684 



LAW: 



Who inad- 

 missible as 

 witnesses. 



I-** lence. Thus a bond is reducible ex dolo, on a proof by 

 ofStotUnd. witnesses. Lastly, All intromission by a creditor with 

 "" Y " the rents of his debtor's estate payable in grain, may 

 be proved by witnesses. 



29. No person whose near relation to another bars 

 him from being a judge in the cause, can be admitted 

 as a witness for him, but he may against him. For- 

 merly domestic servants and moveable tenants, i. e. te- 

 nants who have no written tacks, were disallowed, from 

 the presumed influence of their masters and landlords 

 over them ; but now our practice admits them. The 

 testimony of infamous persons is rejected, i. e. persons 

 who have been guilty of crimes that the law declares 

 infer infamy, or who have been declared infamous 

 by the sentence of a judge. Pupils are inhabile wit- 

 nesses, being in the judgment of law incapable of the 

 impression of an oath. The testimony of women was 

 formerly received -with reluctance, but it is now as ad- 

 missible as that of men, except in the single case of 

 acting as inslrumentary witnesses. 



30. Decrees of the court of session are either inforo 

 contradictorio, where both parties have litigated the 

 cause, or in absence of the defender. Decrees of the ses- 

 sion in faro 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 plead- 

 ed and found insufficient, (proponed and repelled.) 

 But decrees, though inforo, are reversible by the court, 

 where either they labour under essential nullities, e. %. 

 where they are ultra petita, or not conformable to their 

 grounds and warrants, or founded in an error in calcu- 

 lo, &c. or where the party against whom the decree is 

 obtained, has thereafter recovered evidence sufficient to 

 overturn it, of which he knew not before. 



31. The sentences of inferior courts may be review- 

 ed by tlie court of session before decree, by advocation, 

 an< * a ^ ter Decree ty suspension or reduction ; which 



LOT 



of Scotland. 



Decrees of 

 couit. 



ententes 

 of inferior 

 courts re- 

 vie 

 sessi 



as well as 

 its own de 

 crees. 



,11 <*iiw anci UBCKW uy &uj.eiisiuii tir rcuuutiuii , wuiv-n iuuge to moony. Dut wiicre in any ui uur ancient, 



sion, ' ast are a ' so tne methods of calling in question such de- i aws the life of the offender is put in the mercy or will 



contain a command not only to messengers, but to ma- 

 gistrates to apprehend and imprison the debtor. 



35. Our law, from a consideration of compassion, ^^ r 

 allows insolvent debtors to apply for a release from i"' oium _ 

 prison upon a cessio bonorum, i. e. upon their making 



over to their 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 par- 

 ties. A fraudulent bankrupt is not allowed this privi- 

 lege. 



36. Decrees are executed against the moveable estate Execution 

 of the debtor by arrestment or pofnding, and against against 

 his heritable estate by inhibition or adjudication, of all estate of 

 of which we have already spoken. Letters of poind- dcb 



ing as well as of horning, may be issued by warrant of 

 the court of session on the decrees of inferior judges. 



BOOK IV. 

 OF CRIMES. 



1 . By the law of Scotland no private party, except Who com- 

 the person injured, or his next of kin, can accuse cri- petent to " 

 minally : But the king's advocate, who in this question prosecution 

 represents the community, has a right to prosecute all of eril 

 crimes in vindiclam publicam, though the party injured 



should refuse to concur. 



2. Those crimes that are in their consequences most Punish- 

 hurtful to society, are punished capitally, or by death ; ment of 

 others escape with a less punishment, sometimes fix- crimes ei- 

 ed by statute, and sometimes arbitrary, i. e. left to the thcr capita^ 

 discretion of the judge, who may exercise his jurisdic- 

 tion either by fine, imprisonment, or a corporal punish- or arbitra- 

 ment. Where the punishment is left by law to the dis- "> 

 cretion of the judge, he can in no case extend it to 



death ; for where the law intends to punish capitally, 

 it says so in express words, and leaves no liberty to the 

 judge to modify. But where in any of our ancient 



crees of the session itself as can again be brought under 

 the review of the court. 

 . 32. Reduction is the proper remedy, either where the 



Reduction, decree has already received full execution by payment, 

 or where it ordains nothing to be paid or performed, 

 but simply declares a right in favour of the pursuer. 



Suspension. Suspension is that form of law by which the effect of a 

 sentence-condemnatory that has not yet received exe- 

 cution, is stayed or postponed till the cause be again 

 considered. If the reasons of suspension be repelled, 

 the court find the letters of diligence orderly proceeded. 



of the king, it is probable that the judge, in place of 

 pronouncing sentence himself, left it to the sovereign, 

 who inflicted sometimes a capital, and sometimes a less 

 punishment on the person guilty, according to his 

 demerit. The single escheat of the criminal falls on Capita! 

 conviction in all capital trials, though the sentence should " m . cs '| 

 not express it ; for if the bare non-appearance in a cri- c ^jhea!' 

 minal prosecution draws this forfeiture after it, much 

 more ought the being convicted of a capital crime to 

 infer it. 





Appeal to 

 House of 

 Lords. 



, .3. Certain crimes are committed more immediately Crimes 



*'. e. regularly carried on; and they ordain them to be against God himself, others against the stale, and a third against re- 

 put to farther execution. kind against particular persons. The chief crime in the ''S' " * 

 33. An appeal lies in the last resort to the House of first class, cognizable by temporal courts, is blasphemy, Blasphemy. 



Within 

 what time 



Lords ; and by an order of that house, 24th March 

 1725, no appeal is to be received by them from senten- 

 ces of the session, after five years from extracting the 

 sentence, unless the person entitled to such an appeal 

 >etent ^ e mmor > clothed with a husband, non compos mentis, 

 imprisoned, or out of the kingdom. 



_ 34. 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 let- 

 ters of horning, which are granted by warrant of the 

 court of session, not only on their own decrees, but on 

 those of magistrates of boroughs, sheriffs, admirals, and 



Execution 

 of decrees. 



Personal 

 execution 

 of dili- 

 gence. 



Letters of 

 horning. 



Letters of 

 Caption. 



under which may be included atheism. This crime 

 consists in the denying or vilifying the Deity by .speech 

 or writing. Blasphemers were punished capitally both 

 by the Jewish law, Lev. xxiv. 16, and by the Roman. 

 All who curse God, or any of the persons of the bless- 

 ed Trinity, are by our law, 1661, c. 21, to suffer death, 

 even for a single act ; and those who deny him, if they 

 persist in their denial. This act is ratified by 1693, c. 

 1 1, which also makes the denial of a Providence, or of 

 Holy Scriptures, criminal; and 



the authority of the 

 punishable capitally for the third offence. 

 4. Some crimes against the stale are levelled directly Crimes . 



commissaries. If the debtordoes not obey the will of against the supreme power, and strike at the constitu- against the 

 the letters of horning within the days of the charge, tion itself; others discover such a contempt of law as st 

 the charger, after denouncing him rebel, and register- tends to baffle authority, or slacken the reins of govern- 

 ing the horning, may apply for letters of caption, which ment. Treason, crimtn majestatit, is that crime which 



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