fatal (1). CEDURE AT unless dispensed The proof must be reduced to writing, un- FORMS OF PROless this be dispensed with or forbidden by statute. TRIAL Even the consent of the accused does not prevent the Proof written operation of this rule (2). And where a prosecution with by statute. takes place under the Summary Procedure Act, under which no record of the evidence is necessary, a record must be kept in those cases as to which by other statutes a right of appeal is given, if the Court be moved by either of the parties to keep such record (3). And such motion is essential to make it competent to refer to any notes taken by the magistrates, if the case is appealed (4). punishment. The powers of the prosecutor as to restriction of Restriction of punishment in summary cases are not clearly defined (5). Where the Court before whom a charge is brought cannot pronounce the full statutory sentence, it would appear that to found a jurisdiction, the prosecutor must restrict his demand for punishment upon the face not change of the libel (6). But in no case can the prosecutor Restriction must make a restriction which not merely limits punishment, character of but truly changes the character of his case (7). case. An important erasure in a conviction will nullify Erasure. it (8), but not mere interlineations or the like (9). Conviction made Convictions should not be written out and signed after removed. 1 Stewart v. Boyd, H.C., Dec. 13th 1855; 2 Irv. 327 and 28 S. J. 104. 2 Penman v. Watt, H.C., Nov. 24th and 25th 1845; 2 Broun 586. -Philips and Ford v. Cross, H.C., Dec. 20th 1848; J. Shaw 139.Christie v. Adamson, Perth, Oct. 1st 1853; 1 Irv. 293. 3 Halliday v. [Bathgate, H.C., June 1st 1867; 5 lrv. 382 and 39 S. J. 446 and 4 S. L. R. 65, overruling the case of Oldham v. Bathgate, Jedburgh Spring Circuit 1875; 5 Irv. 387, note. 4 Johnston v. Robson, H.C., May 25th 1868; 1 Couper 41 and 40 S. J. 5 Sharp or M'Ewan v. Procurator 6 Hume ii. 60, case of Russell in note a. 7 Young v. Scott, H.C., July 4th 1864; 4 Irv. 541. 8 Rodger v. Magistrates of Pittenweem, H.C., Nov. 22d 1847; Ark. 393. Clarkson v. Muir, H.C., July 19th 1871; 2 Couper 125 and 43 S. J. 589 and 8 S. L. R. 681. 9 Lochrie v. Molison, H.C., June 21st 1854; 1 Irv. 506 and 26 S. J. out after accused FORMS OF PRO CEDURE AT the accused has been removed from Court (1), though this is done in practice. A conviction signed in absence of the parties three days after the date it bore was quashed (2). But where a short interlocutor was signed in presence of the accused, and a complete and formal conviction afterwards drawn up, the Court sustained the conviction (3). Also where a conviction had been blundered, but a correct one was substituted for it, and the blundered one was never issued, the procedure was declared to be regular (4). But an illegal sentence having been pronounced, and the illegal part deleted after extract, the whole conviction was quashed (5). Where a statute requires that the conviction shall " specify the offence," a conviction which fails to do so sufficiently will be set aside (6). The names of the Justices need not be inserted in the conviction under the Summary Procedure Act (7). The proceedings in a summary conviction must show whether it was pronounced on a plea of "guilty" or Where imprison on proof led (8). A Sheriff acting on a complaint under Rae's Act (9), cannot sentence to imprisonment for two periods of sixty days, one on failure to pay a fine, and the other on failure to find security (10), nor sentence the accused to the statutory imprisonment, in default of payment of expenses (11). Specification in conviction. Conviction on plea or proof. ment fixed sen tence to two periods illegal. 1 See Gray v. Macgill, H.C., Feb. 27th 1858; 3 Irv. 29 and 30 S. J. 511. 2 M'Allister v. Cowan, H. C., May 24th and July 16th 1869; 1 Couper 302 and 41 S. J. 604. 3 Hume v. Meek, H.C., July 13th 1846; Ark 88. 4 Forbes v. Duncan, H.C., Nov. 20th 1865; 5 Irv. 213 and 38 S. J. 47 and 1 S. L. R. 36. 5 M'Donagh v. Ross, H.C., May 24th and 29th 1869; 1 Couper 299. 6 M'Innerey v. Simpson, Dec. 6th 1841; 2 Swin. 590 and Bell's Notes 123.-Duff v. Simpson, H.C., Dec. 6th 1841; 2 Swin. 615 and Bell's Notes 123. 7 Carruthers and others v. Jones, H.C., June 1st 1867; 5 Irv. 398 and 39 S. J. 448 and 4 S. L. R. 68 and 70. 8 Scott v. Sinclair, H.C, Dec. 19th 1857; 2 Irv. 745 and 30 S. J. 193.-See also Gray v. Macgill, H.C., Feb. 27th 1858; 3 Irv. 29 and 30 S. J. 511. 9 Act 9 Geo. IV. c. 69. 10 Fairbairn v. Drummond, H.C., March 12th 1836; 1 Swin. 85 and Bell's Notes 152. 11 Gilchrist v. Procurators Fiscal of Perthshire, H.C., July 15th 1843; 1 Broun 570 and Bell's Notes 152. CEDURE AT Unless otherwise provided by Statute, two Justices FORMS OF PROare necessary to constitute a Justice of Peace Court, TRIAL. and both should sign the deliverances and convic- J. P. Court. tions (1), although in matters of general procedure, when there is a plurality of Justices, one may sign as Preses, adding P. after his name (2). And one Justice may sign interlocutors of adjournment under the Summary Procedure Act, in cases where the trial must be before two Justices (3). If a deliverance is signed by a quorum, it is not a good objection that another person signed who was not qualified (4). A conviction will be inept if any of the magistrates who pronounced it were not present at the proof (5). follow statutory use their own Sheriffs acting summarily may follow any special Sheriffs may form of procedure provided by Statute (6); but where procedure or a Statute confers a summary jurisdiction upon the forms. Sheriff and other magistrates, the Sheriff need not follow the forms prescribed, but may adhere to the forms of his own Court (7). 1 Giles v. Baxter, H.C., March 15th 1849; J. Shaw 203 (this point is not in the rubric.)-Lock and Doolen v. Steel, H.C., Feb. 6th 1850; J. Shaw 307.-Williamson v. Thompson, H.C., Nov. 29th 1858; 3 Irv. 295 and 31 S. J. 34.-Birrell v. Jones, H.C., Feb. 27th 1860; 3 Irv. 556. 2 Rankin and others v. Alexander, H.C., Feb. 15th 1836; 1 Swin. 44.-Birrell v. Jones, H.C., Feb. 27th 1860; 3 Irv. 556. (See opinions of the judges.) 3 Carruthers and others v. Jones, H.C., June 1st 1867; 5 Irv. 398 and 39 S. J. 448 and 4 S. L. R. 68 and 70. 4 M'Creadie v. Murray, H.C., March 22d 1862; 4 Irv. 176 and 34 S. J. 468. This might not hold if 5 Russell v. Lang, H.C., June 1st 6 Knox v. Ramsay, H.C., July 7th 1837; 1 Swin. 517 and Bell's Notes 120. Neil v. Procurator Fiscal of Stirlingshire, H.C., May 19th 1834; Bell's Notes 151. 7 Shields v. Dykes, H.C., Feb. 2d 1854; 1 Irv. 359 and 26 S. J. 212.Clapperton v. Rodger, H.C., Dec. 3d 1855; 2 Irv. 292 and 28 S. J. 51. RESPITE. Time. Court of Justiciary. Crown. Removal of sick convict from prison. PROCEDURE AFTER TRIAL REVIEW, PARDON, &c. Where a sentence of death or corporal pain is not executed at the time fixed, and there is no formal sist, it cannot be afterwards enforced (1). The Court of Justiciary may grant a respite, and fix a later day for execution where they see fit, either because of circumstances emerging, such as the escape of the convict, or forcible prevention of the execution, or for the purpose of giving time for an answer to an appeal or petition for mercy or the like (2). The Sovereign may order a respite for a fixed period, or until notification of the Royal pleasure (3). The High Court issue the necessary orders for carrying out the Royal respite. respite does not entitle the convict to liberation on bail (4). A The death of the prosecutor before the sentence is put in execution does not prevent its being carried out (5). Where a convict is in bad health, the High Court may order his removal to a more healthy prison (6), or to any other place, in such custody or under such caution as they may think proper, under certification 1 Hume ii. 475, 476, and cases of Fleming, Graham, and Dickson there.-Alison ii. 659. 2 Hume ii. 473, 474, and cases of Rodger Langlands: Robertson: and Tenant there, and cases of Rigelson Stewart and Lawrie in note 1.-Alison ii. 657, 658.-Chas. Maclaren and others, H.C., Feb. 10th 1823; Shaw 95. 3 Hume ii. 501.-Alison ii. 679. 4 Hume ii. 501.-Alison ii. 679. 5 Morton V. Johnston and others, H.C., March 11th 1867; 5 Irv. 356 and 39 S. J. 293 and 3 S. L. R. 294. 6 John Robb, H.C., Nov. 9th 1831; Bell's Notes 301.- See also Menie or Marion Gilbert, Aberdeen, April 15th 1842; 1 Broun 258, note, p. 250 and Bell's Notes 301. in the latter case of returning to prison on recovery to RESPITE. complete the period of sentence (1). AT LARGE. Where a convict is found at large without lawful CONVICT FOUND excuse before expiry of sentence, the High Court may, Convict at large. on the petition of the prosecutor, and on proof of the prisoner's identity, if disputed, ordain his removal to undergo the remaining portion of his sentence (2). AND SUSPENSION. There are three modes of review of proceedings in ADVOCATION inferior Courts (3), Advocation, Suspension, and Appeal. The first is properly applicable to cases where review is sought, either by the prosecutor or the accused, of a decision pronounced in the preliminary part of a prosecution (4). Thus, where the petty Judge improperly dismisses a complaint as irrelevant (5), or declines to pronounce judgment (6), or dismisses a complaint but does not award expenses (7), advocation is competent. But advocation of an interlocutor in a Sheriff Court case finding the libel relevant is not competent (8). And advocation of a judgment of Quarter Sessions sustaining the competency of an appeal is also incompetent until they have actually overstepped 1 Hume ii. 478, and case of Fisher there, and cases of Frazer: Macfarlane and Bramwell in notes.2 and * -Alison ii. 663.-John Gorrie and others, Perth, April 13th 1836; 1 Swin. 175.- Jas. Thompson or Smart, Jan. 19th and Feb. 4th 1833; Bell's Notes 163. 2 Hume ii. 145, cases of Turnbull and Tenant in note 2, and case of Forest in note a.-Jas. M'Neil or Mathieson, H.C., March 12th 1836; 1 Swin. 88 and Bell's Notes 168.-Hugh M'Meiken, H.C., Feb. 6th 1837; 1 Swin. 428 and Hell's Notes 167.-Will. Hutton, H.C., June 13th 1837; Bell's Notes 166.-John Hunter, H.C., Feb. 3d 1840; Bell's Notes, 168.-John Blair, H.C., July 28th 1845; 2 Broun 463.-Alison's statement is rather misleading, as indicating that such a question should always 3 No review of the procedure of 4 Hume ii. 509, et seq., passim.— Alison ii. 26, 27. 5 Kinnoull (Earl of) v. Tod, H.C., Dec. 15th 1859; 3 Irv. 501. (This point is not in the rubric.) 6 Smith v. Kinnoch, H.C., Feb. 7th 1848; Ark. 427. 7 Prentice and Newbigging v. Bathgate, H.C., June 19th 1843; 1 Broun 561 and Bell's Notes 140. 8 Jamieson v. Lothian, H.C., Dec. 3d 1855; 2 Irv. 273 and 28 S. J. 49. |