Page images

would have to choose between them-the general rule being that the last clause expressed the latest mind of the Legislature. The Court, however, was of opinion that the employment of the Summary Procedure Act had not the effect of making the Sheriff's jurisdiction more extensive by exempting it from appeal. There was no clause in that Act taking away an existing right of appeal, or which could be construed as repealing the secs. of the Tweed Fisheries Act which provided the appeal. Still, appeal on the merits might be taken away, if the record of the evidence were abolished, by means of which alone it was practicable to judge whether the conviction was justified by the evidence. But he thought that the words of sec. 16, by which it was made "not necessary to preserve a note of the evidence, did not dispense with the record so absolutely as to repeal the imperative words of the former statute. Therefore the suspr. might have had a record of the evidence if he had asked for it in the Inferior Court. The suspension must be refused. No expenses, the case being the first of the kind. Act.-W. N. Maclaren. Agent J. M. Macqueen, S.S.C. -AltClark, W. A. Brown. Agents-Mackenzie, Innes & Logan, W.S.

[ocr errors]


Catching Salmon in close time-Adjournment by single justice-Conviction -Alteration of Libel.

Case certified from Dumfries Circuit Court. Appeal from conviction by Justices for unlawful catching of salmon in close time with poke-nets. Besides pleas on the merits, the main grounds of suspension were-1st, That the case had been adjourned from the 5th to the 12th Jan. by a single Justice. Sec. 12 of the Summary Procedure Act, under which the prosecution was conducted, provided that there should be no adjournment unless the Court thought fit to order an adjournment. Not less than two Justices could form the Court, as not less than two could try the case. 2d, The conviction, though signed by the Justices, did not contain their names and designations in the body of it in the usual manner.

The LORD-JUSTICE CLERK thought the appeal should be dismissed. Every Court had the power of adjournment (Bruce v. Linton, Nov. 30, 1860, 23 D. 85.) A single Judge could adjourn a diet of the High Court of Justiciary when there was not a quorum. In proceedings like the present, it was the Court that was authorised to issue warrants of citation and apprehension, and these duties were performed by a single judge. The omission of the names, if it was of any importance, was met by sec. 34 of the Summary Procedure Act, which enacts that convictions are not to be quashed on immaterial points of form. As to the pleas on the merits, there was no record of the evidence, and therefore no materials before the Court. The other Judges concurred.

Act. Watson & Nevay. Agent-Robert Finlay, S.S.C.-Alt.-Clark & Johnstone. Agent James Steuart, W.S.


This case was similar to the preceding, with the additional plea that the Justices had allowed the prosecutor to alter the libel, and substitute the 11th for the 12th October as the date of the offence. The Court held this point to be immaterial. The appellants did not aver he was misled. It was covered by the 34th section. Appeal dismissed.


(Before Lords Justice-Clerk, Cowan, and Neaves).

Conviction-17 Geo. III. c. 56-Embezzlement of Yarn.

Suspension of a conviction before the Justices of Peace of Forfarshire, under the Embezzlement Act, 17 Geo. III. c. 56, on the ground (1.) That the oath of the informer and the warrant to bring up for examination did not specify sufficiently the materials alleged to be embezzled, which were merely described as "certain purloined and embezzled materials of flax used in the linen manufacture;" (2.) That the justices did not ask the informer to state specific facts inducing the suspicion libelled; (3.) That there had been oppression in the way in which the materials after they were seized had been dealt with, inasmuch as they were mixed up without labels, so that it was impossible for the suspender, after the lapse of a year, during which no steps had been taken in the case, to recognise the parcels, or account for his having them in his possession; (4.) That twelve months had elapsed after an appeal on a preliminary point to the High Court, before the proceedings were resumed; (5.) That the Justices had rejected an appeal to the Quarter Sessions on the ground that at the time of mak ing the appeal the suspender had neither found recognisances, in terms of the 20th sec. of the Act, nor had gone to prison. The Court held that the first four objections were not well founded; but that the Justices had proceeded on an erroneous interpretation of the statute in holding that the appeal had had no operation except under the conditions referred to. The panel had not been required to go to jail or to enter into recognizances when he took his appeal, and he was not bound to do so unless so required. The Quarter Sessions ought, therefore, to have heard the case on the merits, and the Court accordingly remitted to them to proceed with the case according to law, granted interim warrant of liberation, and found no expenses due in the circumstances.

Act.-Black. Agent-D. Curror, S.S.C.-Alt.-Scott. James Nisbet, S.S.C.

PTN. PIRRIE.-June 8.

Interim Liberation pending Appeal to Quarter Sessions.


The petr. was convicted in May before Justices of Peace for Mid-Lothian under the Cruelty to Animals Act (13 and 14 Vict.), and Summary Procedure Act, and sentenced to six weeks' imprisonment. He appealed to Quarter Sessions, which to in July following, and presented this petition for interim. liberation pending appeal. The complainer urged that if he were to remain in prison until the meeting of Quarter-Sessions he would suffer a longer imprisonment than that to which he was sentenced. The chief question on which the Court desired argument was the competency of the appeal to the Quarter-Sessions. But finally their Lordships held it unnecessary to dispose of this question.

Lord CowAN said it was a question of discretion for the Court, which might be entertained if there were reasonable grounds for it, notwithstanding any doubts which might exist as to the propriety of the form (that of a petition) which it was presented. The question was one of great delicacy. The ground of the application was that an appeal to the Quarter Sessions had been taken. Such an appeal was not expressly given by the statute, VOL. IX. NO. CXXVIII.- AUGUST 1867.

2 H


but it was said to exist at common law. The Court did not wish to express any opinion as to this application; it was not satisfied, indeed, that it could judge of that matter at all; or, indeed, that it was necessary to do so. prima facie case had been stated for the petr., which he might be able to substantiate when the competency of the appeal came to be discussed before the Quarter Sessions.

The Court pronounced an interlocutor whereby, the Fiscal not opposing, and without prejudice to any objections to the competency of the appeal, it granted warrant of liberation in the meantime, the petitioner finding caution to return to prison in the event of the Quarter Sessions sustaining the conviction.

Act.-Mair.-——Alt.—A. R. Clark.

(Before Lords Justice-Clerk, Cowan, and Deas.)

LOWE v. BUCHAN.-June 10.

Suspension-Conviction-13 and 14 Vict. c. 33-Citation—Police. Susp. of conviction by Mags. of Stirling, under General Police Act 13 and 14 Vic., cap. 33. Complr. averred that, having been asked to appear to give evidence regarding certain stolen property, on his arrival in Court he was placed in the dock and charged with reset of theft; and that, having been taken by surprise, he was unable to conduct his defence, convicted and imprisoned. He contended that the only competent methods of arraigning a party for trial under the act were (1) citation, and (2) apprehension, and that the proceedings were oppressive. [Robinson v. Mackay, 21st July 1846, Arkl. 114; Ritchie v. Pilmer, 20th Dec. 1848, J. Sh. 142; Blyth v. M'Bain, 20th Feb. 1852, J. Sh. 554; Gray v. M'Gill, 27th Feb. 1858, 3 Irv. 54; Cogan v. Anderson, 16th Dec. 1854, 1 Irv. 588.] Susp. refused. If complr. desired delay, he ought to have asked for it at

the time.

Act.-Scott. Agents-Lindsay & Paterson. W.SAlt.-J. Marshall. Agents-A. J. Dickson, S.S.C.

(Before Lords Justice-Clerk, Neaves, and Jerviswoode.)

Summary Procedure Act-26 and 27 Vict. c. 115—Informer―Title to
Complain-11 and 12 Vict. c. 43.

Susp. of conviction by Justices of Ayrshire under Poisoned Flesh Act 1864 (26 and 27 Vic., cap. 115). Respt. is farmer at Kildonan Mains, of which suspr. is proprietor, and the offence charged was laying down by his gamekeepers poisoned flesh or meat, "in or upon the lands of Kildonan, in the parish of Colmonell, and more particularly in or upon lands in the vicinity of Kildonan House." Obj. that the instance of the complaint was bad, for want of concurrence of the P. F., and also because it did not set forth any sufficient interest in the prosecutor, the Act not giving the right to prosecute to any one of the public; (2) That the complaint did not specify either the locus or the offence with sufficient precision. [Authorities: Hume ii, 125, 119; 11 and 12 Vict. c. 43; cases in Barclay's Digest, 210, 215; Herbert v. D. of Roxburgh, 2 Irv. 346.]

Lord NEAVES The question was the effect of sec. 31 of Summary Procedure Act as operating on the English Summary Procedure Act (11 and 12 Vic., c. 43), and through it on the Poisoned Flesh Act, and Poisoned Grain Act, 26 Vic., c. 113, sec. 25 of which as to recovery of penalties, was incorporated with the Poisoned Flesh Act. The intention was no doubt to make the penalties in both these Acts primarily pecuniary, the punishment of imprisonment being only the result of non-payment of the fine. In their first conception both acts were enforceable at the instance of common informers. No doubt this was their effect in England, and there could scarcely be a doubt as to Scotland. It was shown by the terms of sec. 5 of the earlier Act, which provides "that 11 and 12 Vic., c. 43, shall extend in England and Scotland to all proceedings under this Act, and it shall not in any such proceedings be necessary to allege or prove the ground or other place where an offence is committed to be the property of or occupied by any person: Provided always that the convicting Justices or Sheriff may, if he or they shall think fit, award to the informer or prosecutor (not being a police constable or a peace officer) in any such proceedings, any portion not exceeding one moiety of any penalty recovered under the aforesaid enactments," &c. If we refer to the Act 11 and 12 Vict., c. 43, it seemed quite plain that this clause contemplated an information by a common informer. His Lordship could not say there was in the Poisoned Grain Act itself a substantive enactment giving the penalty to the informer, the latter part of the section quoted being rather a corollary proceeding on the assumption of such a power having been already given, as it had been by the reference to 11 and 12 Vict. It might be contended that the words "informer or prosecutor" were used loosely, or were intended, applicando singula singulis, to apply to England and Scotland; but this was not probable. An offence of a very peculiar kind was constituted by the section -one which consisted, not in doing something injurious, as is the usual character of offences and crimes under the common law of Scotland, but something merely dangerous. This being so, you get out of the proper criminal law into the category of police regulations. This was the case of one who had done an act only likely to result in damage; and there was, therefore, strictly speaking, no one having a special interest to prosecute; and if the title of a prosecutor under the Act could not be sustained on the ground of interest, it could only be as a common informer. It was said, however, that all this was now taken away by sec. 31 of the Summary Procedure Act. No doubt a great deal was taken away, but the language was equivocal. There was no proper repeal of anything; but it was enacted that where by any Act of Parliament the 11 and 12 Vic., cap. 43, was applicable to complaints or informations under that Act, the provisions of the said 11 and 12 Vic., cap. 43, shall not be applicable to any proceedings under such Act when instituted in Scotland, but the provisions of this Act only-i.e., the Summary Procedure Act. This took away the form of procedure; but did it take away the right to commence the prosecution? It rather assumed the existence of that right. It was not possible to suppose that it took away the right to prosecute given by the Poisoned Grain Act to a common informer. The presumption was that it only altered the forms of proceedings, without changing the rights of parties as to their radical jus actionis. This view was confirmed by sec. 4 of the Summary Procedure Act, and the Procurator-fiscal, if he prosecuted under the Poisoned Grain or Poisoned Flesh Acts, would do so as a common informer

only. Asto the relevancy, there was no difficulty in repelling the objection.

Lord JERVISWOODE and the LORD JUSTICE-CLERK concurred. Susp. refused.

Act.-Hope. Agents-Hope & Mackay, W.S.-Alt.-Clark. Agent -L. M. Macara, W.S.


WESTERN BANK OF SCOTLAND V. BAIRD'S TRUSTEES, AND JAMES BAIRD, June 4. (In the Court of Session, July 14, 1866, 4 Macph. 1071). Competency-Appeal-48 Geo. III., c. 151-Remit to Accountant-Enumerated Causes.

Two actions of damages by Liquidators of the Western Bank against Wm. Baird, now insisted in against his trustees, and James Baird, formerly directors of the Bank, for losses alleged to have been sustained by the Bank in consequence of the defenders' negligence. The Court of Session remitted the case before further answer to an accountant to examine the books, &c. Afterwards the Court refused leave to appeal. The pursuers appealed.

The LORD CHANCELLOR (Chelmsford) in giving judgment, said that this was an appeal from part of an interlocutor which remitted to an accountant to report on the state of the accounts upon which the present action was raised; and the respts. took a preliminary objection that no such appeal was competent. He (the L. C.) thought the objection ought to prevail. By the 48 Geo. III. c. 151, it was provided that no appeal should be allowed against an interlocutory judgment of the Court of Session, but that an appeal should be only against interlocutors on the whole merits of the case, unless the Court gave leave to appeal, or differed in opinion. The appts. did not deny that this interlocutor did not exhaust the whole merits of the case, but they said that the statute did not apply, because the Court had no jurisdiction to deal with such a case, except simply to remit it to be tried by a jury. The action was founded on the delinquency, or quasi delinquency, of the directors, and it was said, was one of the enumerated causes which the Court of Session had no option but to send to trial before a jury. Now, whether it was one of the enumerated cases or not, it was competent for the Court to send it to an accountant for investigation, in order to simplify the matters alleged, and to enable them to prepare it the better for trial. That was a mere matter of procedure which the Court below was the proper Court to decide. The Court had not decided anything as to the merits of the case, and it might be that the propriety and expediency of the present interlocutor would be a proper subject for a fature appeal when final judgment should be given; but at present the House could not say that it was not a proper and expedient course for the Court below to pursue. The House could not at the present stage go beyond the interlocutor and deal with the merits. Even if the Court of Session had erroneously decided that it had jurisdiction when it had none, that objection could only be taken when the final judgment should be pronounced in the Court below.

« EelmineJätka »