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A

SUMMARY

OF THE

POWERS AND DUTIES

OF A

JUSTICE OF THE PEACE

IN SCOTLAND,

WITH

FORMS OF PROCEEDINGS, &c.

COMPRISING A SHORT VIEW OF THE CRIMINAL DUTY, AND OF
THE GREATER PART OF THE CIVIL DUTY, OF

SHERIFFS AND MAGISTRATES OF BURGHS.

BY GEORGE TAIT, Esq. Advocate.

THE FOURTH EDITION, ENLARGED AND IMPROVED.

EDINBURGH:

PRINTED FOR JOHN ANDERSON & co. 295, ROYAL EXCHANGE,

AND LONGMAN, REES, ORME, BROWN, & GREEN,

LONDON.

Alex. Smellie, Printer to the University.

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PREFACE.

THE Author was lately induced to write a short treatise on the Duty of a Constable, from its being suggested that the information on that subject, in the existing treatises, was not adapted for immediate reference, particularly for persons not accustomed to legal investigation. Having been thus led to look into the information on the duty of à Justice of the Peace in this country, contained in the law writers, it appeared to be liable to the same objections. He was therefore induced to attempt, from the statutes, decisions, and institutional writers, a condensed methodical view, without disquisition or speculation, of some of the principal doctrines on the subject, more, at first, for his own information, and as a useful exercise, than with any serious intention of pub lication. Upon putting his name to the Duty of a Constable (for the first edition was anonymous) a wish was expressed, both anonymously and by friends of experience at the bar, that he should attempt a treatise on the duty of Justices. He therefore extended his object; and devoted to it all his leisure. And he now offers to the public the result of his attempt (for which he trusts a sufficient apology has been made) with that deep conviction of fallibility which the deliberate investigation of a subject necessarily produces,

The difficulties which have occurred have been far beyond his expectation. One great difficulty has arisen in attempting to distinguish what statutes extend to Scotland; of the magnitude of which it is sufficient to mention, as an example, that in one case (Duke of Douglas against Lockhart, 18th December 1753, see Justices of the Peace, last note) the Court of Session first found that a certain statute, very important to Justices, extended to Scotland, then that it did not, then twice that it did; and that the House of Lords, on appeal, reversed the last judgment. He may mention that, in the case of statutes applicable to the subjects in this Summary, which seemed not to extend to Scotland, he has thought it sufficient in general, for the sake of brevity, simply to omit them; but that where he has been aware of decisions of the Supreme Courts, or differences and doubts among legal authorities, as to the extension of a statute, he has noticed it under its proper head. See Justices, last note.-Vagabonds, last note.-Fishing, last note.-Planting, last note.-Gam ing, note, &c. He may also mention that, where acts of Parliament have been repealed, or have become obsolete, e. g. many acts with regard to game, he has, in general, for the sake of brevity, passed them in silence.

He has endeavoured to avail himself of every source of information to which he had access. In the criminal department, he has been infinitely indebted to Mr BARON HUME's invaluable Commentaries (a). He has searched the Books of Adjournal (as the records of the Court of Justiciary are called) for some time back; and has gathered a good deal of information from the criminal cases brought under review from inferior courts. He has observed several recent cases in the Court of Session. He has received important information, on several points of practice, from diffe

(a) In this edition, he cites the second edition of Mr Baron Hume's commentaries. The references are by the volume and page.

rent sheriffs, justices, and clerks of the peace. The legal articles have been revised by some of his brethren, of great experience, and of high consideration at the bar; and other articles by persons of practical knowledge in them; to all of whom he offers grateful acknowledgments. But still there must be errors; and (though he has searched widely for subjects, and has treated of many not before presented to the public in a work of this description) there must be omissions. He will be very grateful to have such pointed out to him.

He has made it a general rule to refer to authorities for the doctrines advanced. As he may, however, sometimes have misunderstood them, he hopes that an error will not be imputed to the authority till it be ascertained that the doctrine is correctly cited.

One of his principal objects has been compression. Many passages have been struck out, and some articles more than once transcribed, in order to make way for more practical matter, without increasing the length of the treatise. He has generally been fullest on those articles on which information must be gathered from an extensive range of statutes and authorities, or in which Justices may be called upon to act suddenly, singly, upon important occasions, or under the risk of exposing themselves to prosecution.

After much deliberation, and notwithstanding the attachment to systematic order, produced by legal habits, an alphabetical arrangement has been preferred, as being best adapted for reference. Each article forms a short independent treatise; and is methodically arranged. In one or two cases, he has been forced to use technical names for articles where no other name would properly express the meaning; e. g. Nauta, Cauponés, Stabularii. But in those cases ordinary names

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