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The defender rested his defence, inter alia, on the statutes 43. Geo. III. c. 141, 9. Geo. IV. c. 29, and 1. Will. IV. c. 37, which extend to irregularities in apprehending a party, or in regard to any criminal cause or proceeding, or to any prosecution for a pecuniary penalty. The following issues were then prepared:
‘1. Whether, on or about the 20th of August 1834, the defender, James Watson, wrongfully and irregularly caused the pursuer to be apprehended and detained, to the loss, injury, and damage of the pursuer?
Whether, on or about the 21st day of August 1834, the defender, James Watson, maliciously, and without probable cause, wrongfully caused the pursuer to be imprisoned and detained in the jail of Glasgow, to the loss, injury, and damage of the pursuer?
The Lord Ordinary, (Corehouse,) 28th June 1836, appointed ‘malice’ to be inserted in both issues.
Lord President .—In the circumstances, the defender might, without a precognition, have granted warrant to apprehend Railton for examination upon the complaint. But even if irregularities did occur in taking the precognition, the defender was acting as a judge; and therefore it is quite plain that malice must be inserted in the issue.
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Common Room
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