Scottish Court of Session Decisions

The suspender was convicted in November 1865, at the instance of Mr Johnston, the Procurator Fiscal of the Justice of Peace Court of the Stewartry of Kirkcudbright under the Day Poaching Act, 2 and 3 Will. IV., c. 68. The warrant of imprisonment in the conviction (failing payment of the penalty and costs) was put in force in January 1867. Morton presented a note of suspension and liberation on the grounds (1) that Mr Johnston had never authorised the apprehension and imprisonment; and (2) that the parish minister, to whom the penalty in the conviction was ordered to be paid, being now dead, there was no one in existence to whom the penalty could be paid so as to satisfy the conviction. Mr Johnston ceased to act as Fiscal in 1866. The parties called in addition to Mr Johnston as respondents were Gordon, on whose grounds the trespass was committed, and Davidson, as Chief Constable of the Stewartry, who, as was alleged, had instructed the enforcing of the sentence.

The Court refused the suspension, holding that it was to be presumed that the delay in enforcing the warrant arose from Morton not having been found until now; that the sentence here being a criminal sentence, the prosecutor had no option, when once it was pronounced, of enforcing or not enforcing it; and that the superintendent of police had a right to enforce the warrant against the suspender.