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of kin, &c., when it may be made permanent until the person be cured, or security be found for his safe custody. The procurator-fiscal is to contract with the keepers of asylums for the custody of such persons. The taxed expense of the application to the sheriff is payable out of the rogue-money. The expense of maintenance and custody is payable out of the estate of the lunatic, if he have any sufficient for the purpose; and if this is not the case, it must be defrayed by the parish. The sheriff's decision against a parish for a lunatic's support, provisional or permanent, is final, and not subject to review, leaving to the parish all legal recourse against other parties liable.2

A lunatic may be removed from an asylum certified by two medical men to be unfit for his custody, on an application by the procurator-fiscal to the sheriff, the expense of maintenance in the place to which he is removed being defrayed by the party liable to pay had he been continued in the place whence he is removed.3

CHAPTER VII.

MISCELLANEOUS STATUTORY REGULATIONS.

SECT. 1.- Weights and Measures.

WEIGHTS and measures used in every description of commerce must be of the legal standard appointed by 5th & 6th Wm. IV. c. 63, and stamped by the district inspectors appointed by the justices of peace or burgh magistrates, and those using them unstamped or unjust forfeit a sum not exceeding £5, with the weights or measures used.5 Contracts in contravention of the act are not valid.6 It was held in one case that where the party alleged that the Scots or imperial acre was the criterion of the price of potatoes said to have been sold, the bargain would have been good had that been proved; but as no reference to the imperial acre was proved, no effect could be given to it.7 No weight above 56 lbs., or wooden or wicker measure used in the

1 14 & 5 Vict. c. 60, § 3.- Ibid. § 5.-3 Ibid. § 6.- 5 & 6 Wm. IV. e. 63, §§ 17, 18.- Ibid. § 21.5 Ibid.— Ibid.—7 Alexander v. M'Gregor, 24th June 1845.

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sale of lime, or glass or earthenware drinking-vessel, requires to be stamped; but any person buying by any such measure represented as of any amount of imperial measure, may require the same to be tested by a stamped measure, and if the seller refuse to do so, or the measure is found deficient, he becomes liable to the above penalty.1 Weights made of pewter or lead cannot be stamped or used unless cased with brass, copper, or iron.2 Old local and customary measures, including the Winchester bushel and Scotch ell, and heaped measures, are prohibited, under a penalty not exceeding 40s.,3 and persons are required to make their sales. by some one of the imperial measures, or some aliquot part, such as a half, the quarter, the eighth, the sixteenth, or the thirty-second parts thereof." Under this clause it was held that a sale by a multiple of an aliquot part of an imperial measure is lawful, e. g. thirteen thirty-second parts of an imperial gallon; but that a sale in a vessel represented as containing a Scots pint, or a certain amount of imperial measure, and not stamped, was illegal.4 Vessels which are not represented as being any customary or other measure or any imperial measure or fixed part thereof may be used, though not according to the standard.5 No coal, slack, culm, or cannel, must be sold by measure, but all by weight, under a penalty not exceeding 40s.6

SECT. 2.-Shipwrecks.

All local magistrates, constables, and custom-house officers, when called on by the commander of a vessel stranded, must give aid, and are entitled to call for the assistance of the commanders of other vessels, who, if they refuse, are liable in £100 to the commander of the ship in distress.7 The officers of customs may detain the vessel, &c., till the salvers are remunerated. If the master or owners cannot come to terms with the custom-house officers as to the amount of remuneration, it may be referred to the arbitration of three neighbouring justices. The law of salvage in England is adjusted by the act 9 & 10 Vict. c. 99, which does not extend to Scotland.

1 5 & 6 Wm. IV. c. 63, § 21.-2 Ibid. § 13.-3 Ibid. § 6.- Allan v. Baird, 13th June 1845. 2 Brown 294.-5 5 & 6 Wm. IV. c. 63, § 6.Ibid. § 9. Allan v. Baird.-7 12 Anne, St. 2, c. 18, § 1.-8 Ibid. § 2.

PART IX.

CRIMINAL LAW.

CHAPTER I.

PROSECUTORS.

SECT. 1.-Public Prosecutors.

THE administration of criminal justice in Scotland differs from that of England, in committing the conduct of prosecutions, in the general case, to public prosecutors. This system with us, as in most other nations of Europe, seems to have had its origin from those fiscal officers whom the right of the crown to the feudal forfeitures of persons found guilty of crimes, prompted to take a peculiar interest in prosecutions; and the alteration of circumstances gradually changed the agent for the crown into the prosecutor for the public interest.

Lord Advocate.-The principal public prosecutor for Scotland is the Lord Advocate. He holds his office during the choice of the crown, and is generally chosen from among the partizans of the administration for the time being. Since the abolition of the office of secretary of state for Scotland, in 1746, he has performed many of the functions which would have otherwise fallen to that officer, and his ministerial duties are various, important, and not easily defined. His deputes or assistants are the Solicitor-General, an officer whose existence cannot be traced farther back than to the period of the Union, and certain minor assistants termed Depute-Advocates. These assistants individually exercise the full powers of public prosecutors, and the Lord Advocate is responsible for their conduct, to the extent to which he can be made responsible for his own.

Procurators-fiscal.-The Lord Advocate and his assistants are entitled to prosecute in any criminal court in

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Scotland, but, with the exception of some proceedings in the sheriff-courts, which are superintended by a deputeadvocate, they are not in the habit of appearing in the inferior judicatories, such as Sheriff, Burgh, and Justice of Peace Courts, to which special prosecutors are attached, termed Procurators-fiscal, generally chosen by the judges. These officers have to perform the several duties of making the first inquiries as to crimes presumed to have been committed within their districts, of applying to magistrates for warrants to apprehend the persons accused, of conducting the necessary examinations, and of communicating with the Lord Advocate and his deputes to ascertain whether it is their intention to prosecute the cases in the Court of Justiciary, or to leave them to the procurators-fiscal and the district courts, as cases of lesser moment.

Responsibility. The trust placed in the hands of the procurators-fiscal is of less degree than that confided to the crown prosecutors. The libel, or accusation of the latter is, with the exceptions mentioned below (see Chap. III. Sect. 1), entirely in the name of the Lord Advocate, and is termed his "indictment." The accusation of the procurator-fiscal is in the form of an application to the judge of his court, and requires a warrant from the court to cite the prisoner, in terms of the application. This document is termed "criminal letters." The Lord Advocate incurs no responsibility at common law in the performance of his duties, and the power of parliament to inquire into the conduct of all public officers is, besides public opinion, the only check on his proceedings. He is not, therefore, liable to damages, on the ground of a malicious and irregular prosecution. An old act provides, that in the former case his informer shall be liable,1 but it is doubted by many lawyers whether the Lord Advocate can be compelled to name his informer.2 Procurators-fiscal are, on the other hand, liable to damages for irregular, oppressive, or malicious prosecutions.3 The evil motives or misconduct of such an official will, of course, be well established before damages can be obtained, that he may not be shackled in using proper discretion in his office.

It has been found that where a statute appoints sums levied as penalties to go to "the informer," the term applies, not to the person who gives information to the prosecutor, and evidence in the trial, but to the person who pursues to

11579 c. 78. See Hume on Crimes, ii. 135. Earl v. Vass, 17th July 1822, App.-3 Ibid.

conviction; and in the particular instance the procuratorfiscal was found entitled to retain the sums.1

The Lord Advocate is irresponsibly master of the prosecution which he has raised, and is able to modify it, so as materially to affect the prisoner's interest, and the general administration of justice. He may pass from any part of the charge, at any time before the verdict of the jury is returned. For instance, if his indictment charges two thefts, he may withdraw one of them; if a theft aggravated by housebreaking, the housebreaking. He can depart from the whole charge, even after a verdict of guilty has been returned, if he has not moved for sentence.2 He can restrict the libel to an arbitrary punishment, that is, if the punishment of the offence charged be by law death, he can decline prosecuting to sentence of death, leaving it to the court to apply what smaller punishment it may deem fit. Whether procuratorsfiscal ever possessed this right, it is unnecessary to inquire, as they never pursue in capital cases. It is enjoyed by the Lord Advocate, even where the crime has been rendered capital by statute, if his power is not specially excluded.3 There is no recognised legal method of compelling the Lord Advocate to prosecute if he should decline.4

SECT. 2.-Private Prosecutors.

Although prosecutions by public officers may be said to constitute the system in Scotland, yet they have not entirely superseded private prosecutions. In the earlier ages of our law, the whole matter was generally left to the private party, and on the criminal records, the public prosecutor only gradually makes his appearance previously to the reign of James VI. Since that period, his imperceptible encroachments have rendered private prosecutions formally dependent on him. A private prosecutor must have the concourse of the Lord Advocate,-not his active assistance, but his sanction, before he can proceed. This, it is said, the Lord Advocate is not entitled to refuse.5

Interest. The private party may prosecute not only for punishment, but for damages or assythement, and the title to receive such damages, owing to the prosecutor having himself received injury in the capacity of heir to an injured

1 Kerr v. Scott, 14th June 1842.-2 Alison's Prac. 90.-3 10 Geo. IV. c. 38, § 5.- Maclaurin's Cases, 258.-5 H. C. ii. 126.

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