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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 Boyd, Hutcheson, Tait, and Blair, having been in a great measure superseded by subsequent legislation, the want of a Work applicable to the existing laws has been for some time felt.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 Author—who for nearly a quarter of a century has filled the office of SheriffSubstitute in one of the largest counties of Scotland, in which county the greater share of the jurisdiction belonging to the Justices has been exercised by the SheriffSubstitute - should undertake the desired work. He did so at the time with considerable hesitation and reluctance; and he has since had reason to regret the resolution, inasmuch as his manifold official duties, which are paramount to everything else, left himn little time for a work which required much research and great accuracy for its satisfactory completion.
The plan adopted is that of a Dictionary, in which the more important points of law are briefly noticed, and the authorities cited on which the statement of the law is made. On those branches which are more peculiarly connected with the office of Justice of the Peace, the fullest information has been attempted, and the analogies of English jurisprudence shortly pointed out. Other matters of a professional nature, likely to be of interest and of practical use to country gentlemen, have been also dwelt on at some length. In all cases of Statute law placed under the administration of the Justices, it has been thought better to give the Act of Parliament at full length in the text (excluding merely formal clauses), together with notes of authorities, rather than first to give a digest of the Statutes, and thereafter to repeat them at length in an Appendix.
The Author has gratefully to acknowledge the valuable assistance received from many friends. His acknowledgments are especially due to Messrs. Patrick FRASER, Advocate; John Gilmour, Barrister-at-Law, London; ANDREW Cross, SheriffSubstitute, Dunblane ; ANDREW MURRAY, W.S.; John KIPPEN, Writer, Perth, and Mr. Kippen's Clerk, Mr. WANDS; by the latter of whom the accuracy of the citations of decided cases throughout the work has been carefully tested. Where decisions are contained in more than one collection of reports, their date only has been given.
COUNTY BUILDINGS, PERTH,
25th December 1851.
PREFACE TO THE SECOND EDITION.
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.
PERTH, 16th March 1855.
PREFACE TO THE THIRD EDITION.
The former Editions being out of print, and numerous important Statutes having been enacted since the Second Edition appeared, a Third has now been called for. The Author has to acknowledge the kind revision of English law by his friend, GEORGE BARCLAY, Esq., Barrister, London, and the revisal of the whole by THOMAS SOUTAR, Esq., Writer, Crieff. He has also to acknowledge valuable aid from ROBERT ROBERTSON, Esq., Solicitor, Perth, and Mr. W. B. DUNBAR, in the Office of the Procurator-Fiscal, Dundee.
PERTH COURT-HOLSE, 2d October 1865.
PREFACE TO THE FOURTH EDITION.
ANOTHER Edition having been called for, the Editor with some reluctance undertook the task. He regrets the delay in its completion. He acknowledges the kind services, in revising the sheets as they passed through the press, of Mr. T. B. M'CASH, Solicitor, Perth, and Mr. P. H. CAMERON, S.S.C., Edinburgh. He is much indebted to Mr. W. P. EveRSLEY, M.A. & B.C.L., Oxford, Barrister-at-Law, Inner Temple, for his revising the sections treating of English Law. Mr. THOMAS SOUTAR, Solicitor, Crieff, revised the whole, as he did the Third Edition.
PERTH COURT-HOUSE, 1st July 1880.
THE JUSTICE'S DIGEST
LAW OF SCOTLAND.
ABANDONING AN ACTION-ABETTOR.
ABANDONING AN ACTION. The pursuer of a civil cause 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 then entitled to insist on the pursuer proceeding to a decision. The cause of action is not abandoned ; but the process is dismissed, and a new action reserved. 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; IN THE LAW OF MARINE INSURANCE is the relinquishment of a subject to underwriters by the owners in the case of a loss constructively total—such as loss of the voyage—impossibility of transhipment of goods -great damage, leaving the subject of little value-high salvage—the articles saved being 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.
ABA TEMENT, PLEAS IN, are abolished by order 19, rule 13 of the Judicature Act, 1875 (38 and 39 Vict. c. 83).
ABBOT— The head of an abbey. Parliamentary or Mitred Abbots had seats in Parliament before the Reformation.
ABBREVIATE OF ADJUDICATION-An abridgment of a decree of adjudication of heritage by creditors, which must be recorded within sixty days, to preserve its priority with similar decrees.—1 and 2 Geo, IV. c. 38, s. 18 (1821).
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 Acts render the abduction of girls under sixteen years of age a misdemeanour. 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 beiress 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 panel's daughter.-Sir Patrick Churnside, 1616. See consolidated Act relating to offences against the person, 24 and 25 Vict. c. 100 (1861) (England and Ireland).
ABDUCTION OF YOTERS is a ground of objection to an election return of a member of Parliament.
ABEYANCE, in English law, applies to inheritances not vested but in expectation, and is analogous to the hæreditas jacens 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, may be called on 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.
ABJURATION-ALLEGIANCE-ASSURANCE-SUPREMACY, OATHS OF. The several Acts which enjoined these oaths, and give the forms, are 1693, c. 6; 13 Will. 111. C. 6 (1701); i Geo. I. c. 13 (1714); 9 Geo. I. c. 24; 10 Geo. I. c. 4; and 6 Geo. III. c. 53 (1766). The oaths were taken by
1st, Persons holding offices, civil or military ;
in the House of Lords ;
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 oath of allegiance was as follows:
'I, A. B., do solemnly promise and swear that I will be faithful, and bear true allegiance to Her Majesty the Queen.' The oath of abjuration was lengthy, and is superseded by the consolidated oath, but will be found in previous editions of the Digest.
By the Act 3 and 4 Will. iv. c. 49 (1833), the oath of abjuration was 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.
A statutory declaration in room of the oath of abjuration was substituted, to be taken by Roman Catholics, under the 10 Geo. iv. c. 7 (1829), which, being lengthy, will be found in previous editions of the Digest.
By the Act 21 and 22 Vict. c. 48 (1858), one oath was substituted for the oaths of allegiance, supremacy, and abjuration, and which will be found in former editions of the Digest.
It is enacted by the third section of the above-cited Act, that no person who had taken the separate oaths would be required to take the statutory oath unless and until he should be by law required to take the separate oaths, in case the Act had not passed. Quakers and others, allowed by law to affirm in place of swearing, are entitled (sec. 4) to have the oath altered accordingly. Jews are to take the declaration appointed by 9 Geo. iv. c. 17. Roman Catholics take the declaration provided by the 10 Geo. iv. c. 7.
The Act 21 and 22 Vict. c. 48, unfortunately did not expressly abolish the subscribing of the assurance in addition to the combined oath, and which was therefore in practice subscribed where such had been previously necessary, The assurance was subscribed in the case of the North Leith Church election, and no observation was made that such was unnecessary. - 18th Dec. 1859, 23 Jur. 77. The assurance was introduced by 1 Geo. I. c. 13; amended by 6 Geo. II. c. 53 ; but as it is thought not now longer to be necessary since the Consolidated Oaths Act, and is lengthy, reference is made to previous editions of the Digest, where it will be found under the title • Assurance.
There is a subsequent Act, Oaths of Office,' which appears to supersede,