Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. X.

Consignment by the Pursuer. - Summary incarceration upon suspicion of forgery. - Improbation against titles of honour.

The King's Advocate
v.
Charles Stewart

Date: 21 December 1753
Case No. No 219.

Whether it be competent to examine a man accused of forgery, after the complaint is laid against him.

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When a man is suspected of forgery, and application is made to the Court of Session for a warrant to incarcerate him till he be tried, it has been customary before a formal libel or complaint is exhibited against him, to examine him in Court, and to oblige him to answer proper interrogatories. See upon this matter l. 22. C. Ad legem Cornel. de fals. and M'Kenzie's Criminals, page 140. where it is said, that in crimine falsi the Court of Session has gone so far as to prove by the defender's oath.

A complaint for forgery being exhibited against Cameron of Fassefern, charging him with contriving a forged deed in his own favours, and claiming upon the same in a court of justice; and against Charles Stewart, notary public, charging him with being the forger, or at least with being accessory to the forgery; the question occurred with regard to the latter, whether it was competent to examine him after the complaint or libel was laid against him. Elchies gave his opinion, that though the defender's oath ought not to be demanded ob metum perjurii, the same objection lies not against an examination. It occurred to me, That if the complaint be laid ad civilem effectum only, viz. to annul the writ, there is no reason why the defender may not be examined as well as in any other civil cause; but the specialty of this case is, that the complaint is against an accessory, concluding against him the pains of law, and which is the only conclusion that can be against an accessory who has no interest in the writ challenged. I moved the above specialty, and expressed my doubt, whether, in such a case, an examination is competent either before or after a libel is exhibited; for this reason, that by the common law of this island, no man is bound to give evidence against himself; that this law is indeed altered in civil processes upon authority of the Roman law, but that the law remains entire in criminal actions. The majority, however, inclined to proceed to the examination upon this ground, that an examination would have been competent before the complaint was exhibited, and ex paritate rationis, that the same ought to be competent after. The obvious answer to this is, that in a case like the present, which is purely criminal, there is no good ground for an examination, either before or after the complaint. Mr Stewart's counsel, however, seeing his objection would be over-ruled, withdrew the same, and gave way to the examination.

Sel. Dec. No 61. p. 80.