Found, that a Sheriff had no power to oblige parties to enact themselves with caution to appear on an accusation of murder, unless they had been taken in flagrante crimine, and there had been a preceding charge.
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In a reduction, the Lord Lovat contra Sheriff of Nairn, for reducing of two acts, whereby two Highlandmen, and the Lord Lovat, as cautioner for them, was obliged to compear before the Justice, and to underly the law for poisoning of some persons, and who were unlawed in the sums, for which they found caution, in respect of their non-compearance; the reason of reduction was, because the Sheriff had no power to cause the said persons so to act themselves, except there had been a preceding charge directed against the said alleged malefactors, or else that they had been taken in flagrante crimine; where as in this case, neither was there any charge against the malefactors, nor had the sheriffs warrant to take them; and it was not in flagante crimine, seeing the fact for the which the sheriff caused them be acted to compear to underly the law, was committed 15 or 16 years before that. Likeas the said act being for the sum of 300 merks, and so in a matter of importance, and in an inferior court, it was not subscribed by the parties alleged acted thereby; this reason of reduction was found relevant. See Proof.
Act. Lawtie.Alt. Mowat.Clerk, Hay.
Fol. Dic. v. 1. p. 510. Durie, p. 371.
