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Campbell, in the meantime, had presented an application to the Lord Ordinary on the Bills for suspension and liberation on these grounds:
That the warrant pronounced was altogether ultra vires. The petition does not pray for imprisonment, neither does it pray for caution or security. It prays for a penalty which the warrant does not grant, while it does grant that which is not concluded for.
There was no conviction, and, until conviction, there were no termini habiles for imprisonment.
The suspender was ordered ‘to find security to appear for judgment when called for;’ and before judgment was pronounced he suffered imprisonment. There is no authority in the statute for ordaining such security to be found, or for imprisoning on failure to find caution.
The offence charged falls not under the 10th, but under the 6th section of the act, and the procedure is ab initio null.
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Common Room
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