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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hutton v. Garland and Another [1883] ScotLR 20_658 (13 June 1883) URL: http://www.bailii.org/scot/cases/ScotCS/1883/20SLR0658.html Cite as: [1883] SLR 20_658, [1883] ScotLR 20_658 |
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Page: 658↓
The Summary Prosecutions Appeals Act 1875 provides, that in order to an appeal being taken against the decision in point of law of an inferior judge, the appellant shall, within three days after the determination of the inferior judge, find caution for or consign a sum sufficient to meet any penalty imposed, and also the costs of the appeal.
A person who had been convicted of a police offence on a Saturday, desired the magistrate by whom he had been convicted to state a Case for the consideration of the High Court of Justiciary in terms of the Summary Prosecutions Appeals (Scotland) Act 1875, sec. 3, but did not lodge the necessary sum to meet the costs of appeal, as directed by the 1st sub-section of the same clause, till the following Wednesday. Held that the Sunday must be counted as one of the days, and that therefore he had not complied with the provisions of the statute, and was not entitled to have a Case stated.
The Summary Prosecutions Appeals (Scotland) Act 1875, sec. 3, provides—“On an inferior judge hearing and determining any cause, either party to the cause may, if dissatisfied with the judge's
Page: 659↓
determination as erroneous in point of law, appeal thereagainst notwithstanding any provision contained in the Act under which such cause shall have been brought excluding appeals or review in any manner of way of any determination, judgment, or conviction, or complaint under such Act, by himself or his agent applying in writing within three days after such determination to the inferior judge to state and sign a Case setting forth the facts and the grounds of such determination, for the opinion thereon of a superior court of law, as hereinafter provided; and on any such application being made the following provisions shall have effect—1. The appellant shall not be entitled to have a Case stated and delivered to him unless within the said three days he shall (1) lodge in the hands of the clerk of court a bond with sufficient cautioner for answering and abiding by the judgment of the superior court in the appeal, and paying the costs should any be awarded by that court, or otherwise, in the discretion of the inferior judge, shall consign in the hands of clerk of court such sum as may be fixed by the inferior judge to meet the penalty awarded, if any, and the said costs of the superior court.” John Hutton was convicted of assault at the Leith Police Court on Saturday 19th May 1883. He was sentenced to pay a fine of 7s. 6d. He paid the fine, and on Tuesday 22d applied in writing, through his agent, to have a Case stated for appeal to the High Court of Justiciary. A reply was received by his agent from the Clerk of Court the same day, stating that before any Case could be stated the sum of £8 must be lodged in the Clerk's hands in terms of the Summary Prosecutions Appeals (Scotland) Act 1875, section 3, sub-section 1. On the morning of Wednesday the 23d May the money was sent to the Clerk, who refused to receive it, on the ground that the time for lodging it had expired.
In these circumstances Hutton lodged this application, to which the Magistrate and Clerk of Court were called as respondents, to have the former ordained to state a Case for the consideration of the Court.
Argued for the Complainer—The application for a Case had been lodged in time. Sunday must not be counted as a day in the meaning of the Act, which allowed three working days. The sum required was lodged. The Act was passed to admit of appeals, and should not be rigidly construed against admitting them.
Authorities—Moncreiff on Review, 202; Jex Blake v. Craig, March 16, 1871, 9 Macph. 715; Russell v. Russell, November 12, 1874, 2 R. 82; Court of Session Act 1868, sec. 28.
I am relieved of a feeling of anything like practical hardship in not allowing a Case, because from the note I see that the objection to the decision is insufficient evidence, the party in the case in the Police Court being too drunk at the time the assault was committed on him to remember anything of the occurrence.
The
The Court refused the application.
Counsel for Petitioner— Rhind. Agent— Andrew Clark, S.S.C.
Counsel for Respondent— Moncreiff. Agent— J. Campbell Irons, S.S.C.
