fender in the fame libel or complaint'. The fame reason indeed does not obtain. The defender fuftains no prejudice from the circumftance. Is a fervant therefore has money owing him, by more than one mafter, he may include all of them in the fame fummons. In like manner, John, James, and George, may be called in the fame libel for their refpective acts of guilt in the fame riotous affembly. $ 3. PROSECU TORS. cr. dence of the one defend BUT if it appear that the profecutor has brought fo If the evimany parties to the bar, with the unjust purpofe of depriving them of the evidence of each other, the court may fe- er be necefparate their trials, and begin with the trial of thofe perfons other? first who are meant to be examined as witneffes for the others'. By the regulations 1695, concerning the court of feffion,fummonses against debtors are not allowed to be called against more than fix defenders; but that is only to avoid confufion. 'Hume, Crim. Law, vol. iii, c. 7. As the fame principle is applicable to all courts, it may be proper to mention a cafe or two, where fuch relief was given by the court of jufticiary. The firft is, the cafe of M'Nicol, McCulloch, and others, who were tried in July 1744. This was a profecution for affault and battery. Seven perfons had been together in a private apartment drinking. One of them was profecutor; four of them were pannels; and the other two, who were cited as witnesses against them, were the profecutor's near connections. In this fituation the paunels moved that one of their number, called Mac Vol. I. candlish, who, according to the ftory fary to the Another cafe, in fome measure of the fame complexion, came before the court in June 1748; that of Dr. Stirling, Scott of Horflie, the honourable Charles Elphinstone, and others. Two companies, of oppofite political attachments, Whigs and Jacobites, had been drinking in the adjoining rooms of a tavern at Stirling; and having irritated each other with F § 3. PROSECU TORS. Transference of ac tive. THE purfuer of a criminal action must find caution to infift and give his oath of calumny; that is, fwear to his belief of the action being well founded. AFTER the death of the purfuer, the action does not fall, tions to the but is transferred, to his reprefentatives. His executors fucreprefenta- ceed to his right of action, along with other personal rights; even where it has a connection with landed property; for example, to actions of damages from trefpaffing on inclofures; those damages being confidered as money, which ought to have been in the pocket of the deceased himself at his death. The right, therefore, gocs to his executor, who in that cafe would have been benefited; not to his heir, although the latter may fucceed to the property itself. What ac tions may be taken up cutor. THIS right of fucceffion is unquestionable in all actions; which, had they been brought by the predeceffor, would by the exe- have concluded only for fome pecuniary or civil confequence. Thus, the fervant's executor fucceeds to the fame claim for wages that would have been competent to the fervant himfelf, if alive. It fometimes alfo obtains, with refpect to the patrimonial confequence at least, even when the ground of action partakes somewhat of a criminal nature. The reprefentative may fue for the recovery of stolen goods. He may recover quod abeft patrimonio. their toasts and fongs, which were their own number, whose evidence was faid to be material to their friends. And the court seeming difpofed to comply with this request, the profecutors on both fides agreed to desert the diet, as to certain of those whom they had libelled. But, before going to proof, both parties difcovered the propriety of deferting their libels in toto. Hume, Crim. Law, vol. iii, cap. 7, p. 288, 289. $3. TORS. May the re. the prefentative purfue or for a folati other pu BUT it may be more doubtful, whether fuch actions can be competently brought by the executor or relations, where- PROSECU of the shape, as well as the ground, is ftrictly criminal. If an affault, for example, has been committed, is it, after death of the injured party, competent to his executor, nearest of kin, to bring, with the fiscal's concurrence, an um, fine, or action, concluding, not only for damages, but also for a fum nishment? of money in folatium, for fine, imprisonment, or other punishment? In one cafe, which does not fall under the cognizance of the feffions of the peace, viz. murder, the nearest relations, or if they do not move, then those more diftantly connected with the deceased, may bring a criminal profecution before the court of jufticiary, concluding for the punishment of the murderer, with the highest pains of law. If the execution of the fentence be prevented by a royal pardon, or if the crime be found to amount to culpable homicide only, then they have an action of affythment", either before that court, or the court of feffion '. BUT in the cafe of those injuries, which the fufferer fur vives, fuch as an affault, or other leffer wrong, cognisable by the feffions of the peace, Mr. Hume feems to think it doubtful whether any criminal profecution be competent to the relations after the death of the fufferer; " because the pain and distress of that injury were fuffered by the de"ceafed himself, and the law does not hold his kindred to "be fo deeply affected with the wrong on fuch occafions"." If the deceafed had himself raised the profecution, and brought it the length of litis conteftation (when parties judi-, An affythment is defcribed by Balfour, to be "money paid to the ⚫kindred, in contentatioun of the *hurt, dammage, and fkaith, fufte"nit be theme throw the wanting "of the perfon that is flane, and før " pacifying of their rancour." Prac. Balfour's Practics, p.517. Hume, TORS. Litis conte $3. cially join iffue upon the matter a), his death, it is clear, PROSECU would not prevent the judge from pronouncing fentence. Neither, were the prosecution likely to be found groundless, itation. could the death of the purfuer prevent the defender from obtaining, not only a decree of abfolvitor, but reparation of his expences from the party's representatives; who, of course, on the contrary supposition, must have the fame right of infifting in the action.. Civil law. Penal ac tions. Unlawful kindred. In the civil law, the general rule is, that even without litis conteftation all penal actions defcend to representatives. Penal actions are thofe by which the purfuer obtains more than his true intereft . But there are exceptions. Thus, actions having principally in view, not the redreffing of any patrimonial damage, but fatisfaction for fome affront, or other injury, to the feelings, did not pass to the heir without litis conteftation; the fufferer, who died without bringing the action, being understood to have either not felt, or to have overlooked, the injury. That the above rule is rejected or altered in our practice, does not appear from any decifions or authorities; which indeed generally regard the oppofite cafe of the tranfmiffion of actions against repre fentatives. This will come under our view in § 6, which treats of defenders. THIS right, fuch as it is, belongs only to legitimate relationship at least fo it has been decided in the cafe of an action of affythment. There was found to be no process at the inftance of a baftard coufin-german ; and Mr. Hume seems to think that this highest privilege of blood ought a See it explained, Ersk. book iv, tit. 1, § 69. b Stair, b. iv, tit. 3, § 37. In quibus ad pænam privatis applicandam agitur. Voet. ad Pand. Lib. 44, tit. 7, §II. © Alio injuriarum et fi qua alia fi milis eft. Inft. lib. iv, tit. 12, § 1. Quod in ea non principaliter de damns farciendo fed de contumelia vindicands agitur. Vinnius ad loc. d 27th June 1621, Thomas Weir and M'Naught for rape and murder. § 3. PROSECU not to be admitted, even in the nearest degrees of unlawful § 4. INSTANCE OR CON THE PRO in matters quence and IV. WHEREVER the ground of action relates to a private individual alone, and affords no conclufion but for fome civil or pecuniary confequence, neither the inftance, nor concourfe COURSE OF of the public profecutor, is neceffary. But actions, more CURATORftrictly criminal, petty riots, thefts, offences against any penal FISCAL ftatute, &c. &c.; or, in short, all those which involve pains of pecuniaand penalties against the offender, as well as damages to the ry confe fufferer, ought to be brought, either at the inftance, or with private concourfe of the fiscal. The public is interested in the fine right. which is levied by the public officer, and applied to public Riots, &c. ufes. And the fovereign is directly interested in the punishment of (as in the eye of law he principally is injured by) every fuch offence, which indeed, is technically defcribed, and principally punishable, as a violation of the king's peace. BUT this neceffity of obtaining the concourse of the fifcal is intended, not to quash and difcourage, but to facilitate and forward, due inquiry into any wrong which has been committed. Although the public profecutor cannot he compelled to give his inftance, he cannot refufe his concourse. If he refufe Were the lord advocate to refuse it, either the court would it, what is compel him to give it, or perhaps the caufe might be dy? allowed to proceed without it. There feems to be no Hume's Criminal Law, v. iii, was lord Alemour's opinion, as menC. 5, p. 197. a tioned by Mr. M.Laurin, p. 298.-- "Had the advocate refufed his the reme |