Scottish Court of Session Decisions

Subject_1 JURISDICTION.

The Duke of Douglas
v.
Two Justices of Peace

Date: 18 December 1753
Case No. No. 63.

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In a question betwixt the Duke of Douglas and two Justices of Peace; reported by Lord Kilkerran for advice, the Lords found, that the 44th act 24. Geo. II., for rendering Justices of Peace, &c. more safe in the execution of their offices, extends to Scotland as well as England, though the procedure must be according to our forms, 28th July 1752. And on a reclaiming bill and answers, they found, 19th December, that it did extend to Scotland, but as the fact charged was a wilful transgression, and collusive, they found that this action did not fall under the act. But, upon another reclaiming bill and answers, it was observed, that it was impossible that any action could in Scotland be brought in terms of that act but before the Court of Justiciary, where alone the Justices of Peace could be tried by a Jury; that no action could be brought without giving previous notice, and if an amends was offered, it must be tried whether that amends was sufficient, and that by the act could only be tried by a Jury, and not by any Court of law; and as the Legislature could not mean without express words, to make such an alteration of our law and of the jurisdiction of this Court, no part of the act could extend to Scotland, if it was not the last clause limiting the action, and that it was impossible to separate that clause from the act: And as to the second part of the interlocutor, that the preamble of the act proposes a remedy for all sorts of transgressions, not only innocent and through ignorance, but wilful and oppressive, and the rest of the act is calculated to answer both; and the limitation in the last clause is of all sorts of actions against Justices of Peace, and the defenders' transgression in, this case could not possibly be worse than what is mentioned in the preamble, and therefore if the act extends to Scotland, that they were entitled to the benefit of it. And upon the question, it was found that the act does not extend to Scotland, 6th February1753; but 20th July we altered this last, and found that the act extends to Scotland, and that this case is within the act.—Adhered, 18th December, 5 against 5.