Scottish Court of Session Decisions

Subject_1 WRONGOUS IMPRISONMENT.

Neill
v.
George Miller, &c

1739, June 6.
Case No. No. 5.

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In this question of wrongous imprisonment, the questions occurred, Whether a warrant could in any case be granted without a signed information? Whether, if a warrant expresses the cause, it answers the act 1701, though there, were no signed information? Most of the Lords who spoke were of opinion, that in some cases it might necessarily, where the Judge gives the warrant ex proprio scientia having seen the crime committed and expressing that in his warrant; but not where the Judge knows nothing of the crime. but by the information of others, and far less where it is only a report or private information; in which case he may give a warrant to seize and bring him before him to be examined, and may even detain him in custody till a precognition be taken, if it can be soon done; and if he cannot be safely detained otherwise, may commit him to prison till the precognition be taken; but no judgment was given on that point. As to the second we all agreed (except Kilkerran) that by the act of Parliament where the warrant was given in consequence of an information either oral or written, and not ex propria scientia, it is not enough that the warrant must express the cause, but there must also be a signed information. But we gave no interlocutor either upon this point, because we found that the act of Parliament was in this case obtempered by the Procurator-Fiscals signing, though by order of the Judge; for the Lords thought the Fiscal as well as the Judge might be liable in damages.