PREFACE TO THE FIRST EDITION.

THE valuable Treatises on the Office and Duties of a Justice of the Peace in Scotland, composed successively by Messrs Boyd, Hutchison, Tait, and Blair, having been in a great measure superseded by subsequent legislation, the want of a Work applicable to the existing laws has been for some time felt. It was suggested that

THE First Edition of this work having been disposed of, a Second has been called for. It has been carefully revised and extended, so as to embrace the changes in the law since the former publication. It is intended to carry down future alterations by Supplements.

PERTH, 16th March 1855.

THE JUSTICE'S DIGEST

OF THE

LAW OF SCOTLAND.

ABA-ABD

ABANDONING AN ACTION. A pursuer may abandon his action, even after the record has been closed, any time before final judgment, on paying expenses, but not otherwise; because after issue has been joined, the defender is entitled to insist on the pursuer proceeding to a decision. Before issue has been joined, prepayment is not a condition of abandonment, but decree goes out for the amount as taxed, to be recovered in the usual way. 14th Dec. 1831, Caledonian Foundry. In either case, the cause of action is not abandoned, but the process falls to be dismissed, and a new action is reserved-6 Geo. IV. c. 120, s. 10; Act of Sederunt, 11th July 1828. A minute abandoning an action must be ratified by the judge to give it effect. 2d Feb. 1849, Muir v. Barr. 21 Jur. 139.

ABANDONMENT is the relinquishment of the subject to the underwriters by the owners in the case of a loss constructively total-such as loss of the voyagegreat damage, leaving the subject of little value-high salvage-the articles saved not worth the freight. The owner has time to get correct information, and then he must forthwith abandon. 2d March 1853, Turner (H. of L.) 25 Jur. 274.

ABATEMENT, PLEAS IN, are in England similar to dilatory or preliminary pleas in Scotland, which may defeat an action, but leaves undetermined the cause or ground of that action. 7 Geo. IV. c. 64, s. 19, allows amendment of records in England.

ABBEY OF HOLYROODHOUSE. See Sanctuary.

ABBOT. The head of an abbey-had a seat in Parliament before the Reformation. Ersk. B. i.; T. 5, s. 4.

ABBREVIATE OF ADJUDICATION. An abridgment of the decree of adjudication, and which must be recorded within sixty days, to preserve its priority with other similar decrees. 1 and 2 Geo. IV. c. 38, s. 18. Ersk. B. ii.; T. 12, s. 26. ABDUCTION. In England by the Act 9 Geo. IV. c. 31, and in Ireland by 10 Geo. IV. c. 34, the abduction of an heiress, or other woman of property in possession or expectation, is felony, and punishable by imprisonment or transportation, and the marriage is declared invalid. The woman may be a witness against the man, though her husband. The same act renders it an offence the abduction of girls under sixteen years of age. In Scotland the crime was at one time capital, but now it is punished arbitrarily at common law. In one case (the M'Gregors, in 1752) the offender had sentence of fourteen years' transportation where an heiress of fifteen years of age was forcibly carried away and married.-An indictment was found

relevant charging the offence of carrying off a boy of fourteen years of age to concuss him into a marriage with the pannel's daughter-Sir Patrick Churnside, 1616. ABDUCTION OF VOTERS is a ground of objection to an election return of a member of Parliament.

ABETTOR-An instigator to crime who may be held as a principal, but more frequently an accessory.

ABEYANCE, in English law, applies to inheritances not vested but in expectation, and is analogous to the hæreditas jucens of the civil law adopted into that of Scotland.

ABIDING BY A DEED-An important step in a process of reduction, whereby the party founding on a deed challenged on the ground of forgery is bound judicially to abide or stand by it as genuine, under the penalty of the punishment of forgery. But the party may still liberate himself by proving facts to establish his good faith in the deed. Ersk. B. iv.; T. 4, s. 69.-1 Hume, 151.

ABJURATION, OATH OF-The several acts which enjoin this oath, and give the forms, are 1693, c. 6; 13 Will. III. c. 6 (1701); 1 Geo. I. c. 13 (1714); 9 Geo. I. c. 24; 10 Geo. I. c. 4; and 6 Geo. III. c. 53 (1760). The oath must be taken by, 1st, Persons holding offices civil or military; 2d, Peers, before voting in the election of Scotch peers, or taking their seats in the House of Lords; 3d, Members of Parliament (13 Will. III. c. 6); 4th, Judges; 5th, Advocates and legal practitioners; 6th, Members of colleges; 7th, Clergy of the Established Church; and 8th, Parochial schoolmasters. Quakers and Moravians may instead thereof make an affirmation— 8 Geo. I. c. 6 (1721); 6 Geo. III. c. 53 (1766); 3 and 4 Will. IV. c. 49 (1833). Roman Catholics are exempted from this oath; but such as are members of Parliament must make a declaration in room thereof-10 Geo. IV. c. 7 (1829). The following is the form of this oath, which, from the change of circumstances arising from the lapse of time, might now be safely dispensed with or greatly modified:—

I, A. B., do truly and sincerely acknowledge, profess, testify, and declare in my conscience, before God and the world, that our Sovereign Lady Queen Victoria is lawful and rightful Queen of this realm, and of all other her Majesty's dominions and countries thereunto belonging; and I do solemnly and sincerely declare, that I do believe in my conscience, that not any of the descendants of the person who pretended to be Prince of Wales, during the life of the late King James the Second, and since his decease pretended to be, and took upon himself the style and title of King of England, by the name of James the Third, or of Scotland by the name of James the Eighth, or the style and title of King of Great Britain, hath any right or title whatsoever to the Crown of this realm, or any other the dominions thereunto belonging; and I do renounce, refuse, and abjure any allegiance or obedience to any of them; and I do swear that I will bear faith and true allegiance to her Majesty Queen Victoria, and her will defend to the utmost of my power against all traitorous conspiracies and attempts whatsoever which shall be made against her person, crown, and dignity; and I will do my utmost endeavour to disclose and make known to her Majesty and her successors, all treasons and traitorous conspiracies which I shall know to be against her or any of them; and I do faithfully promise to the utmost of my power to support, maintain, and defend the succession of the Crown against the descendants of the said James, and against all other persons whatsoever; which succession, by an act entituled "An Act for the further limitation of the Crown, and better securing the rights and liberties of the subject," is and stands limited to the Princess Sophia, Electoress and Duchess-Dowager of Hanover, and the heirs of her body, being Protestants; and all these things I do plainly and sincerely acknowledge and swear, according to these express words by me spoken, and according to the plain and common sense and understanding of the same words, with

out any equivocation, mental evasion, or secret reservation whatsoever; and I do make this recognition, acknowledgment, abjuration, renunciation, and promise heartily, willingly, and truly, upon the true faith of a Christian. So help me God.

Note. It is well remarked in Mr Chitty's edition of Burn's Justice (vol. i. p. 250— "Perhaps it might be wished that the oath of abjuration were made more short and plain, there being in it several hard words which probably many who take it do not well understand, and there being an Act of Parliament therein referred to which perhaps not one in fifty who take it have consulted.”

By the Act 3 and 4 Will. IV. c. 49 (1833), the oath of abjuration is modified for Quakers and Moravians by the withdrawal of the words, "upon the true faith of a Christian. So help me God," at the close; and by inserting introductory words, setting forth that the party is one of the body for whose benefit that act was passed. See Affirmation, Oath, Quakers, Separatists.

The following is the Statutory Declaration, in room of the Oath of Abjuration, to be taken by Roman Catholics under the 10 Geo. IV. c. 7 (1829):

I, A. B., do sincerely promise and swear, That I will be faithful and bear true allegiance to her Majesty Queen Victoria, and will defend her to the utmost of my power against all conspiracies and attempts whatever which shall be made against her person, crown, or dignity; and I will do my utmost endeavour to disclose and make known to her Majesty, her heirs and successors, all treasons and traitorous conspiracies which may be formed against her or them: And I do faithfully promise to maintain, support, and defend to the utmost of my power, the succession of the Crown, which succession, by an act entituled "An Act for the further limitation of the Crown, and better securing the rights and liberties of the subject,” is and stands limited to the Princess Sophia, Electoress of Hanover, and the heirs of her body, being Protestants; hereby utterly renouncing and abjuring any obedience or allegiance unto any other person claiming or pretending a right to the Crown of this realm: And I do further declare, that it is not an article of my faith, and that I do renounce, reject, and abjure the opinion, that princes excommunicated or deprived by the Pope, or any other authority of the See of Rome, may be deposed or murdered by their subjects, or by any person whatsoever: And I do declare, that I do not believe that the Pope of Rome or any other foreign prince, prelate, person, state or potentate, hath or ought to have any temporal or civil jurisdiction, power, superiority, or pre-eminence, directly or indirectly, within this realm. I do swear, that I will defend to the utmost of my power the settlement of property within this realm, as established by the laws: And I do hereby disclaim, disavow, and solemnly abjure any intention to subvert the present Church Establishment, as settled by law within this realm: And I do solemnly swear, that I will never exercise any privilege to which I am or may become entitled, to disturb or weaken the Protestant religion or Protestant government in the United Kingdom: And I do solemly, in the presence of God, profess, testify, and declare, That I do make this Declaration, and every part thereof, in the plain and ordinary sense of the words of this oath, without any evasion, equivocation, or mental reservation whatsoever.-So help me God.

ABORTION. The giving of medicines, or application of force, to procure abortion, is not murder of the child, though previously quick in the womb. But it is so if the woman herself dies from the effects. A man and woman had sentence of transportation for seven years, for occasioning abortion in the fifth or sixth month of pregnancy, by means of an instrument applied to the womb; Robertson and

Bachelor, 1806. A similar sentence was passed on a medical man, who, in the same manner, had, for hire, produced abortion on a young woman.-Aitken at Perth, 1823. A man had sentence of fourteen years' transportation, for administering arsenic to procure abortion.-Munn at Inveraray, 1824. An attempt to procure abortion is a relevant charge. In England, where a child, though quick in the womb, is killed by a blow or by drugs, it is not murder; but if born alive, and dying of the previous treatment, it is murder. The English Act, 43 Geo. III. c. 58, superseded by 9 Geo. IV. c. 31, enacts, that the use of any means to procure abortion of a child quick in the womb is felony, and punished capitally; and if the child be not proved quick, then it is felony punishable by transportation; and the Act 7 Will. IV., and 1 Vict. c. 85, renders such act to procure miscarriage of any woman, even though in fact not pregnant, felony, and punishable by transportation. See Burn's Justice by Chitty.

ABROAD. See Foreign.
ABROGATE; to repeal.

ABSCONDING FROM LEGAL DILIGENCE is one of the grounds for fixing notour bankruptcy under the Act 1696, c. 5. In criminal indictments it is set forth in evidence of guilt.

ABSCONDING. A witness may be committed to prison until caution be found that he shall appear and give evidence at the trial of a cause, on good reasons for supposing he is about to abscond. But this power must be used with great caution. ABSENCE of a defender in a civil action entitles the pursuer to decree, but which is subject to be recalled at any time before implement total or partial, but under certain conditions and regulations. Ersk. B. i.; T. 2, s. 16. 16 and 17 Vict. c. 80, s. 2. In strictly criminal cases, no procedure can take place in absence, but the accused may be outlawed and his bail-bond forfeited. In some statutory penal offences, the offenders may be proceeded against by citation, and convicted though absent.-2 Hume, 263.

ABSOLUTE DISPOSITION is a conveyance without any qualification or reservation. It may, however, be absolute in itself, and yet qualified by a separate deed or back-bond.

ABSOLUTE WARRANDICE ("against all mortals") is complete guarantee from every claim and objection, in contradistinction to warrandice from fact and deed, which protects only from the granter's own acts and not from those of third parties.

ABSTRACTED MULTURES-An action against those astricted to a certain mill, and who have carried their grain to another mill, concluding for the multures of the abstracted grain. This claim prescribes in five years-1669, c. 9. Ersk. B. ii.; T. 9, s. 32. See Multures.

ACCEPTANCE. See Bill, Sale.

ACCESSION. The commencement of the reign of the Sovereign.

ACCESSION—A mode of acquiring property. It is either natural or artificial. The former comprehends the young of cattle-fruits and produce of the groundaddition to land on banks of rivers. The latter embraces trees planted-houses built. A person building by mistake on another person's ground, has claim for the value, so far as it is an improvement; but he cannot retain possession until repaid the value-27th May 1831, Beattie. The maxim, taken from the civil law, is accessorium sequitur principale; signifying that the accessory right follows the principal. Ersk. B. ii.; T. 1, s. 14.

ACCESSION, DEED OF,-whereby the creditors of a bankrupt agree to a trustdeed for their benefit, and to forego individual diligence and preferences. Accession may be established by facts and circumstances (such as by letters, presence at meetings, and acceptance of dividends) without a formal deed, though such is always expedient. This deed is analogous to the English deed of Covenants. See Trust. ACCESSORY-ACCOMPLICE-ART AND PART. An accessory is one who aids or assists in a crime, and is held guilty, not as actor but as art and part. Such are those who conspire together to commit a crime-or give direct counsel or instigation thereto or actual assistance in its commission. In England, there is accession after, as well as before the fact. In Scotland, the latter is not recognised, unless it infers previous knowledge, counsel, or co-operation. In Scotland,