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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

prosecute. personal disability, except an outlaw (1).

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).

The injured party may prosecute whatever be the Injured party. offence (4). Where the injury is not direct, it Question where

injury not direct. 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 intlicted on bis

1 Hume ii. 125.-- Alison ii. 106. 6 Hume i. 379, and case of Law-More ii. 432.

son there. -ii. 119, and case of 2 Hume ii. 119, case of the Ren- Somerville in note 2.-ii. 121, case frewshire Banking Company v. of Isaacson and others in note 2.-Mackellar in note 1.-Alison ii. Alison i. 483. 106. - Aitken v. Rennie, Dec. 11th 7 Hume ii. 121, case of Jardine 1810; F. C., vol. 16, p. 78.

there.—ii. 122, cases of Hay; Mac3 Act 2 and 3 Vict. c. 42, § 4. donnell : and Hog and Soutar there.

4 Hume ii. 121, 122.--Alison ii. -Hume inclines to hold the private 103.

prosecution competent. 6 Hume ii. 119, 120, and case of 8 Hume i. 379, case of Fife there. Gillies and others there. --Alison ü. -ii. 120, 121.-Alison ii. 102. 100.--More ii. 431, 432.

9 Hume i. 399, and case of Du. guid there.-Alison i. 508.




Creditors in

PRIVATE PROSE- servant (1). 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 trus- A trustee on a sequestrated estate cannot prosecute tee no interest 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 fraudulent bankruptcy. of the bankrupt, whose claim has been ranked, may Statutory power prosecute (6). Many statutes, including those for to any person.

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). Right of rela- The right of relatives of the injured party to protives limited to great crimes. secute 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 c. 54, § 8 (game).-See Brown and 1809; F. C., vol. 15, p. 194.

Philips v. Hunter, H.C., Dec. 10th 2 Mitchell v. Scott and Mackay, 1842; 1 Broun 458.–Tough v. H.C., June 24th 1847 ; Ark. 315. Jopp, Aberdeen, April 28th 1863 ;

Aitken v. Rennie, Dec. 11th 4 Irv. 366 and 35 S. J. 472. 1810, F. C., vol. 16, p. 78.

8 Hume i. 574. 4 Hume ii. 119, case of Belch in 9 Graham v. Duke of Buccleuch note 1.

and Crerar, H.C., Jan. 29th 1844 ; 6 Acts 7 and 8 Geo. IV. c. 20, 2 Broun 85.—Herbert v. Duke of $ 2, and 19 and 20 Vict. c. 79, Roxburgh, H.C., Dec. 26th 1855; § 178.

2 Irv. 346 and 28 S. J. 130. 6 Act 7 and 8 Geo. IV. c. 20, 10 Hume ii. 118, 119.-ii. 122, 123,

and cases of Cheyne and Bowman : 7 For example, 9 Geo. IV. c. 39, Carnegie : and Charteris there.§ 9 (salmon), and 25 and 26 Vict. Alison ii. 104. c. 97, § 28 (salmon).–13 Geo. III.

$ 2.


Violation of

no consequence.


prore relation

for rape

relatives of a person whose grave is violated may pro-
secute (1). In cases of rape, a husband or other near
relative may prosecute though the woman decline to sepulchres.

Case of rape. concur (2) The question, what degree of relationship shall Relationship con

. entitle 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

near in degree, 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).

ship. Hume inclines to think that a tutor or guardian Tutor. may prosecute

or abduction of his ward (9) Where the right to prosecute is not conferred on Concourse of

public pros. 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 S. J. 478 (Lord Justice Clerk Begg in note 1, and Samuel in Inglis' opinion).—Tough v. Jopp, note 2.

Aberdeen, April 28th 1863; 4 Irv. 2 Act 1612, c. 4.-Hume i. 307.- 366 and 35 S. J. 472. ii. 123, case of Cheyne and Bow- 11 Hume ii. 125.--Alison ii. 111. man there.

- More ii. 432.—M'Kelvie v. Barr, 3 Hume ii. 124.-Alison ii. 105. H.C., Dec. 3d 1860 ; 3 Irv. 631 and

4 Hume ii. 124, case of Gillespie 33 S. J. 48.-Mackintosh v. the there.

Lord Advocate, H.C., Mar. 9th, 6 Hume ii. 124, case of Carnegie 15th, May 20th and 23d 1872; 2 there.

Couper 236 and 44 S. J. 418 and 6 Hume ii. 124.

9 S. L. R. 466.- Angus Mackintosh, 7 Hume ii. 124.-Alison ii. 105. H.C., Nov. 4th 1872; 2 Couper

8 Hume ii. 125, case of Young 367 and 45 S. J. 51. The expresthere.

sions used by some of the judges in 9 Hume i. 307.--ii. 123, and case this latter case tend to throw doubt of Kerr there.

upon the doctrine that the Court 10 See Blackwood v. Finnie, H.C., can order the public prosecutor to June 1st 1844; 2 Broun 206.- give his concurrence. Raper or Reaper v. Duff, H.C., 12 Hume ii. 126.-Alison ii. 111. Feb. 6th 1860 ; 3 Irv. 529 and 32 - More ii. 432.

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).

Priv. pros. finds caution, and liable in expenses and

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 claiming process. 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).

The Lord Advocate is the principal public prosecutor 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

may take up predecessor's libels.

succeeds to the office may take up libels raised by his predecessor (11). The Supreme Court can appoint a

Concourse to both parties in cross prosecutions.


Lord Advocate.

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. M. Borthwick, H.C., June 17th 1822; Shaw 71.

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.


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).

The public prosecutor cannot be compelled to Publie pros. not prosecute (4). No private prosecutor or other person prosecute. can prevent the public prosecutor from prosecuting for, the public interest (5).

may be.



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.

Magistrate may

to answer, and


by ordinary rules

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.

1 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'-
Allister and Malcolm : and Coats in
note 1.-Alison ii. 93.

4 Alison ii. 87, 88.-John Gordon,
Petitioner, H.C., June 1766 ; Mac-
laurin, 258.

6 Hume ii. 132, 133, and cases of
Mowat : Bald : Somerville : Smith:
Young: Gordon : Beaver: and
Smith there.-Alison ii. 85.

6 Hume ii. 82.-Alison ii. 137,

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