Slike strani

NOTICE OF DIET Sons abroad are edictally cited, sixty days induciæ are


allowed (1).

The officer who has cited the accused returns an execution of citation (2). The execution must name the offence, but an elaborate description is not necessary. The objection that the execution in a charge of forgery, omitted the words "as genuine," was repelled (3). Nor need the execution refer to any aggravations libelled (4).


Elaborate statement of offence not


Aggravation not specified.


Prosecutor need not produce execution.

If he do, any real defect fatal.

Faulty execution.

Citing for

The execution is signed by the officer with the word "macer" or "Sheriff-officer" appended, as the case may be, and it is also signed by the witness, thus"A. B., witness."

The prosecutor cannot be called on to produce the execution, unless sentence of fugitation, or forfeiture of bail bond is demanded, and may prove service by the oaths of the officer and witness (5). But if he do produce it, he cannot object to its being founded on, and any serious defect, such as omission to state the mode of service, will be fatal (6). A faulty execution cannot be withdrawn and another lodged after the diet to which the accused is cited, even though the diet have not been called (7).

The warrant for citing the prosecutor's witnesses has been already noticed. For the citation of witnesses for the accused, a bill must be presented to the Court, which is passed as a matter of course, the signature of the Clerk of Court being sufficient in the Justiciary Court, and letters of exculpation are raised thereon (8).

1 Hume ii. 259.-Alison ii. 336. -Campbell 338.

2 Act 9 Geo. IV. c. 29 § 7.

3 John Campbell, Inverness, April 23d 1836; 1 Swin. 194 and

Bell's Notes 227.

4 Campbell 342.Jas. Innes and others H.C., March 15th 1826; Shaw 151.-Peter Smith, Glasgow, Jan. 9th 1836; 1 Swin. 27 and Bell's Notes 227.

5 Act 9 Geo. IV. c. 29, § 7.

6 Campbell 342.-Thos. Soutar and others, Perth, Sept. 8th 1828; Shaw 209.-Frederick Paterson and Rob. Brown, March 12th 1829; Bell's Notes 226.-Peter Smith, Glasgow, Jan. 9th 1836; 1 Swin. 27 and Bell's Notes 226.

7 R. Young and J. Morrison, H.C., June 3d 1822; Shaw 67.

8 Act 11 and 12 Vict. c. 79, § 3.


Witnesses cited on warrant in



not have



Both witnesses and 'jurors must be cited a reasonable CITATION OF period before the trial. Witnesses may be cited in any part of Scotland on the warrant of

any Scottish Court (1), and witnesses in other parts of the United King- any part of dom may be effectually cited to attend (2), and if they in Scotland. fail to do so, they may be apprehended on letters of second diligence, endorsed by a superior judge of the division of the kingdom in which the apprehension takes place (3).

In the citation of witnesses, the officer does not omcer need require to be in possession of the warrant of citation (4), warrant, nor and the citation does not require to be in presence of a witness (5). A written execution of citation of wit- Execution of nesses is retained, which may be founded on in the event of witnesses failing to appear, to entitle the Court Witness failing to impose fines, and, if cause be shown, to grant warrant for apprehension and committal to prison (6). Where a witness is so committed, he must remain in prison till the trial, unless the Court, on his application, liberate him on caution (7). On application, supported by an oath stating that a witness is likely Witness to abscond, the Court may grant warrant for apprehension and committal to prison, unless the witness shall find certain bail prescribed in the warrant (8). If a witness is in fear of arrest for civil debt, or the Protection from like, the Court will, on application of the party, supported by an oath, grant him a protection to appear as a witness (9).

Jurors are cited by registered post letter, and certi- CITATION OF ficate of citation by the Sheriff Clerk is equivalent to an execution of citation (10).




1 Act 11 Geo. IV. and 1 Will. IV. c. 37, $ 8.

2 Act 45 Geo. III. c. 92, $ 3. 3 Act 54 Geo. III. c. 186, $ 3. 4 Act 9 Geo. IV. c. 29 8 7.

5 Act 11 Geo. IV. and 1 Wil. IV. c. 37 $ 7.

6 Hume ii. 373.-Alison ii. 396, 397.

7 Alison ii. 397.

8 Hume ii. 375.-Alison ii. 398, 399, 400.

9 Hume ii. 376, 377.–Alison ii. 400.

10 Act 31 and 32 Vict. c. 95 $ 10.



trial in Sheriff Court.

No in

be in actual


The prosecutor must have the articles, of the production of which he has given notice, lodged “in due “ time” with the clerk of Court. Further, if the accused has been admitted to bail, the prosecutor ought to produce the bail-bond or a certified copy (1). But

it is not necessary to produce search warrants (2). Day before

The day before the trial is fixed as the latest period

for lodging in the Sheriff Court (3). As regards the Supreme Court. Supreme Court, no precise limit can be fixed as repre

sented by the word “due” (4). The decisions indicate that the true question is whether the accused has

been prejudiced by failure to lodge a production (5). Article need not The clerk of Court need not have had the article in possession of

his actual possession, it being sufficient if it has been within his control; as e.g., by being in the Sheriff-Clerk's office (6). And if parties are informed where the article is, and are allowed to inspect it, they

have no ground of complaint (7). Can article

The question, whether an article of which notice has clerk's hands

been given can be used, although it has never been in be used ?

the hands of the clerk, either actually or constructively, remains doubtful.

In one case,

an objection was 1 John Lawrence, H.C., Jan. 15th 6 Geo. Clarkson and Pet. Mac1872; 2 Couper 168. This point is donald, May 8th 1829; Bell's Notes not mentioned in the rubric.

275.--Henry Kerr, Dec. 26th 1833; 2 John Porteous, H.C., July 2d Bell's Notes 275. 1867, 5 Irv. 456,

7 Jas. Dow and Jas. Dick, 1829; 3 Act of Adjournal, March 17th Bell's Notes 275.-See the case of 1827.

Jane Macpherson or Dempster and 4 Hume ii. 388.--Alison ii. 593, others, H.C., Jan. 13th 1862 ; 4 Irv. 594.

143 and 34 S. J. 140, where an 6 Ann Kerr and Others, H.C., English official was sent to ScotMarch 2d 1857 ; 2 Irv. 608 and 29 land in charge of a “Sessions'book," S. J. 274.-Thomson rs, Ayr,

which was libelled on a producSept. 24th 1857 ; 2 Irv. 725.- tion, but which he refused to give Alex. Watt, H. C., March 21st 1859; up. 3 Irv. 389.

never in


repelled to production of an article which had remained Lodging PROin the possession of a witness, and who produced it at PROSECUTION. the trial (1). In another case the production was withdrawn (2). Both Hume and Alison give their opinion against the decision in the former case (3). The argument that the accused can suffer no prejudice, if he does not inquire for and demand inspection of the article before the trial, is plausible, but is not sound as applied to the case of an article which is never lodged. He may suffer no prejudice from not having seen the article, but is it equally clear that justice may not suffer prejudice by the article being left in the power of the prosecutor during the trial, and until he sees fit to produce it ? Every principle of justice points to the necessity of having the articles, which are to be used against the accused, in Court and out of the control of the prosecutor before the trial. Although the accused may not care to see the productions, the Court is bound to protect him from the risk of articles being tampered with during the progress of the trial, and to secure that he shall have before him, from its commencement, every article that is to be used against him.

In some cases the lodging of a production is of no Sealed packets. advantage to the accused; as where it consists of a

1 packet sealed up by a magistrate. In such a case, the accused's remedy consists in an application to the Court to have the packet opened, and if no such application is made, he will not be permitted to raise any objection (4). It sometimes happens that the prose- Article of which cutor, though producing an article, such as a Crown inspection office letter-book, refuses to allow inspection of parts

perinitled. of it which have no bearing on the case. Where the

1 Hume ii. 388, case of Muir in Jedburgh, Sept. 11th 1838 ; 2 Swin. note 3.-Compare also the opinions

3 Hume ii. 388, note 3.-Alison Alex. Watt, H.C., Mar. 21st 1859;

4 Hume ii. 388, case of Lyall in 2 Jas. Pringle and Helen Scott,

192 and Bell's Notes 275.

of Lords Deas and Ardmillan in

ii. 595.

3 Irv. 389.

note 3.-Alison ii. 594.




List must be lodged and served on

Court are satisfied with the grounds of a refusal, they will not order the custodier of the book to give access to the whole of it, but of course, will prevent the prosecutor from using any part to which access has not

been permitted (1). WITNESSES, &c.,

If the accused propose to adduce witnesses who are not in the prosecutor's list, he must lodge a list signed

by himself or his procurator, with the clerk of Court, prosecutor.

and have a double of it served on the prosecutor (2). Special defences If he proposes to make any special defence, he must, lodged.

by the day before the trial, give in to the clerk of Court a statement of the defence in writing, signed by himself or his procurator (3). The following are defences which are held special—Alibi, or a statement that the accused was not at the place of the offence when it was committed, but was at a different place (4), which must be specified (5): Insanity at the time of the offence : Allegation that the offence was commited by another person named and designed (6): Allegation

of self-defence (7). Where the accused proposes to injured . in character of impeach the chastity of a woman said to have been

injured (8), or to prove a quarrelsome disposition against the injured party (9), he must give notice of his

1 Joseph M. Wilson, H.C., June 4 Geo. Maclellan, H.C., Jan. 8th 1857 ; 2 Irv. 626 and 29 9. J. 14th 1843; 1 Broun 510. 561. -It certainly would be more 5 Francis Gairdner and others, fair to give some notice of the parts July 18th 1838 ; 2 Swin. 180 and of the book which are to be used in Bell's Notes 236. evidence.

6 Alex. Robertson, H.C., Feb. 2 Hume ii., 398, 399, referring to 8th 1859; 3 Irv. 328. — Isabella 1572, c.

26, and case of Lord Laing and others, H.C., Feb. 6th Bargeny, Alex. M‘Broom and 1871 ; 2 Couper 23. others, Dec. 29th 1831; Bell's 7 Will. Younger, Dec. 8th 1828 ; Notes 284-John Harper and Bell's Notes 236.-Will. Wright, others, H.C., Nov. 21st 1842; 1 Nov. 23d 1835 ; Bell's Notes 236. Broun 441.--Thos. Mure, H.C., 8 Alison ii. 531, and case of Nov. 22d 1858 ; 3 Irv. 280—This M'Cartney and M‘Cummings there. rule is applied to Sheriff Court -Rob. Forsyth and others, Stirpractice by Act of Adjournal, dated ling, April 27th 1866; 5 Irv. 249 March 17th 1827.

and 2 S.L.R. 2. Act 20 Geo. II. c. 43 § 41.- 9 Alison ii. 533.--Will. Brown, Hume ii. 399.-Alison ii. 369.-Act Jedburgh, Sept. 21st 1836 ; 1 Swin. of Adjournal, March 17th 1827. 293 and Bell's Notes 294. -Jas.


Notice of intended attack

« PrejšnjaNaprej »