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protest for reprobator, before the witness is examined; i. e, that he may be afterwards allowed to bring evidence of his enmity, or other instability. Reprobator is competent even after sentence, where protestation is duly entered; but in that case, the party insisting must consign L. 100 Scots, which he forfeits if he succumb. This action must have the concurrence of the King's Advocate, because the conclusion of it imports perjury; and for this reason, the witness must be made a party to it.
15. The interlocutory sentence or warrant, by which parties are authorised to bring their proof is either by way of act, or of incident diligence In an act, the Lord Ordinary who pronounces it, is no longer judge in the process; but in an incident diligence, which is commonly granted upon special points, that do not exhaust the cause, the Lord ordinary continues judge. If a witness does not appear at the day fixed by the warrant of citation, a second warrant is granted of the nature of a caption, containing a command to messengers to apprehend and bring him before the court. Where the party to whom a proof is granted, brings none within the term allowed by the warrant, an interlocutor is pronounced, circumducing the term, and precluding him from bringing evidence thereafter. Where evidence is brought, if it be upon an act, the Lord Ordinary on the acts, after the term for proving is elapsed, declares the proof concluded, and thereupon a state of the case is prepared by the Ordinary on concluded causes, which must be judged by the whole Lords; but if the proof be taken upon an incident diligence, the import of it may be determined by the Lord Ordinary in the cause.
16. Where facts do not admit a direct proof, presumptions are received as evidence which, in many cases, make as convincing a proof as the direct. Presumptions are consequences deduced from facts known or proved, which infer the certainty, or at least a strong probability, of another fact to be proved. This kind of probation is therefore called artificial, because it requires a reasoning to infer the truth of the point in question, from the facts that already appear in proof. Presumptions are either, 1. juris et de jure; 2. juris; or 3, hominis or judicis.
The first sort obtains, where statute or custom establishes the truth of any point upon a presumption; and it is so strong, that it rejects all proof that may be brought to elide it in special cases. Thus, the testimony of a witness, who forwardly offers himself without being cited, is, from a preemption of his partiality, rejected, let his character be ever so fair; and thus also, a minor, because he is by law presumed incapable of conducting his own affairs, is, upon that presumption, disabled from acting without the consent of his curators, though he should be known to behave with the greatest prudence. Many such presumptions are fixed by statute.
17. Præsumptiones juris are those, which our law-books or decisions have established, without founding any particular consequence upon them, or statuting super præ-
sumpto. Most of this kind are not proper presumptions inferred from positive facts, but are founded merely on the want of a contrary proof; thus, the legal presumptions for freedom, for life, for innocence, &c are in effect so many negative propositions, that servitude, death, and
guilt, are not to be presumed, without evidence brought by him who makes the allegation. All of them, whether they be of this sort, or proper presumptions, as they are only conjectures formed from what commonly happens, may be elided, not only by direct evidence, but by other conjectures, affording a stronger degree of probability to the contrary. Præsumptiones hominis or judicis, are those which arise daily from the circumstances of particular cases; the strength of which is to be weighed by the judge.
18. A fictio juris differs from a presumption. Things are presumed, which are likely to be true; but a fiction or law assumes for truth what is either certainly false, or, at least, is as probably false as true. Thus, an heir is feigned or considered in law as the same person with his ancestor. Fictions of law must, in their effects, be always limited to the special purposes of equity, for which they were introduced; see an example, Tit. xxx. 3.
Tit. 32. Of Sentences and their Execution.
PROPERTY would be most uncertain, if debateable points might, after receiving a definitive judgment, be brought again in question, at the pleasure of either of the parties: Every state has therefore affixed the character of final to certain sentences or decrees, which in the Roman law are called res judicatæ, and which exclude all review or rehearing.
2. Decrees of the court of Session, are either in foro contradictorio, where both parties have litigated the cause, or in absence of the defender. Decrees of the Session in foro cannot, in the general case, be again brought under the review of the court, either on points which the parties neglected to plead before sentence (which we call competent and omitted), or upon points pleaded and found inefficient (proponed and repelled.) But decrees, though in foro, are reversible by the court, where either they labour under essential nullities; e. g. where they are ultra petita, or not conformable to their grounds and warrants, or founded on an error in calcul, &c.; or where the party against whom the decree is obtained has thereafter recovered evidence efficient to overturn it, of which he knew not before.
3. As parties might formerly reclaim against the sen— tences of the session, at any time before extracting the decree, no judgment was final till extract; but now, a sentence of the inner-house, either not reclaimed against within six sederunt days after its date, or adhered to upon a reclaiming bill, though it cannot receive execution till extract, makes the judgment final as to the court of Session. And, by an order of the house of Lords, March 24. 1725, no appeal is to be received by them from sentences of the Session after five years from extracting the sentence; unless the person entitled to such appeal be minor, clothed with a husband, non compos mentis, imprisoned, or out of the kingdom. Sentences pronounced by the Lord Ordinary have the same effect, if not reclaimed against, as if they were pronounced in presence; and all petitions against the interlocutor of an Ordinary must be preferred within eight sederunt days after signing such interlocutor.
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4. Decrees, in absence of the defender, have not the force of res judicatæ as to him; for where the defender does not appear, he cannot be said to have subjected himself by the judicial contract which is implied in litiscontestation: A party therefore may be restored against these, upon paying to the other his costs in recovering them. The sentences of inferior courts may be reviewed by the court of Session, before decree, by advocation, and after decree, by suspension or reduction; which two last are also the methods of calling in question such decrees of the Session itself as can again be brought under the review of the court.
5. Reduction is the proper remedy, either where the decree has already received full execution by payment, or where it decrees nothing to be paid or performed, but simply declares a right in favour of the pursuer. Suspension is that form of law by which the effect of a sentence condemnatory, that has not yet received execucution, is stayed or postponed, till the case be again considered. The first step towards suspension is a bill preferred to the Lord Ordinary on the bills. This bill, when the desire of it is granted, is a warrant for issuing letters of suspension which pass the signet; but, if the presenter of the bill shall not, within fourteen days after passing it, expedite the letters, execution may proceed on the sentence. Suspensions of decrees in foro cannot pass, but by the whole Lords in time of session, and by three in vacation time: but other decrees may be suspended by any one of the judges.
6. As suspension has the effect of staying the execution of the creditor's legal diligence, it cannot, in the general case, pass without caution given by the suspender to pay the debt, in the event it shall be found due. Where the suspender cannot, from his low or suspected circumstances, procure unquestionable security, the Lords admit juratory caution, i. e. such as the suspender swears is the best he can offer; but the reasons of suspension are, in that case, to be considered with particular accuracy at passing the bill. Decrees in favour of the clergy, of universities, hospitals, or parish school masters, for their stipends, rents, or salaries, cannot be suspended, but upon production of discharges, or on consignation of the sums charged for. A charger, who thinks himself secure without a cautioner, and wants dispatch, may, where a suspension of his diligence is sought, apply to the court to get the reasons of suspension summarily discussed on the bill.
7. Though he, in whose favour the decree suspended is pronounced, be always called the charger, yet a decree may be suspended before a charge be given on it. Nay, suspension is competent even where there is no decree, for putting a stop to any illegal act whatsoever: Thus, a building, or the exercise of a power which one assumes unwarrantably, is a proper subject of suspension. Letters of suspension are considered merely as a prohibitory diligence; so that the suspender, if he would turn provoker, must bring an action of reduction. If upon discussing the letters of suspension, the reasons shall be sustained, a decree is pronounced, suspending the tetters of diligence on which the charge was given simpliciter; which is called a decree of suspension, and takes off the effect of the decree sus-
pended. If the reasons of suspension be repelled, the court find the letters of diligence orderly proceeded, i.e. regularly carried on; and they ordain than to be put to farther execution.
8 Decrees are carried into execution, by diligence, either against the person, or against the estate of the debtor. The first step of personal execution is by letters of horning, which pass, by warrant of the court of Session, on the decrees of magistrates of boroughs, sheriffs, admirals, and commissaries. If the debtor does not obey the will of the letters of horning within the days of the charge, the charger, after denouncing him rebel, and resisting the horning, may apply for letters of caption, which contain a command, not only to messengers, but to magistrates, to apprehend and imprison the debtor. All messengers and magistrates, who refuse their assistance in executing the caption, are liable subsidarie for the debt; and such subsidiary action is supported by the execution of the messenger employed by the creditor, expressing that they were charged to concur, and would not. Letters of caption contain an express warrant to the messenger, in case he cannot get access, to break open all doors, and other lock fast places.
9 Law secures peers, married women, and pupils, against personal execution by caption upon civil debts. No caption can be executed against a debtor within the precincts of the King's palace of Holyroodhouse: But this privilege of sanctuary afforded no security to criminals, as that did which was, by the canon law, conferred on churches and religious houses. Where the personal presence of a debtor, under caption, is necessary in any of our supreme courts, the judges are empowered to grant him a protection, for such time as may be sufficient for his coming and going, not exceeding a month.
10. After a debtor is imprisoned, he ought not to be indulged the benefit of the air, not even under a guard; for creditors have an interest, that their debtors be kept under close confinement, that, by the squalor carceris, they may be brought to pay their debt: And any magistrate or jailor, who shall suffer the prisoner to go abroad, without a proper alteration, upon oath, of the dangerous state of his health, is liable subsidarie for the debt. Magistrates are in like manner liable, if they shall suffer a prisoner to escape, through the insufficiency of their prison: But, if he shall escape under night, by the use of instruments, or by open force, or by any other accident which cannot be imputed to the magistrates or jailor, they are not chargeable with the debt; provided they shall have, immediately after his escape, made all possible search for him. Regularly, no prisoner for debt upon letters of caption, though he should have made payment, could be released without letters of suspension, containing a charge to the jailor to set him at liberty; because the creditor's discharge could not take off the penalty incurred by the debtor for contempt of the King's authority: But to save unnecessary expence to debtors in small debts, jailors are empowered to let go prisoners where the debt does not exceed 200 marks Scots, upon production of a discharge, in which the creditor consents to his release.
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11. Our law, from a consideration of compassion, allows insolvent debtors to apply for a release from prison, upon a cessio bonorum, i.e. upon their making over to the creditors all their estate, real and personal. This must be insisted for, by way of action, to which all the creditors of the prisoner ought to be made parties. The prisoner must, in this action, which is cognisable only by the court of Session, exhibit a particular inventory of his estate, and make oath that he has no other estate than is therein contained, and that he has made no conveyance of any part of it, since his imprisonment, to the hurt of his creditors. He must also make oath, whether he has granted any disposition of his effects before his imprisonment, and condescend on the persons to whom, and on the cause or granting it; that the court may judge, whether, by any collusive practice, he has forfeited his claim to liberty.
12. A fraudulent bankrupt is not allowed this privilege; nor a criminal who is liable in an assythment or indemnification to the party injured or his executors, though the crime itself should be extinguished by a pardon. A disposition granted on a cessio bonorum is merely in farther security to the creditors, not in satisfaction or in solutum of the debts. If therefore, the debtor shall acquire any estate after his release such estate may be attached by his creditors, as if there had been no cessio, except in so far as is necessary for his subsistence. Debtors, who are set free on a cessio bonorum, are obliged to wear a habit proper to dyvours or bankrupts The Lords are prohibited to dispense with this mark of ignominy, unless, in the summons and process of cessio, it be libelled, sustained, and proved, that the bankruptcy proceeds from misfortune And bankrupts are condemned to submit to the habit, even where no suspicion of fraud lies against them, if they have been dealers in an illicite trade.
13. Where a prisoner for debt declares upon oath, before the magistrate of the jurisdiction, that he has not wherewith to maintain himself, the magistrate may set him at liberty, if the creditor, in consequence of whose diligence he was imprisoned, does not aliment him within ten days after intimation made for that purpose. But the magistrate may, in such case, detain him in prison, if he chuses to bear the burden of the aliment, rather than release him. The statute authorising this release, which is usually called the act of grace, is limited to the case of prisoners for civil debts.
14. Decrees are executed against the moveable estate of the debtor by arrestment of poinding; and against his heritable estate, by inhibition, or adjudication. If one be condemned, in a removing or other process, to quit the possession of lands, and refuses, notwithstanding a charge, letters of ejection are granted of course, ordaining the sheriff to eject him; and to enter the obtainer of the decree into possession. Where one opposes by violence the execution of a decree, or of any lawful diligence, which the civil magistrate is not able by himself and his officers to make good, the execution is enforced manu militari.
15. A decree-arbitral, which is a sentence proceeding on a submission to arbiters, has some affinity with a ju-
dicial sentence, though in most respects the two differ. A submission is a contract entered into, by two or more parties who have disputable rights or claims, whereby they refer their differences to the final determination of an arbiter or arbiters, and oblige themselves to acquiesce in what shall be decided. Where the day within which the arbiters are to decide, is left blank in the submission, practice has limited the arbiters power of deciding to a year. As this has proceeded from the ordinary words of style, empowering the arbiters to determine betwixt and the day of next to come; there-
fore, where a submission is indefinite, without specifying any time, like all other contracts or obligations, it subsists for forty years. Submissions, like mandates, expire by the death of any of the parties-submitters before sentence. As arbiters are not vested with jurisdiction, they cannot compel witnesses to make oath before them, or havers of writings to exhibit them; but this defect is supplied by the court of Session, who, at the suit of the arbiters, or of either of the parties, will grant warrant for citing witnesses, or for the exhibition of writings. For the same reason, the power of arbiters is barely to decide; the execution of the decree belongs to the judge. Where the submitters consent to the registration of the decree-arbitral, performance may be enforced by summary diligence:
16. The power of arbiters is wholly derived from the consent of parties. Hence, where their powers are limited to a certain day, they cannot pronounce sentence after that day Nor can they subject parties to a penalty higher than that which they have agreed to in the submission. And where a submission is limited to special claims, sentence pronounced on subjects not specified in the submission is null, as being ultra vires compromissi.
17. But, on the other part, as submissions are designed for a most favourable purpose, the amicable composing of differences, the powers thereby conferred on arbiters receive an ample interpretation. Decrees-arbitral are not reducible upon any ground, except corruption, bribery, or falsehood.
Tit. 26. Of Crimes.
THE word crime, in its most general sense, includes every breach, either of the law of God, or of our Country; in a more restricted meaning, it signifies such transgressions of law as are punishable by courts of justice. Crimes were, by the Roman law, divided into public and private. Public crimes were those that were expressly declared such by some law or constitution, and which, on account of their more atrocious nature and hurtful consequences, might be prosecuted by any member of the community. Private crimes could be pursued only by the party injured, and were generally punished by a pecuniary fine to be applied to his use. By the law of Scotland no private party, except the person injured, or his next of kin, can accuse criminally: but the King's Advocate, who in this question represents the community, has a right to prosecute all crimes in vindictam publicam, though the party injured should refuse to concur. Smaller offences, as petty riots, injuries, &c. which do not de-