgery committed in making a claim (4), nor for false swearing in the proceedings, but the right is conferred by statute in the cases of fraud and false swearing, it being necessary, as regards false swearing, that the trustee be authorised to prosecute by a majority of the creditors (5). In fraudulent bankruptcy, any creditor of the bankrupt, whose claim has been ranked, may Statutory power prosecute (6). Many statutes, including those for protection of fish and game, give the power to any person to prosecute (7). In cases of profanity any person may prosecute (8). The question has been raised, but not decided, whether private prosecution is competent under the Night Poaching Statute (9). Creditors in fraudulent bankruptcy. to any person. Right of relatives limited to great crimes. The right of relatives of the injured party to prosecute is limited to the case of atrocious crimes, such as murder and rape, or attempt to ravish (10). The 1 Wingate v. Brown, Feb. 17th 1809; F. C., vol. 15, p. 194. 2 Mitchell v. Scott and Mackay, H.C., June 24th 1847; Ark. 315. 3 Aitken v. Rennie, Dec. 11th 1810, F. C., vol. 16, p. 78. 4 Hume ii. 119, case of Belch in note 1. 5 Acts 7 and 8 Geo. IV. c. 20, § 2, and 19 and 20 Vict. c. 79, § 178. 6 Act 7 and 8 Geo. IV. c. 20, § 2. 7 For example, 9 Geo. IV. c. 39, § 9 (salmon), and 25 and 26 Vict. c. 97, § 28 (salmon).-13 Geo. III. v. c. 54, § 8 (game).-See Brown and 9 Graham v. Duke of Buccleuch and Crerar, H.C., Jan. 29th 1844; 2 Broun 85.-Herbert v. Duke of Roxburgh, H. C., Dec. 26th 1855; 2 Irv. 346 and 28 S. J. 130. 10 Hume ii. 118, 119.-ii. 122, 123, and cases of Cheyne and Bowman: Carnegie and Charteris there.Alison ii. 104. PRIVATE PROSE- relatives of a person whose grave is violated may pro- Case of rape. ferring right. near in degree, The question, what degree of relationship shall Relationship conentitle to prosecute, is not settled. All within the forbidden degrees of marriage may prosecute (3). It would appear that in one case the title of a cousingerman was sustained (4). Several relatives may If sufficiently prosecute together (5). It is no objection to the title others nearer of of a relative that there are nearer relatives who do not concur (6). Illegitimate relatives cannot pro- Bastard relations secute (7). A relative claiming to prosecute is Prosecutor put to bound to prove his relationship if required (8). no consequence. cannot. prove relationship. Hume inclines to think that a tutor or guardian Tutor. may prosecute for rape or abduction of his ward (9). public pros. Where the right to prosecute is not conferred on Concourse of individuals by statute (10), private prosecution requires the concourse of the public prosecutor (11), which can only be withheld on cause shown (12), and which the May be compelled Courts will ordain him to give, if his ground of course. 1 Hume ii. 121, and cases of Begg in note 1, and Samuel in note 2. 2 Act 1612, c. 4.-Hume i. 307.ii. 123, case of Cheyne and Bowman there. 3 Hume ii. 124.-Alison ii. 105. 4 Hume ii. 124, case of Gillespie there. 5 Hume ii. 124, case of Carnegie there. 6 Hume ii. 124. 7 Hume ii. 124.-Alison ii. 105. 8 Hume ii. 125, case of Young there. 9 Hume i. 307.--ii. 123, and case of Kerr there. 10 See Blackwood v. Finnie, H.C., June 1st 1844; 2 Broun 206.Raper or Reaper v. Duff, H.C., Feb. 6th 1860; 3 Irv. 529 and 32 S. J. 478 (Lord Justice Clerk 11 Hume ii. 125.-Alison ii. 111. 12 Hume ii. 126.-Alison ii. 111. -More ii. 432. to grant con CUTION. Concourse to both parties in PRIVATE PROSE- declinature be insufficient (1). But the person complaining of his refusal must show good cause why his decision should be overruled (2). Even where there are cross prosecutions by the same parties, the public prosecutor must give his concourse to both (3). cross prosecutions. Priv. pros. finds caution, and liable in expenses and calumny. Private prosecutors must find caution to insist in the charge (4), and may be found liable in expenses damages, oath of in the discretion of the Court if they fail in their prosecution (5). They may even, if the Court see cause, be ordained to pay a sum of damages to the accused (6). The accused may call on the private prosecutor to take an oath of calumny as a condition of his proceeding with the prosecution (7). A Priv. pros, dis- private prosecutor may disclaim a process which he has raised, and if he does so in sufficiently broad terms, he may thereby be excluded from the right to prosecute for the future (8). claiming process. PUBLIC PROSE CUTOR. The Lord Advocate is the principal public proLord Advocate, secutor in Scotland, and can prosecute in any court (9). He is the only competent public prosecutor in the Supreme Court, the Solicitor-General and the Lord Advocate Advocates-Depute being his deputies (10). Whoever succeeds to the office may take up libels raised by his predecessor (11). The Supreme Court can appoint a may take up predecessor's libels. 1 Hume ii. 126, 127.-Alison ii. 112. More ii. 432. 2 Cases of Mackintosh v. the Lord Advocate and Mackintosh, supra. 3 Hume ii. 127, and case of Stirling and others there. 4 Hume ii. 127, referring to statutes 1535, c. 35-1579, c. 78and 1593, c. 170.-Alison ii. 113.-More ii. 432. 5 Hume ii. 127, case of Maculloch and M'Candlish there.-ii. 128 and cases of Fullarton: and Liddell and Jeeves there.-Alison ii. 113. More ii. 432.-Will. Borthwick, H.C., June 17th 1822; Shaw 71. M. 6 Hume ii. 128, and cases of Oswald: Brown: and Houston and Brisbane there.-Alison ii. 114.More ii. 432. 7 Hume ii. 128, 129, and cases of Crawford and others: Watson and others: Lawson: and Hume there. Alison ii. 114, 115.-More ii. 432. 8 Hume ii. 129, 130, and cases of Graham and Smith and Christie there. Alison ii. 115. 9 Alison ii. 86. 10 Hume ii. 130 to 132 passim.— Alison ii. 84 to 87 passim.--More ii. 432. 11 Burnett 314, case of Myndham there, and in Appendix No. 15.— CUTOR. fiscal. no caution or member of the bar to act as counsel for the Crown on PUBLIC PROSEan emergency, as, for example, when the Lord Advocate has resigned, leaving indictments untried, and the new Lord Advocate has not yet been appointed (1). In inferior courts the public prose- Procurator cutor is denominated Procurator-fiscal. No public Public pros. prosecutor can be required to find caution or to take oath of calumny. an oath of calumny, but it is only the Lord Advocate Lord Advocate who is free from liability for expenses or for pecuniary penses. Fiscals penalties at the instance of a person who has been accused of crime without a conviction being obtained (2). Procurators-fiscal may be found liable in expenses (3). not liable in ex may be. compellable to The public prosecutor cannot be compelled to Public pros. not prosecute (4). No private prosecutor or other person prosecute. can prevent the public prosecutor from prosecuting for the public interest (5). INVESTIGATIONS PRELIMINARY TO TRIAL. Magistrate may to answer, and oath, The magistrate who conducts the preliminary inves- PRECOGNITION. tigation has power to cite witnesses. If they refuse, compel witnesses or contumaciously fail to attend, letters of second dili- put them on gence may be used, that they may be apprehended. He may commit them to prison if they refuse to speak, and put them upon oath if he see fit (6). In Should proceed these investigations, the ordinary rules of evidence, of evidence. Alison ii. 96. As regards the question whether a Procurator-Fiscal can take up libels instituted by his predecessor, see the opinions of the Court, M'Lean v. Cameron, H.C., Dec. 1st 1845; 2 Broun 657. 1 Daniel Campbell, H.C., Dec. 14th 1868; 1 Couper 182. 2 Hume ii. 134, and note 1.Alison ii. 92.-More ii. 432. 3 Hume ii. 134, cases of Cle phane: Guthrie and others: M'- 4 Alison ii. 87, 88.-John Gordon, 5 Hume ii. 132, 133, and cases of 6 Hume ii. 82.-Alison ii. 137, 138. by ordinary rules |