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intention, though not in the form of a defence (1). Witnesses, &c., And he will not be permitted to go beyond the time specified in the notice (2).

When the accused proposes to produce articles, he Notice of gives notice of his intention to do so, and he cannot use an article to the prejudice of another accused along with him, if no notice has been given (3). But there No male as seems to be no clearly defined rule in reference to the productions lodging of productions for the defence before the trial Court. in the supreme Court (4). In the Sheriff Court, the In Sheriff accused must lodge all articles upon which he proposes be lodged. to found, the day before the trial, and articles not so lodged cannot be used, except by permission of the Sheriff, granted on cause shown, before the commencement of the trial (5).

in Supreme

Court must


The trial of crime takes place with open doors, and Tur COURT.

Trial with open it is illegal to exclude the public except in the case of doors, except

in certain cases. indecent and unnatural offences, or in cases where the Court has been cleared in consequence of disorderly conduct or intimidation (6). Where the court is cleared to try cases of an indecent description, the doors should be opened before the jury return their verdict.

It is not an objection to the legality of a trial that it has extended into Sunday morning (7). Irvine, Dumfries, April 23d 1838 ; 6 Act 1693 c. 27.-Finnie v. Gil2 Swin. 109.

H.C., June 11th 1850 ; J. 1 Geo. Forbes and others, Perth, Shaw 368.--Orr v. M.Callum, H.C., Oct. Ilth 1858; 3 Irv. 186 and 31 June 25th 1855; 2 Irv, 183 and 27 S. J. 37.- Jas Reid and others, S. J. 500. H.C., Dec. 9th 1861 ; 5 Irv. 124 and 7 Alison ii. 643.-Harris Rosen34 S. J. 108.

berg and Alithia Barnett or Rosen2 Rob. Forsyth and others, Stir- berg, H.C., June 13th 1842; 1 ling, April 27th 1866; 5 Irv. 249 Broun 367, ncte, and Bell's Notes and 2 S.L.R. 2.

140.--Bell states the matter as hav3 Hugh H. M'Clure, H.C., March ing been decided in the above case, 15th 1848 ; Ark. 448.

but this is not consistent with 4 Hume ii. 400.

Broun's report. 5 Act of Adjournal, March 27th


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The powers of Courts for maintaining order and
purity of proceeding must be noticed first. All Courts
have the power to enforce order, and to punish acts of
contempt against their authority and dignity (1).
Thus, if the accused (2), or a witness (3), or juryman
(4), appear in a state of intoxication, or if any person
behave in an insulting and contemptuous manner (5),
instant summary punishment may be inflicted. If
witnesses, after being inclosed under charge of officers
break out of the room where they are confined, they
may be punished (6). Certain other contempts of
Court will be noticed in treating of evidence. Further,
the Court may call any person to account who attempts
to affect the course of justice by publishing one-sided
statements of the case (7), or by destroying or deliver-
ing up to the friends of the accused articles which have
been called for by the public prosecutor (8), or by ani-
madverting upon the Court itself (9), or granting false
certificates (10), or whispering to a witness while under
examination (11), or in any similar manner.

In cases
of publication of statements, which do not call for
punishment, the Court may still interfere to prohibit
such publication (12).
1 Hume ii. 138.

M'Ewan there. See also Hume i.
2 Alex. Malcolm and Malcolm 406.-Will. Watson and Alex, Mur-
M'Gillivray, Inverness, Sept. 25th ray, H.C., Feb. 18th 1820 ; Shaw 9.
1838 ; 2 Swin. 185 and Bell's Notes 8 Hume ii. 140, case of Dun

there.— Alex. Galloway, H.C., Dec.
3 John Allan, Glasgow, April 4th 1839 ; 2 Swin. 465 and Bell's
29th 1826 ; Shaw 172. - Jas. Notes 101 and 166.
Wemyss, March 16th 1840 ; Bell's 9 Hume ii. 139, case of Camp-
Notes 165. In this case the witness bell : Nairn and Ogilvy :

was so intoxicated as to be unable Johnston and Drummond there.-
to come into Court, and was sen- Alison i. 575.-Gilbert Macdonald
tenced on this fact being proved. and Will. Carse, H.C., Jan. 3d 1820 ;

4 Elizabeth Yates, H.C., March Shaw 3. 20th 1847; Ark. 238.

10 Jas. Nimmo and Jas. Forsyth,
5 Rob. Clark or Williamson, H.C., March 13th 1839 : 2 Swin.
Glasgow, Dec. 23d 1829 ; Shaw 215. 338 and Bell's Notes 165.

6 Thos. Innes and John M.Ewan, 11 Hume ii. 140, case of Smith
H.C., Feb. 28th 1831; Shaw 238 and there.
Bell's Notes 165 and 3 S. J. 336. 12 Rob. Edward, H.C., Dec. 7th

7 Hume ii. 139, 140, cases of 1829; Shaw 229.-Will. Haire,
Nairne and Ogilvy : Gilkie : and Feb. 1829; Bell's Notes 165.

Court may prevent public cation.



The pro

A criminal diet is peremptory, and

and cannot DIET PEREMPbe called even of consent before the date in the citation (1) If not called or continued on that Diet not called. date the instance falls (2), whether the diet be the original or an adjourned diet (3). The diet can only be continued by an entry in the Record (4). Judges of the Supreme Court may continue diets without a formal sitting of Court (5). Though the diet be not called on the day in the citation, this does not make another libel incompetent, whether the diet was a first or an adjourned diet (6). If at the calling, neither Neither (


appearing, the prosecutor nor the accused appear, the libel falls, and no sentence of fugitation can pass (7). secutor must be personally in Court, or the case cannot proceed, but he may account for his absence by deputy, and the Court, if satisfied, may adjourn the diet (8), or if not satisfied, desert it (9). Only the Lord Advocate may appear by deputy (10). The sovereign, by special mandate, may appoint persons to proceed with prosecutions already raised, where the necessity arises (11). And the Court of Justiciary, where a Lord Advocate Prosecutor has resigned, and his successor has not been appointed, pointed may appoint an Advocate Depute to prosecute cases already instituted (12). In the case of a prosecution by One person a corporate body, one may, by warrant and commission for corporate of the whole prosecutors, appear for all (13).

specially ap

If body.

1 Hume ii. 263, and case of Wilson in note a.- Alison ii. 343.

2 Hume ii. 263, 264.-Alison ii. 343, 344.

3 Maloney V. Jeffrey, H.C., Jan. 22d 1840 ; 2 Swin. 485 and Bell's Notes 123 and 227.

4 Hume ii. 263.-Alison ü. 343, 344.

5 Hume ii. 264.-Alison ii. 344.

6 Edward Tabram, H.C., May 23d 1872; 2 Couper 259 and 44 S. J. 416 and 9 S.L.R. 469.

7 Hume ii. 265.-Alison ii. 344.

8 Hume ii. 266, 267, and cases of Monteith and Wright: Gordon and others: Gillies: and Smith and others there.—Alison ii. 345, 346.

9 Hume i. 267 and case of Couhoun and Buntine there.

10 Hume ii. 267.- Alison ii. 346.

11 Hume ii. 268.- Alison ii. 346, 347.

12 Daniel Campbell H.C., Dec. 14th 1868 ; 1 Couper 182.

13 Hume ü. 268, case of Mathie there.--Alison ii. 347.


there are several prosecutors, one having a distinct interest may go on, though the others fail to appear (1).

In the Supreme Court, where the prosecutor appears, but the accused fails to appear after his name has been publicly called in Court and at the door, and no one appears for him and accounts satisfactorily for his absence, the trial cannot proceed (2), but fugitation is pronounced, by which he is deprived of all personal privilege or benefit by law (3). And the Court will require strong evidence of inability to attend before they will refrain from sentence of fugitation (4). If he is out on bail his bail-bond is also forfeited. A foreigner who has not been arrested cannot be fugitated (5). An inferior Court cannot pronounce sentence of outlawry (6), but may forfeit the bail-bond. The forfeiture may competently be declared after the Protection from desertion of the diet (7). Where the accused is under

civil diligence.

civil diligence, the Court will grant him a protection to enable him to appear (8).


Forfeiture of bail-bond.

No objection pleadable in

No objections can be pleaded by the accused's proabsence except curator in his absence, except those applicable to the

to citation.

citation (9).

But even this will not be allowed if it Mandate where be shown that the accused has left the kingdom,

accused abroad.

unless a mandate from him be produced (10) or the Court be satisfied that he has not left permanently (11). The accused's cautioner cannot plead objections to the


cautioner can only object to forfeiture of bond.

1 Hume ii. 268, 269.-Alison ii. 348.

2 Hume ii. 269.

3 Hume ii. 270, 271.- Alison ii. 349, 350.

4 Alison ii. 349, 350, and case of
Davidson there-Mary Ritchie or
Alcock, Perth, April 23d 1857; 2
Irv. 615 and 29 S. J. 344.

5 Hume ii. 50-ii. 57.

6 Hume ii. 69.

7 Morrison v. Monro, H.C., Dec.

16th 1854; 1 Irv. 599 and 27 S. J. 78.

8 Rob. Young, H.C., May 30th 1831; Shaw 243.

9 Hume ii. 271, 272.-Alison ii. 352.-Rob. Lacy, Perth, April 13th 1837; 1 Swin. 493.

10 John Forrest, Stirling, April 19th 1823; Shaw 103.-John Laird, H.C., Feb. 19th 1838; 2 Swin. 26.

11 Jas. Anderson, July 18th 1834 Bell's Notes 229.


specified time.

citation in bar of fugitation (1). He can only object DIET PEREMPto forfeiture of bail-bond (2).

At the calling of the diet, if there be cause for delay, ADJOURNMENT. the diet may be continued to any fixed time, the Clerk of Court recording the adjournment. But all adjournments must be to a specified day (3). It is in all Must be to cases in the discretion of the Court to grant or refuse delay (4), and it requires strong grounds to justify it. The mere fact that the case is complicated, and the list of witnesses long, is not a sufficient ground for asking delay (5). The absence of a material witness (6) or Witness absent the recent discovery of important evidence (7) has discovered. been held sufficient. The fact that a witness has Refusal of refused to be precognosced is not ground for delay (8), precognosced and the Court will not grant delay because a witness is absent, if the party himself has not used means to have him in attendance (9). Delay is sometimes Inspection of allowed to enable the accused to inspect an article to which he has not had previous access. (10).

The prosecutor, if not prepared to go to trial, may DIET. move the desertion of the diet pro loco et tempore, and Desertion is this is usually granted, but it is not a privilege of the of Court. prosecutor, and is entirely in the discretion of the

witness to be



in discretion

1 Will. Smith, Glasgow, Sept. 15th 1836 ; 1 Swin. 301.

2 Will. Cook, H.C., July 16th 1832 ; 5 Deas and Anderson 513 and 4 S. J. 593.-H. M. Advocate, Petitioner v. Jas. Laird, H.C., July 18th 1838; 2 Swin. 178.

3 Hume ii. 275.- Sarah Anderson or Fraser and James Fraser, H.C., June 1st 1852 ; 1 Irv. 1 and 24 S.J. 491 and 1 Stuart 806.

4 Robertson v. the Duke of Athole, H.C., Oct. 25th 1869; 1 Couper 348 and 42 S.J. 28 and 7 S.L.R. 15. Anderson v. Allan, H.C., March 7th 1868; 1 Couper 4 and 40 S.J. 291 and 5 S.L.R. 366.

5 Will. Rodger, H.C., June 8th 1868 ; 1 Couper 76. This point is

not mentioned in the reports in the
Jurist and Law Reporter.

6 Gardner Niven, Dumfries, Sept.
14th 1858 ; 3 Irv. 204.-Will. H.
Thomson, H.C., July 10th and 15th
and Aug. 17th 1871 ; 2 Couper 103.

7 Alex. Fletcher, H.C., March 12th 1847; Ark. 232.-Will. Wallace, Perth, Oct. 12th 1855; 3 Irv. 252 and 31 S.J. 31.

8 Alex. Fletcher, H.C., March 12th 1847 ; Ark. 232.

9 Donald Stewart and others, Inverness, Sept. 14th 1837 ; 1 Swin. 540.

10 See Hume ii. 388, case of Muir in note 3.-See also Jane Macpherson or Dempster, H.C., Jan. 13th 1862; 4 Irv. 143 and 34 S.J. 140.

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