'130 (fJornfU Slaui ^rlinol Hibrarg Cornell University Library KDC 930.M73 Treatise on the law of re^^^^^^^^ The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024627626 A TREATISE ON THE LAW Or REVIEW IN CRIMINAL CASES BY THE HIGH COURT AND CIRCUIT COURT OF JUSTICIARY, PROCEDURE IN CRIMINAL CASES IN INFERIOR COURTS IN SCOTLAND, INCLUDING THE TEXT OF THE STJMMAKT PROCEDURE ACT, 1864, AND THE SUMMARY PROSECUTIONS APPEALS (SCOTLAND) ACT, 1876, WITH FULL NOTES AND CASES, AND AN APPENDIX CONTAINING . FORMS, TABLE OP FEES, ETC. THE HON. HENRY J. MONCREIFF, EDINBURGH : "W. GREEN, 18 ST GILES STREET. LONDON: STEVENS & HAYNES. 1877. G. CHAPMAN AND CO., PRINTERS, EDINBURGH. PREFACE. This treatise is published in the hope that it will prove useful as a book of reference in the prepara- tion and discussion of Advocations, Suspensions, and Appeals in criminal causes. While its leading title and subject is review, nearly one half of thp book (namely, the first part) is devoted to procedure in inferior Courts. The importance of this branch, whether regarded as ancillary to the second part or as a separate subject, became so apparent as the work advanced, that I re- solved to treat it at greater length than was at first proposed. I have confined myself, however, to an examination of the leading general procedure sta- tutes and regulations, as it was impossible, within a moderate compass, to deal with the details of the numerous penal statutes now in force. The text of the leading statutes and regulations will be found arranged under their respective heads in the body of the work ; while the Appendix is chiefly devoted to forms of Bills of Advocation and Suspension, and Appeals, and to Interlocutors, and other procedure following upon them. I hope that this arrangement will enable the reader to examine the statutes more conveniently and intelligently than it is possible to do when they are disjoined IV PEEFACE. from the commentary, and that it will not render them less available for purposes of reference. It remains to express my best thanks to those who have assisted me in the preparation of the book. I am specially indebted to Mr Charles Scott, Advocate, Clerk of Justiciary, and Mr. A. D. Veitch, Depute-Clerk of Justiciary, for the oppor- tunities which they have afforded me of examining the books and papers in their custody, and for the courtesy and good-nature vrith which they have answered my frequent inquiries as to matters con- nected with their department. Mr Scott has also given me some valuable suggestions as to that part of the book which deals with procedure before the High Court of Justiciary ; and Mr Veitch has thoroughly revised the forms in the Appendix. I am also much indebted to Mr W. G. Scott-Mon- crieff. Advocate, for assistance in the preparation of the Index. HENRY J. MONCREIFF. 15 AiNSLiE Place, 1st March 1877. CONTENTS. PAET I. CHAPTEE I. PAGB Of the Leading General Statutes and Regulations CONCERNING Procedure in Criminal Causes in inferior Courts in Scotland other than the Sum- mary Procedure Act 1864, 1 Section I. Of procedure in Crimiaal Causes in tte Sheriff Court, 2 Regulations for the Sheriff and Stewart Courts, 1752, 3-6 Procedure, 1748-1827, 6 Act of Adjournal 17th March 1827, 9 6 Geo. IV., cap. 22, 14 9 Geo. IV., cap. 29, - 14 11 Geo. IV. and 1 Wmiam IV., cap. 37, 19 1 and 2 Vict., cap. 119, 21 16 and 17 Vict., cap. 80, 22 31 and 32 Vict., cap. 95, 25 Sketch of Procedure, - 25-34 1. In Trials by Jury, - 25 2. In Trials without Jury on Crimiaal Libel, 31 3. In Summary Trials, 32 1 Vict., cap. 41, 34 Section II. Procedure in the Courts of. Royal and Parliamentary Burghs, - 36 1. In the Courts of Royal Burghs, 36 19 and 20 Vict., cap. 48, 39 2. In the Courts of Parliamentary Burghs, 40 Section III. Procedure in the Police Courts under General or Local Police Acts, - 41 1. Under General Police Acts, 41 25 and 26 Vict., cap. 101, 42 2. Under Local Police Acts, - 47 VI CONTENTS.- Section IV. PAGE Procedure before Justices of the Peace, * 19 aad 20 Vict., cap. 48, *^ Special Statutes, 49 CHAPTER II. Section I. The passing of the Summaiy Procedure Act, 1864, 51 Section II. The Summary Procedure Act, 1864, 61 PAET II. CHAPTER I. Introductory, - 150 CHAPTER II. The Constitution and Arrangements of the Court of Justiciary, - 151 CHAPTER III. The High Court of Justiciary as a Court of Review, AND THE Processes op Review competent before it, 162 Section I. Advocation, - 163 Section II. Suspension, and Suspension and Liberation, 169 Section III. Appeal on a case stated under the Summary Prosecutions Appeals (Scotland) Act, 1875, 38 and 39 Vict., cap. 62, - - . 189 Section IV. Appeal under other Acts of Parliament, 216 CHAPTER IV. The Circuit Court of Justiciary as a Court of Review, 219 CONTENTS. VU Section I. PAOB Appeal under the Heritable Jurisdictions Act, 20 Geo. II., cap. 43, - - - - 219 Section II. Appeal under 1 Vict., cap. 41, The SmaU Debt Act, 1837, 245 Section III. Appeal to the Circuit Court under other Acts of Parliar ment, ...... 260 CHAPTER V, Application by Petition to the High Court of Jus- ticiaet in Exteaoedinaey Circumstances, - - 264 CBAPTEE VI. On Objections to the Jurisdiction of the Court of Justiciary, and on the Finality of Convictions AND Judgments of Inferior Courts, - 272 CHAPTER VII. The Grounds of Review, - - - 309 1. Jurisdiction, - - - 310 2. Instance, - - - - - 311 3. Arrest, - - 312 4. Citation, ... - 314 5. Search Warrants, - - - 315 6. Delay in bringing Accused before a Magistrate, 316 7. Judicial Examination, - - 316 8. Where Delay is improperly refused, &c., - 318 9. The Complaint or Libel, - 319 10. The Rejection and Admission of Evidence, - 323 11. Failure or Refusal to record or note Evidence, - 324 12. Failure or Refusal to note Objections, - 325 13. Amendment of Complaint, 325 14. Adjournment, - - 326 15. The Verdict, - 329 16. Conviction and Sentence, - - - 330 APPENDIX. A. TRIAL BY JURY ON A CRIMINAL LIBEL. 1. Crimiaal Libel, - - - 335 Vlll CONTENTS. PAGE 2. Letters of Exculpation, 336 3. Eecord of Trial by Sheriff and Jury, 337 4. Interlocutor adjourning the Diet, 338 B. TEIAL ON SUMMAHY COMPLAINT. 1. Under 9 Geo. IV., cap. 29, - 339 2. Under the Summary Procedure Act, 1864. 339 C. BILL OF ADVOCATION, 339 D. BILLS OF SUSPENSION, INTEELOCUTORS, AND PROCEDUEE, - 342 1. Of a Summary Conviction and Sentence imposing a fine, and imprisonment in default of payment, 342 2. Of a Summary Conviction and Sentence of im- mediate Imprisonment, - 343 3. Of a Conviction and Sentence of Imprisonment following on the Verdict of a Jury, - 345 E. APPEALS TO CIECUIT COUET OF JUSTICIAEY. 1. Appeal under 20 Geo. II., cap. 43, not taken in open Court, 348 2. Appeal under 20 Geo. II., cap. 43, taken and entered in open Court, 351 3. Appeal under 1 Vict., cap. 41, against a decree CONDEMNATOR, 352 4. Appeal to Circuit under 1 Vict., cap. 41, against a decree absolvitor, - 353 PETITION FOE RECAL OF SENTENCE OF FU- GITATION, - 355 G. BONDS OF CAUTION. 1. Bond in an Appeal under the Summary Prosecutions Appeals (Scotland) Act, 1875, - ggg 2. Bond where Caution aoted in the Books of Adjournal 357 3. Bond in Appeal against a Summary Conviction, 355 4. Bond in Appeal under 1 Vict., cap. 41, ggg CONTENTS. ix H. PAGE MEMORANDUM FOR THE PURPOSE OF HAV- ING A DAY FIXED FOR HEARING, - 360 I. TABLE OF FEES PAYABLE TO CLERKS OF JUSTICIARY, 360 K. RECENT CASES, 361 INDEX OF CASES. Aberdeen v. Wilaon, 227 Addison v. Stevenson, 279 Advocate (H. M.) v. Affleck (James), 128 Advocate (H. M.) v. Anderson (John), 128 Advocate (H. M.) v. Beatson, 330 Advocate (H. M.) v. Chalmers, 315 Advocate (H. M.) v. Cooper (James), 285 Advocate (H. M.) v. Graham (George), 153 Advocate (H. M. ) v. Harris Rosenberg, 160 Advocate (H. M. ) v. Hinohy (Michael), 125, 265 Advocate (H. M.) v. Hunter and Others, 330 Advocate (H. M.) v. Lacey, 315 Advocate (H. M.) v. Luke, 328 Advocate (H. M.) v. Macdonald (Robert), 329 Advocate (H. M.) v. M'Millan (Jas.)i 318 Advocate (H. M.) v. Mahler (Ditrich) and Berrenhard, 318 Advocate (H. M.) v. Miller (James), 125 Advocate (H. M.) v. Rowet (Robert), 285 Advocate (H. M.) v. Sinclair and Others, 329 Advocate (H. M. ) v. Stewart (John), 318 Advocate (H. M.) v. Tabram, 30 Advocate (H. M.) v. Wallace and Others, 329 Advocate (H. M.) v. Watt (David), 329 Aitken v. Learmouth, 225, 251, 257 Aitken v. MoUison, 288 Alexander v. Lindsay, 298, 299 Allan V. Stewart, 238 Anderson v. AUan, 89 Anderson v. Blair, 171, 323 Anderson Brothers v. Jamieson, 211 Anderson v. Nicholson, 286 Anderson and Holms v. Cooper, 93, 289, 312 Anderson and Others v. Jamieson, 232, 233, 234 Arbuckle v. Taylor, 113 Arthur v. Peebles, 128, 330 Ashdown v. Curtis, 205 Ashley v. Rothesay, Magistrates of, 123 Attorney-General v. Radloff, 279 Bain v. O'Neill, 301 Baird v. Rose, 77, 130, 181 Banks v. Goodwin, 201, 205 Bannatyne v. M'Lullich and Fraser, 186 Barton v. Hannant, 194 Baxter v. Kennedy, 240 Beattie v. Gemmel, 244 Beattie v. Maxwell's Trustees, 314 Belasco v. Hannant, 194 Bell V. Black and Morrison, 112, 113, 114, 116, 118, 133, 170, 187 Bell and Shaw v. Houston, 323 Birrel v. Jones, 215, 333 Bissell and M'Caig v. Buchanan, 252 Bisset ». Mackay, 45 Black V. Bradshaw, 196, 207 Black V. Marshall, 91 Blackwood v. Fiimie, 311 Blair v. MitcheU, 273, 279 Blythe and Taylor v. Robison, 313 Blyths V. M'Baiu, 180 Bone V. Bird, 91, 317 Brown v. Turner, 198 INDEX OF CASES. XI Brace V. Linton, 89, 277, 326, 327 Buchanan v. Glasgow Corporation Water Works Commissioners, 255, 256 Buie V. Steven, 227 Burns v. Hart and Young, 171, 323 Burrell and Son v. Foster, 244 Bute and Spouse v. More, 18, 34, 68, 70, 91, 107 Byrnes &o. v. Dick, 14, 50, 62, 71, 127 Caldwell v. Baker, 279 Caledonian Railway Company v. Fle- ming, 165, 169 Cambuslaug &c. Koad Trustees v. Graham, 244 Cameron v. Hamilton, 117 Cameron v. Smith, 227 Campbell v. Brown, 80 Campbell v. Gillies, 225 Campbell v. Jamieson, 362 Campbell v. Stratheam, 279 Campbell v. Young, 109, 279 Cann v. Clipperton, 122 Carruthers v. Jones, 88, 89, 103, 121 Castle's Cases, 285 Chapman v. Bobinaon, 204 Christie v. Adamson, 170, 182, 183 Christie v, Johnston, 235 Christie v. Simpson, 23 Clark V. Bathgate, 298 Clarkson v. Muir, 306, 333 Clendinnen v. Eodger; 171, 322, 323 Cockburn v. Johnson ajid Bobson, 81, 315 Cogan or Devany v. Anderson, 45, 46, 249 Cook (William), 29 Cornwell v. Sanders, 198 Cowan V. M'Minn, 321 Craig V. Great North of Scotland Rail- way Company, 78, 121, 140, 330 Craig V. Jex Blake, 203 Craig 1). Peebles, 114, 118, 322 Crawford v. Blair, 249, 316, 319 Crichton v. Grant, 279 Crosbie v. M'Minn, 109, 223 Dallas v. Mann, 117 Davidson v. Gray, 157 Dawson v. M'Lennan, 310 De Banzie v. Peebles, 330 De Belmont v. Lang, 297, 307 Dick V. Great North of Scotland Rail- way Company, 225, 254, 294, 310 Donaldson v. Buchan, 80, 309, 321 Dorward v. Mackay, 104 Drummond v. Hunter, 229 Duncan v. Greig, 279 Duncan v. Ramsay, 170 Dundee Whale Fishing Company v. Mavour and Paton, 230, 231 Dunlop V. Hart, 279 Eastern Counties Railway Company V. Moulton (Overseers of), 125 Edinburgh, Procurator-Fiscal of, v. Phillips, 312 Edward v. Inverness and Aberdeen Junction Railway Company, 311 Ferguson v. Thow, 140, 175, 331 Flowerdew v. Reid, 252 Forbes v. Adair, 110, 111, 281 French and others v. Smith, 170, 318. Fuller V. Newland, 198 Fulton V. M'LeUan, 230 Gall v. Potts, 236 Gait V. Ritchie, 125, 127, 129, 332 Gardner v. Dymock, 91, 140, 289, 332 Gardner v. Porter, 279 Giles V. Baxter, 283 Gillies V. Jeffrey, 170 Glasgow. Cotton Spinners' Case. See Advocate (H. M.) v. Hunter and Others Glasgow and South- Western Railway Company v. WUson, 251 Glass V. Thow, 228, 229 Graham v. Linton, 43, 249, 319 Graham v. Mackay, 254, 258, 291 Graham v. Toderiok, 171, 329 Grange v. Mackenzie, 251 Grant v. Grant, 333 Grant v. Wright, 197 Gray v. Bonnar, 221 Gray v. M'Gill, 250, 301, 302, 303, 305, 319, 331, 333 Gray v. Mackenzie, 171, 183, 184, 185 Greig v. Stewart, 361 Guthrie V. M 'William, 252, 257 xu INDEX OF CASES. Hair v. Niool's Trustees, 256. Halliday v. Bathgate, 91, 92, 107, 185, 209, 289, 324 Hamilton v. Girvan, 73, 119, 311 Hanvy v. Orr and Stirrat, 312 Harris, 285 Henderson v. M'Aulay and Company, 231 Henderson v. Mackenzie, 199, 214 Herbert v. Duke of Roxburgh, 312 Hill V. Dymook, 279 Hiuchy (Michael), 125, 265 Holland v. Gauchalland Coal Com- pany, 71, 102, 127, 129, 130 Hood V. Young, 170 Hopkirk v. Wilson, 227 Hopton V. Wicks, 91, 127 Hurst, ex parte, 198 Jackson v. Jones, 76 Jamieson v, Lothian, 23, 164, 322 Jamieson and Others v. Mackay, 250, 319 Jamieson v. Pilmer, 170, 313 Johnson v. Simpson, 204 Jones and M'Bwan v. Mitchell, 330 Jupp V Dunbar, 170 , Kay v. Kelso, The Local Authority of, 210 Keane v. Lang, 236 Keith (William Taylor), 267 Kennedy v. Cadenhead, 111, 312 Kerr v. Mackay, 323 Kershaw v. Mitchell and Company, 109 Kilberry Case. See Campbell t. Brown King V. Wavell, 125 Kinnear and Brymer v. White, 97, 140 KinnouU (Earl of) v. Tod, 165, 286 Kirkin and Others v. Jenkins, 75 Kirkpatriok v Mackay, 307, 308 Knight and Others v. Burnet, 301 Knox V. Ramsay, 14, 50, 62, 71, 325 Laidlaw v. Sharkey, 106 Lamb v. Henderson, 227 Lamond v. Baker, 332 Launders v. Maun and Company, 230 Law V. Munro, 45 Lawson v. Jopp, 99, 105 I Lawson v. Mackenzie, 178, 212 Lazenby v. M 'Arthur, 299 Ledgerwood v. M'Kenna, 185 Lewis V. Blair, 311 Lindsay or Webster and Others, 2G4 List V. Pirrie, 164, 165, 189 Lock V. Doolen, 333 Logan V. M'Adam, 91, 317 Lone V. Buchan, 46 M'Adam v. Laurie, 195, 207 . MacaUster and Others v. Fiscal of Lanarkshire, 5 M'Allister v. Cowan, 180, 252 M'Crone v. Sawers, 113, 311 M'Dade v. Henshilwood, 76, 77 M 'Donald v. Dobbie, 109 M 'Donald v. Gordon, 224, 244 Macdonald v. Gray, 279, 287 Macdonald v. Lyon and Main, 316 Macdonald -y. Young, 279, 282 M'Donell and M'Leod v. Davidson, 98, 102, 143, 222, 333 M'Garth and Others ». Bathgate, 171, 327, 338 Macgregor v. Latour, 234 Mackenzie v. Lang and Cunningham, 292 M'Kelvie v. Barr, 312 Mackintosh (Angus), 269, 312 Maclean v. Macfaorlane, 175, 180 M'MiEan v. Campbell, 236, 237, 238 M'Nab V. Glass, 140, 330 M'Neill V. Coltness Iron Company, 73, 313 M'Phail V. CampbeU, 295 M 'Ritchie v. Thomson, 238 M'Vie and Linch v. Dykes, 126, 313 Mahon v. Morton, 46, 180, 249, 252, 318 Mains v. MaoLuUich and Eraser, 113, 116, 119, 140, 321, 330 Malonie v. JeSrey, 326 Manson v. Smith, 259, 306 Marshall v. Turner, 235 Martin v. Pridgeon, 74, 76 Mathews v. Glasgow Iron Company, 314 Mathison v. Monkland Iron and Steel Company, &c., 227 Maxwell (Sir J.) v. Stansfleld, 221 May, ex parte, 199 INDEX OF CASES. XIU Middlemias v. d'Ereaby, 188 Milhollan v. Bertram and Others, 113 Miller ■;;. Henderson, 258 Milne v. Simpson, 171 Mitchell V. Campbell, 322, 326 Mitchell V. Murray, 226 Mitchell V. Scott and Mackay, 311 Morgan v. Edwards, 202 Morris and Boyd v. Earl of Glasgow, 75 Morrison and Black v. Welch, 101, 283 Morrison v. KhuU, 317 MosBon V. Brash, 257 Motteram v. E. C. Kailway Company, 209 Mowat V. Martine, 251 Muckersie v. M'DougaU, 181, 223, 288, 294, 306 Mnrchie v. Fairbaim, 259, 304, 333 Murray v. Allan, 121, 123, 125 Murray v. Jones, 99, 147, 283 Murray v, Mackenzie, 255, 257 Neilson v. Stirling, 77, 321, 330 Kelson V. Black and Morrison, 112, 116, 133 Newlauds v. Stewart, 239 Nicholson v. Linton, 187 Nimmo v. Clark and Wilson, 104, 185, 282 North British BaUway Company v. Eennie, 180 O'BRiBif and Others v. Linton, 249, 318 Orr V. M'Callum, 180, 249, 318 Orrock v. Laudale, 234, 237 Owens V. Calderwood, 78, 81, 93, 326 Park v. Lord Stair, 109, 111 Paterson v. M'Kay, 257 Patterson v. Malcolm, 181 Peacock v. The Queen, 202 Penman v. Watt, 80, 91, 318, 324 Pennell, 205 Philip and Others v. The Forfar Build- ing Investment Company, 247 PhUUps V. Steel, 279, 287 Pirrie v. List, 266 Piscatore (Leonardo), 37 Porter v. Stewart, 286 Prentice and Newbigging v. Bathgate, 165 Purdie v. Mitchell, 287 Purkis V. Huxtable, 209 QuABNS V. Hart, 172 Eae v. Linton, 79, 117, 321 Rae V. Linton and Bank of Scotland, 114, 117 Banken v. Alexander, 215, 333 Begin a v. Brickhall, 76 Rex V. Corden, 128 Bex V. Harris, 285 Bex V. Jukes, 128 Rex V. Robinson, 285 Ehodes v. Ross, 143, 161, 181, 222, 223, 333 Richardson v. Williamson, 113 Ritchie v. Pilmer, 248 Robertson v. Athole (Duke of), 71 Robertson v. Mackay, 248 Robertsons v. Wilsons, 229 Ross V. Stirling, 105, 179, 181, 184, 306, 332 Rowet (Robert), 285 Russel V. Lang, 286 Russell «. Colquhoun, 170, 171,311 RusseU V. Russell, 203 Russell V. Sprot and Lang, 170, 286 St James (Overseers of) v. St Mary (Overseers of), 206 Sanderson v. Peebles, Procurator- Fiscal of, 328 Scott V. Cumming, 97 Scott V. Sinclair, 331 Scottish North-Eastem Railway Com- pany V. CargiU, 252 Scottish North-Eastern Railway Com- pany V. Matthews, 257 Selkirk (Earl of) v. Kennedy, 196 Selkirk Local Authority v. Brodie, 362 Shields v. Dykes, 325 Shiell V. Mossman, 260 Shotts Iron Company v. Kerr, 227 Skinner v. Adamson, 170 Skinner v. Robertson, 236 Simpson v. Crauford and Dill, 72, 286, 313 Sinclair v. Rosa, 241, 252 Smith V. Forbes and Low, 72, 286, 313 XIV INDEX OF CASES. Smiths. Lothian, 23, 24, 323 Smith V. Young, 326, 330 Smellie v. Lockhart, 196, 286 Snaddon v. Spence, 178 Soky V. Wilcox, 299 Somerville v. Hemman, 279 Steel V. Smith, 129 Stevenson v. Scott, 274, 279 Stevenson v. Watson, 315 Stewart v. Boyd, 333 Stewart v. Stewart, 205 Stott V. Gray, 226, 227 Strachan v. Stoddart, 113 Syme v. Murray, 278 Syred v. Oarruthers, 205, 206 Taoitb i;. Smith, 70 Taylor v. Oram and Smart, 198 Thomson v. Wardlaw, 76, 77, 127, 129, 130 Trotter, WiUiam, 285 Turner's Case, 128 Turner v. Postmaster-General, 75 Waddbll v. Romanes, 315 Walker v. Bathgate, 106, 185 Walker w. [Ling, 178, 292, 296 Walker v. Moar, 159 Walters v. WiUiams, 206 Ward V. Young, 312 Watson V. Wood and Challoner, 314 Weatherstone v. Gourlay, 237, 251 Webster v. Bethune, 133, 187 Whatman v. Ogilvie, 243, 244 White V. Watson, Pellot and Com- pany, 311 Whitson V. Coupar-Angus, Heritors of, 231 Whittle V. Frankland, 76 Williamson v. Thomson, 333 Wilson V. Addison, 228 Wilson V. Cameron, 229 Wilson V. Dykes, 78, 321 Wilson V. Morrison, 182 Wilson V. Watson, 226, 228 Wbodhouse v. Woods and Others, 202, 205 Wright V. Dewar, 92, 180, 289 Wyllie V. Lawson, 235, 306 Wyher v. Hendrie, 227 Young v. Townshend, 299 LIST OF STATUTES. PAGE Act 1426, c. 75, . . . . . .36 1488, c. 1, . . . . .36 1587, c. 82 156 1592, c. 153, 16 1672, c. 16 (Concerning the Justice Court), 151, 154, 156, 159 1681, c. 22, 154 6 Anne, c. 6. . . . . . .156 10 Anne, c. 33, 156 (2, 5, 36, 156, 20 Geo. II. 0. 43 (Heritable Jurisdictions Act), J. 212, 217, 218, ( 219-245, 267 156 21 Geo. n. c. 19, ... 13 Geo. III. c. 31, . . . 13 Geo. III. c. 54, . . . 23 Geo. III. c. 45, . . . 39 and 40 Geo. III. c. 39, 45 Geo. ni. c. 92, . . . 54 Geo. III. c. 62, . . . 54 Geo. III. c. 186, 4 Geo. IV. c. 34 (Master and Servant Act), 4 Geo. IV. c. 34, . 6 Geo. IV. c. 23, . 6 Geo. IV. c. 129, 9 Geo. IV. 0. 29 (Sir WUliam Eae's Act), | ^57^^57"^ '^I58^3f5j3^2^4 9 Geo. IV. c. 39, . . . ''''"- 9 Geo. IV. c. 58, . 9 Geo. IV. c. 69 (Night Poaching Act), . I WiU. IV. c. 36, II Geo. IV. and 1 "Will. IV. c. 37, 1 and 2 Will. IV. c. 32, . 1 and 2 Will. IV. c. 43, . 2 and 3 Will. IV. c. 68 (Day Trespass Act), 49, 285, 311, 313, 315 3 and 4 WUl. IV. c. 46, . . . . .41 3 and 4 WUl. IV, c. 77 40, 41 5 and 6 WUl. IV. c. 63, 263 7 Will. IV. and 1 Vict. c. 41 (Small Debt Act), 1837, | ^*' IH'^ ^g'S 1 and 2 Vict. c. 119, ' 21 314 261 154, 157 49 86 . 17,224 87 50, 311, 324 333 8, 14, 17 . 49, 325 295 . 50, 294, 327 49, 312, 325, 330 314 19-21, 84, 157, 159 248 49 XVI LIST OF STATUTES. PAGE 6 and 7 Vict. c. 99, . . . • • ^01 11 and 12 Vict. c. 42, . . . - ' ^^' H 1 1 and 12 Vict. c. 43 (English Summary Procedure Act), 51, 73, 189 11 and 12 Vict. c. 79, . . - • • 1^0 c. 33, 41 c. 70 332 c. 27 40 c. 67, 50,327 1 6 and 17 Vict. c. 80 (SheriffCourts (Scotland) Act, 1853), j ^^ ^^ g^ 298 312 (38, 39, 41, \ 49, 69 298 41 51, 189 263 13 and 14 Vict. 13 and 14 Vict. 14 and 15 Vict. 16 and 17 Vict. 16 and 17 Vict. cap. 107, 17 and 18 Vict. c. 104, 19 and 20 Vict. c. 48 Procedure Act), 19 and 20 Vict. c. 56, 19 and 20 Vict 20 and 21 Vict, 20 and 21 Vict, 22 and 23 Vict. 23 and 24 Vict, 25 (Justice of Peace Court c. 103. c. 43, c. 148, c. 70, c. 96, 298 41 and 26 Vict. c. 35 (Public Houses (Scotland) f 50, 262, 294, Act Amendment Act, 1862), . . \ 306, 333 25 and 26 Vict. c. 101 (General Police Act, 1862), 41-47, 263, 307 25 and 26 Vict. c. 97, . . . . . 263 27 Vict. c. 30, . . . . . . 158 (49, 50, 51, 27 and 28 Vict.c. 53(SummaryProcedureAct, 1864), \ 60, 64-149 ( 280, 284 29 and 30 Vict. c. cclxxiii. (Glasgow Police Act, 1866), 261, 296 30 and 31 Vict. c. 141, . . . . .50, 332 31 and 32 Vict. c. 95 (Justiciary (Scotland) Act, 1868), 25, 154, 160 34 and 35 Vict. c. 32, . . . . . 260 38 and 39 Vict. c. 62 (Summary Prosecutions Appeals ( (Scotland) Act, 1875), . . . . \ 39 and 40 Vict. o. 152, ..... 158 189 ERRATA. P. 39, line 34, for " witnesses' " read " witness's." P. 97, third line from foot, for "Paley, 55, note (n)," read "Paley, 35, note (h)." P. 157, second line from foot, and p. 159, note 4, fifth line from foot, for " 2 Geo. IV. " read "11 Geo. IV." P. 192, heading, for " 1864 " read " 1875." P. 218, heading, for " Siunmary Prosecutions Appeals Act, " 1875," read "Appeal under other Statutes." CHAPTER I. Of the leading General Statutes and Regu- lations CONCERNING PROCEDURE IN CRIMINAL Causes in inferior Courts in Scotland other T-HAN the Summary Procedure Act, 1864. In suspensions and appeals before the High Court and Circuit Court of Justiciary so many questions arise as to alleged irregularities in procedure in inferior Courts that, in order to follow the argu- ments and read the decisions in such cases intelli- gently, it is necessary to have some acquaintance with that procedure. I do not intend at present to give an historical account of the jurisdictions of these courts, or a synopsis of the forms of process observed in them. Neither shall I attempt, eseept incidentally, to deal with the procedure authorised or prescribed by the numerous special statutes which authorise prosecutions for statutory offences and recovery of penalties. I shall content myself with commenting in some detail upon the leading General Statutes, Acts of Adjournal, and other regulations at present in force on procedure in criminal causes in the inferior Courts in Scotland, and, in particular, upon the Summary Procedure Act, 1864. But as that Act is, with trifling exceptions, permissive, and as its provisions for the most part apply only to prosecutions brought under it, it will be dealt with separately hereafter (Part I., Chap. II.), and this chapter will be confined to the statutes and regulations other than the Summary Procedure Act, 1864. The inferior Courts in question are : — (1), The Sheriff Courts ; (2), The Burgh Courts ; (3), The Police Courts ; and (4), The Courts of Justices of the' Peace. '1 PROCEDURE IN CRIMINAL CAUSES - SECTION I. Or Peoceduee in Criminal Causes in the Sheeiff Couet. In the Sheriff Court three modes of trial are competent in criminal causes. First, With a jury. Second, Without a jury on a criminal libel, and inducice of six free days. Third, On summary com- plaint without a jury, and without inducim} Of these modes the first and third only have for many years been used in practice. But all three are competent, and are fully recognised by the institutional writers, and in the statutes, regulations, and decisions to be afterwards mentioned. The second and third are both sometimes termed summary trials, as dis- tinguished from trials with a jury, but the designa- tion summary properly applies to the third mode of trial alone. Most, if not all, of the Procedure Acts and regulations now in force were passed within the last fifty years ; but some account must be given of the earlier practice. By section 40 of the Heritable Jurisdictions Act, 20 Geo. II., cap. 43 (1747), the Court of Justiciary was empowered to regulate, by Act of Adjournal, the fees to be paid to the clerks or other officers in the Sheriff or Steward Courts in criminal causes, but no power was given to regulate procedure in these Com-ts. But shortly after the passing of that Act the Sheriffs and Stewards-Depute prepared certain important regulations, which are printed in an appendix to the 2d edition of Louthian's work on The Form of Process before the Court of Justiciary in Scotland, pubhshed in 1752, four years after the Heritable Jurisdictions Act came into operation. These regulations, so far as relating to the sub- ject of this chapter, may, with advantage, be here quoted, as they present a very correct and complete picture of the procedure at that date. They possess ' At least no inducice need be allowed. IN THE SHERIFF COURT. 3 a further interest in this, that the procedure in all criminal courts was then in a state of transition ; the Heritable Jurisdiction Act having been recently- passed, and many important improvements in the conduct of criminal trials having been introduced in the Court of Justiciary, and imported thence to the inferior Courts. It is also interesting to com- pare these regulations with those contained in the Act of Adjournal of 17th March 1827, which closely resemble them.^ The headings here given are not in the original. " The regulations appointed to be observed in the eegula- Sherifi" and Stewart Courts in criminal causes are th^sher- as follows, viz. : — Jf^ ^"^ ' Stewakt Courts, Complaint hy Signed Petition. 1752. " I. That in aU crimes which by their nature require that the party accused should be incarcerated before trial, application shall be made to the Sheriff by Petition, signed by the private party complaining or by the Procurator-riscal, setting forth the nature of the crime ; and upon considering thereof, the Sheriff shall grant warrant for apprehending and incarcerating the party informed against till such time as he shall be liberated in due course of law." 2 Trials hy Jury. " II. That crimes which infer loss of life, transportation, banish- ment furth of Scotland, or demembration, and others of great importance, shall only be tried by jury, unless where the contrary is provided by special statute. " III. That in crimes to be tried by jury, the forms of the Court Compare of Justiciary shall be followed, excepting only that in all cases the ^^. "^ proof, with the objections to the witnesses, and answers, shall be nal''°17th taken down in writing." ^ March 1827, ch. Trials on Summons without a Jury. ^' ^^"^ ^' " IV. That in the trial of crimes without jury, where the form is -A^o* "f not directed by special statute, the party accused shall be cited ■^"jjoi"'- upon a proper summons, signed by the clerk and fully libelled ; j gg^ 3 which summons shall charge the defender to compear personally, and ch. 5, sec. 2. ' References to the corresponding sections of the Act of Adjournal are given on the margin. 2 Hume, ii. 84, 85, and Statute 1701, c 6. ' It would appear from Hume, ii. 67, quoted infra, that although in trials hy jury, induciiz of fifteen days were often allowed, that number of days was not peremptorily required in inferior Courts. 4 PEOCEDURE IN CRIMINAL CAUSES Ebgula- and to find caution acted in the Sheriff Books, that he shall make TioNs, &o. answer to the libel, and appear at all the diets of Court. Ibid., ch. " Y. That the officer who executes the summons shall deliver to 2, sees. 1, t}je defender, if he finds him personally, — or, if he does not find ' ' ■ him, shall leave at his dwelling-house, — a full copy of the sum- Act'rf ''^ mons, together with a list of the names and designations of the Adjour- witnesses to be adduced against him.i That the officer's execution nat ch. shall certify the delivery of such copy and list, and that six free 2, seo. 5. days shall intervene betwixt the day of the citation and the day of loid., oh. compearance, exclusive of both these days. AA'T° I, " ^^' 1'^^* every criminal summons shall contain a warrant for I sec 1 ' "i^iiig witnesses, conform to a list to be signed by the prosecutor, and given in to the clerk ; and such witnesses shall be cited to appear on the same day to which the defender is cited. Ibid.,ch. "VII. That the defender against whom any criminal summons is 4, seo. J. executed may take out Letters of Exculpation for proving his defence, if such proof be necessary ; which letters the clerk shall be obliged to give out on application of the defender, who shall therein cause cite his witnesses to appear on the same day to which he is himself cited." Cases requiring Extraordinary Dispatch. " VIII. That in all cases which require extraordinary dispatch, the private party aggrieved, or the Procurator-Fiscal, may apply to the Sheriff by summary complaint, who will (if he see cause) ordain the complaint to be intimated to the defender, and him to appear personally in Court, and to make answer to the same, upon such inducicE as the Sheriff shall think proper." ^ Procedure at the Diet of Compearance. Tbid., oh. " IX. That if at the day appointed the defender appear, and the S, sec. 1. pursuer be absent, the diet shall be declared to be deserted ; and the Sheriff shall, if the circumstances of the case require it, award full co.sts, so as to indemnify the defender, which costs may be thereafter recovered by all manner of legal diligence.^ n>id., ch. " X. That if at the day appointed the defender do not compear , seo. ^. and find caution as above, the Sheriff shall grant warrant to appre- hend and detain him till he find caution.* Ibid. , oh. " XI. That after caution is found, if the defender fail to compear i, seo. 3. iiig bail-bond shall be declared forfeited, and in both cases, whether 'By Act of Adjournal, 26th July 1675, it was ordained "That in all " tr+''„irf^'"' ■ /"S"H'!i*^T are given to the parties defenders, that upon the verie double of the letters the list of the witness and assizers names be written, either on the end or the back thereof and not on papers apart." ' = The oases here provided for are proper summary trials, as distinguished from trials on a criminal libel without a jury iiiguisuea 3 Hume, ii. 127, 128 and 134, note 1. <> Hume, ii. 69 No inferior Judge can pronounce sentence of fueitation" or^ant warrant for putting to the horn. lugiraiion IN THE SHERIFF COUKT. 5 caution has been found or not, the Sheriff may (if the nature of Eeoula- the case admit of it) further proceed to consider the relevancy of tions, &o. the libel, and admit the same to the pursuer's probation, and to pass Compare such sentence as may be pronotinced against a person in absence. ^ 4j* °* " XII. That upon the day of compearance the defender shall nal''°df" either give in all his defences in writing, or shall make answer 5, sec. 2. viva voce to the facts contained in the libel ; and upon advising the libel and defences, the Sheriff shall either pronounce an inter- locutor upon the relevancy,^ or, in case of difficulty, shall ordain inforraations to be given in.^ " XIII. That after pronouncing interlocutor upon the relevancy, the Sheriff shall forthwith proceed to examine the witnesses adduced hinc inde upon the facts admitted to probation ; but probation by oath of party shall not be allowed in any case where the fact re- ferred has turpitude in it, or where the consequence may be more than pecuniary." Sentence. " XIV. That if, upon advising the 'proof, the Sheriff shall find the defender guilty of what he is charged with, he shall fine, incarce- rate, or inflict corporeal punishment according as the circumstances of the case require, and shall in all cases grant warrant for imprison- ing the defender until he shall make payment of the sums decerned against him, or tUl the day assigned .for inflicting the corporeal punishment." The remaining regulations relate to the execution of sentences inflicting capital or corporeal punish- ment, the preparation of informations by the Sheriff, ■' The practice of proceeding in absence of the accused, which, as ttis regulation shows, obtained pretty extensively, was expressly condemned as irregular in the case of Macalwtcr and Others, June 22, 1812, in wtich the Court found and declared ' ' that in criminal process no judgment of conviction ' ' or punishment can be regularly pronounced except in presence of the panuel, " and that any practice adverse to this rule ought to be corrected." — Hume, ii. 68, note 3. But the pannels were' not allowed expenses in the inferior Courts, " in respect a usage has crept into the Sheriff Court of Lanarkshire " of giving forth sentences while pannels were not present and attending " in Court." — Hume, ii. 134, note 1. Sections 7 and 15 of the Summary Procedure Act, 1864, provide for and regulate procedure in absence where the complaint concludes for a pecuniary penalty only in the first instance, or the special Act authorises procedure without the presence of the re- spondent. " By 20 Geo. II., cap. 43, section 41, which relates to trials in the Court of Justiciary, informations on the relevancy of the libel and defences were dispensed with, except in cases of difficulty, but the pannel was required to " give in to the Clerk of Court the day before the trial, in writing, sub- " scribed by the pannel or one of his procurators, such account of the "l facts relating to the matters charged on him in the libel or indictment, " and thereto briefly subjoin the heads of such objections and defences as " he shall think fit or be advised to make at his trial." — Hume, ii. 301. * See 20 Geo. II., cap. 43, section 42, which also relates to trials in the Court of Justiciary. 6 PKOCEDURE IN CRIMINAL CAUSES Eegula- and the transmission thereof, with the writs and theIher. other evidence of proof, and Usts of assize, to the irrANB Lord Justice-Clerk or his deputes, in terms of 8 cZZ^r Anne, cap. 16 ; and lastly, to the execution of the 1752. Porteous Koll,i and attendance of the Sheriff or his substitute and oflBcers at the Circuit Court, with the roll and executions thereof In these regulations three modes of trial are well defined — Trials by Jury, in Eegulations II. and III. ; Trials without a Jury on a Criminal Summons, in Eegulations IV. et seq. ; and Summary Trials, in Regulation VIII. pkocbb- From 1748 till 1827 the procedure in the Sheriff nRE^i748- QiQ^j^ ^g^g jjqi- altered to any great extent. Being modelled on that of the Court of Justiciary, it was affected more or less by the changes which from time to time took place in the latter. But as the rules prescribed in the Statute 1672 were held to apply only to the superior Court, considerable lati- tude existed in the practice of many Sheriff Comets in regard to the length of inducice allowed, the signing of indictments, lists of witnesses and assize, service of the libel, procedure in absence of the accused, and other matters. The following passage in Hume (ii. 66) gives a very succinct account of the form of process before the Sheriff during the 18th and the beginning of the 19th century : — " The form of process before the Sheriff in " criminal cases is various, according to the nature " of the charge and the conclusions of the libel. " For petty offences, punishable vpith fine only or " damages, or a short imprisonment, the usual " course is by a summary complaint or ordinary " summons at instance either of the Procurator- " Fiscal of Court, or of the party injtired, with his 1 Hume, ii. 25 and 26. By 9 Geo. IV., cap. 29, section 5, so much of the Statute 8 Anne, cap. 16, " as relates to punishment of crimes to be tried " in the Circuit Courts, and the transmission of the same, with writs and " evidence, to the Lord Justice-Clerk or his deputies," is repealed, and crimes are now tried on Circuit by indictment in the same manner as before the High Court of Justiciary at Edinburgh. IN THE SHERIFF COURT. 7 " concourse ; and on these the manner of proceed- procbd- " ing by written debate and allowance of proof is jggV'^^ " not materially different from that in civil actions. " In cases of somewhat a higher kind, where the " prosecutor concludes for a long imprisonment, or " banishment from the country, or other the like " serious penalty, a libel is often employed (akin to " the criminal letters used in the Court of Justiciary) " which calls the accused to a day of trial on reason- " able inducice according to the custom of the Court, " and grants warrant for the citation of witnesses " as contained in a list which is signed by the pro-- " secutor and subjoined to the libel, and served on " the pannel along with it. In this form of action " the whole debate and proof are intended to take " place at a single diet mentioned in the libel and " citations ; and, therefore, if the accused mean to " examine witnesses on his part, he has to apply to " the Clerk of Court for a precept of exculpation. " Again, in cases of importance, where the Fiscal " concludes for such pains as cannot lawfully be " awarded without a conviction by the verdict of an " assize, the course of trial is by a proper indict- " meut, as before the Lords of Justiciary ; whereof " the pannel is served with a copy, together with a " hst of witnesses signed by the Fiscal, and a hst of ' " assize signed by the Sheriff. According to the cus- " tom of some counties the indictment also is signed " by the Sheriff (though this seems more proper for " the Fiscal), and the diligence for citing witnesses " is signed by the Sheriff' and the Clerk of Court. " But although these forms are usually observed in " cases of moment, and the pannel is often allowed " his inducioe of fifteen days to answer to the " charge, yet still it is to be noted that the rules of " criminal procedure prescribed in the Statute 1672 " were intended only for the supreme Court, and " not for the inferior Judges. So that a deviation " in any of those particulars is not to be pleaded " peremptorily, as a nullity of the process, if matters 8 PBOCEDURE IN CRIMINAL' CAUSES procbd- " are truly conducted in a fair and equitable URE 1748- ,1 „ 1827. ^^y- It sufficiently appears from Hume (ii. 67-69), and the cases mentioned in the notes to those pages, that the practice in criminal causes varied con- siderably in different inferior Courts ; and further, that irregularities in several important particulars had crept into and long been tolerated in the criminal procedure of these Courts. There thus existed a strong necessity for the introduction of imiformity of procedure and the suppression of such irregularities, -which could only be effected by statutory regulation. In the year 1815 a Royal Commission was ap- pointed to inquire into the duties, salaries and emoluments of the several officers, clerks and ministers of justice, and to report what regulations should be established respecting the same. The Commissioners, inter alia, recommended that certain regulations with respect to fees and otherwise should be made in regard to the Sherifi" or Steward Courts in Scotland. In order to carry these recommenda- tions into effect the Statute 6 Geo. IV., cap. 23, was passed. It directs, requires and empowers the Court of Justiciary to regulate the fees to be paid in criminal causes in the Sheriff or Steward Courts, as also the course of proceeding in criminal causes before the same, by one or more Act or Acts of Adjournal, to be passed by them from time to time as they shall see cause. ^ And it was further enacted that every such Act of Adjournal, and the regula- tions thereby made, and the table of fees thereby established, should apply to and receive effect in the Courts of Eoyal Burghs in Scotland equally as in the Sheriff and Steward Courts. ^ In virtue of the powers so conferred, the Court of Justiciary, on l7th March 1827, passed the follow- ing Act of Adjournal, which has the authority of an 1 6 Geo. IV.. cap. 23, section 1. » Fbid., section 7. IN THE SHERIFF COURT. '9 Act of Parliament.^ It is given exactly as it stands in the Book of Adjournal. " The. Lord Justice-Clerk and Lords Commissiori.ers of Justiciary Act of having taken into consideration an Act passed in the 6th year Adjouk- «)f the reign of his present Majesty, entituled ' An Act for the ?^' j^™ ietter regulation of the Sheriff and Stewart and Burgh Courts of Scotland,' as also the Eeport of the Sheriffs of the shires of '"^^^'''s- Edinburgh, Lanark, Fife, Perth and Aberdeen, commissioners appointed iDy the Court of Session in terms of the 3d section of the said statute, and the Form of Process drawn up by the said Sheriffs for criminal causes in the Sheriff Courts and Courts of Eoyal Burghs of Scotland, and having heard His Majesty's Advo- cate on behalf of the public. Do hereby, in terms of the 4th, 6th and 7th sections of the said statute. Enact and Declare that after the expiration of three calendar months after the first day of the next Session of Parliament, the following Form of Process, in criminal causes, shall be observed in the Sheriff or Stewart Courts, and in the Courts of the Royal Burghs of Scotland, viz. : — FORM OF PROCESS IN CRIMINAL CAUSES TO BE OBSERVED IN THE SHERIFF COURTS AND IN THE COURTS OF ROYAL BURGHS OF SCOTLAND. "CHAPTER L " Libel. " 1. The libel shall be drawn as nearly as possible in the form of Amended criminal letters. It shall give notice of the articles, if any, to l^y 16 be produced in evidence ; shall contain a warrant for citing ^? . witnesses; and shall be signed by the Clerk of Court. The diet gQ°ggg ^" of compearance shall be filled up before the libel shall be issued by 35' and the clerk, and on no account shall any libel be issued by the clerk Schedule with the diet of compearance blank. A list of the names and t'^)- ' Ibid. , section 5. 10 PJlOOEDURE m CRIMINAL CAUSES Act of Adjour- nal, 17th Mae. 1827 Amended by 16 and 17 Vict., cap. 5.3, sec. 35, introduc- ing two diets of Compear- ance. designations of the witnesses, signed by the prosecutor or the Clerk of Court, must be annexed to the libel. "2. If the trial is to be by jury, the libel shall contain a warrant for citing assizers, and may conclude generally for the pains of law. A list of the assize shall be signed by the Sheriff or Magis- trate, and shall be annexed to the libel and list of witnesses ; and the accused shall be cited to compear to underlye the law at the diet of compearance specified in the libel, on inducice of not less than fifteen free days, i.e., exclusive of the day of citation and the day of compearance. " 3. If the trial is to be without jury, the libel shall conclude for fine, imprisonment, and banishment, or any of them, or other pains of law competent to be inflicted by the Sheriff or Magistrate with- out a jury ; and the widucice shall not be less than six free days. "CHAPTER II. " Execution of the Libel, and Peoductions by the Peoseoutor. " 1. The officer shall deliver to the party accused, if he find him personally, a full and accurate double of the libel to the wil],i and a list of the witnesses, and also a list of the assize when the trial is to be by jury.^ " 2. If the officer do not find the party accused, he shall leave the double of the libel, and a list of the witnesses, and of the assize, if any, in the party's dwelling-house, with one of his family ; and if entrance into the dwelling-house be not obtained, the officer shall affix the double of the libel, and a list of the witnesses, and of the assize, if any, to the most patent door of the dwelling-house ; and in either of these cases, open proclamation must also thereafter be made at the market-cross of the head burgh of the county ; and another double of the libel, and a Ust of the witnesses and of the assize must be there affixed.^ "3. The lists of witnesses and assize served on the party accused shall not be on papers apart, but shall be annexed to the double of the Kbel. It is not necessary that a copy of the signature of the prosecutor, or his procurator, should be annexed to the list of witnesses so served on the accused, or that a copy of the signa- ture of the Sheriff or Magistrate should be annexed to the list of assize so served. "4. The double of the libel,and the list of witnesses and listof assize 1 That is, not including the will. 2 See Act of Adjournal, 9th July 1821, and Hume, ii. 248 and 24.'5, notes b and 2. See also, as to citation of the accused, the Statute 1555, cap. 33, and Hume, ii. 252, et seq. 3 Statute 1555. cap. 33. IN THE SHERIFF COURT. H served on the accused, may be printed or written bookways, and Amended shall be subscribed on each page by the officer executing the same, liy 9 Geo. and shall have a short copy of charge and citation subjoined thereto.' I^-' <=ap- This copy of charge and citation shall contain the names and de- g^' ®®?' signations of the witnesses present at executiag.i Schedule '_' 5. The written execution returned by the officer shall be sub- (A), scribed by him, and by the witnesses specially designed, in whose presence the citation was given. It shall set forth whether the Amended double of the libel, and the lists of witnesses and assize, and short ^J 9 Geo. copy of charge and citation subjoined thereto, were served on the JY'' "^P" accused personally, or left at his dwelling-house with one of his 7, and"' family, which dwelling-house must be particularly designated in Schedule the execution, or whether he was otherwise cited ; and if he was (^)- otherwise cited, the execution shall set forth the manner of citation. The execution shall also state that the double of the libel, and the lists of witnesses and assize served, were subscribed on each page by the officer. " 6. The original libel,^ list of witnesses and list of assizers, the executions against the accused, and against the witnesses and assizers, and also the articles to be produ.ced by the prosecutor in the course of the trial, shall be lodged in the hands of the Clerk of Court not later than the day before the trial. "CHAPTER III. " NON-COMPEAEANCE OF EITHEE PaRTY. "1. If at any diet the accused appear, but the prosecutor fail to insist, the Sheriff or Magistrate may declare the diet to be deserted; and if the circumstances of the case require it, may award expenses to the accused, which may be thereafter recovered by all manner of legal diligence. If the prosecutor's absence be necessary, and the necessity be proved to the satisfaction of the Sheriff or» Magis- trate, he may excuse the same and continue the diet to a future time. " 2. When bail has not been found, if the party accused shall fail to appear at any diet, the Sheriff or Magistrate may grant warrant for apprehending and imprisoning him until he shall find sufficient bail to attend the whole diets of Court. " 3. When bail has been found, if the party accused shall fail to ^ Section 6 of 9 Geo. IV., cap. 29, substitutes for the copy of citation a notice marked upon the libel, in form of Schedule (A), to be subscribed by the officer and one witness, and declares that "it shall not be necessary for " such officer to subscribe any other part of such copy of a libel." ^ The principal or record copies of all criminal libels before the Sheriff Courts may be either written or printed, or partly written and partly printed, provided they are authenticated as before — 16 and 17 Vict., cap. 80, section 33. 12 PROCEDURE IN CRIMINAL CAUSES Act of appear, the bail bond may be declared to be forfeited ; and the Adjooe- Sheriff or Magistrate may grant warrant for apprehending the iJuech^^^ accused and committing him to jail till liberated in due course of 1827. la,w. "CHAPTER IV. " Letters of Exculpation and Productions by the Accused. " 1. The party accused, if he demand it, shall receive from the clerk letters of exculpation containing a warrant for citing wit- nesses, agreeably to a list signed by the accused or his pro- curator. ^ " 2. All articles to be founded on by the accused in the course of the trial, a written statement of the defence, ^ and a list subscribed by the accused, or his procurator, of the witnesses to be adduced on the part of the accused, shall be lodged in the hands of the Clerk of Court not later than the day before the diet of compearance ; and the accused shall not be allowed to produce at the trial any articles which have not been so lodged, or to prove any special defence which has not been stated in writing and lodged as herein provided, or to examine any witnesses not insert either in a list lodged as herein provided, or in the list of witnesses for the pro- secution, unless by special permission of the Court, asked and ob- tained on cause shown previous to the commencement of the trial. "CHAPTER V. " Oe Procedure, Sentence and Execution. " 1. In trials by jury the forms of the Court of Justiciary shall K™Q f?^*^ be observed, except that the evidence shall be taken down in IV p ^°' '^™-'^^S' luiless otherwise provided by the Legislature. All objec- 29 sec. 17. tions stated in the course of the proceedings, with the answers thereto, shall be entered on the record if required by the party against whom the judgment on the objection has been pronounced, or if the objection shall appear to the Sheriff or Magistrate of ^ Witnesses may be cited in criminal causes or prosecutions for statutory penalties in any part of Scotland on the warrant of the Sheriff, 1 1 Geo. IV. and ' 1 Will. IV., cap. 37, section 8. See also 1 and 2 Vict., cap. 119, section 24. As to the citation of witnesses resident in England and Ireland, see 45 Geo. III., cap. 92, and 54 Geo. III., cap. 186, and notes to sections 8 and 9 of the Summary Procedure Act, 1864, infra. ' In practice this regulation is confined to special defences. IN THE SHERIFF COURT. 13 importance, and such, as ought to be put upon record, though Act of required by neither party.^ Adjour- " 2. In trials without jury the whole proceedings are to take ?^^' ^^™ place, and the evidence shall be led, in presence of the parties and ■^''' of the Judge who is to decide the cause, and the diet shall not be adjourned without reasons stated in the record. " 3. In all criminal trials, if the accused has any objection to the principal libel or list of witnesses, or to the double of the libel, or to the list of witnesses served, or to the manner in which the witnesses are designed either in the principal libel or the list Amended served, or to the execution of the libel, or to the executions against V^ witnesses, or any objection founded on discrepancy between the 29 "sec double of the libel or the list of witnesses served and the record, 11, as to he shall be bound to state the same before the iaterlocutor of objections relevancy is pronounced, otherwise the objection cannot afterwards ™*ooo"^* be receiveci. name or " 4. If the accused shall be found guilty, the Sheriff or Magistrate designa- shall, on motion of the prosecutor, pronounce judgment. tion of " 5. When a fine has been imposed or expenses awarded, the '*^*"sss. Sheriff or Magistrate may grant warrant to imprison the party Amended convicted until the fine or expenses shall be paid. ^ by 9 Geo. " 6. In pronouncing and executing sentences importing corporeal IV^'i oap- pains, the Sheriff' or Magistrate must attend to the provisions ot ^' ^^°' ^*" 11 Geo. I., cap. 26, section 10,^ and the 3 Geo. II., cap. 32, SeellGeo. section 2."* , IV. and 1 Will. IV., It will be observed that this Act of Adjournal °^P;.-^^' , 1 . T 1 1 • 1 sections 1 does not contain any regulations applicable to trials and 2. on summary complaint, and this may perhaps account for the contentions of the suspenders in the ' This regulation was in part altered by section 17 of 9 Geo. IV., cap. 29. whioli enacts that in trials by jury it shall be competent for the Court of the Sheriff to proceed "without reducing into writing the testimony of any " such witness or witnesses, in the same manner and according to the same " rules as are observed in trials before the Court of Justiciary." But the Sheriff is bound to preserve and authenticate notes of the evidence, and ex- hibit the same if called for by the Court of Justiciary. See infra, pp. 17 and .31. ' Warrants of imprisonment for payment of penalty or finding of caution must now specify a period at the expiry of which the person sentenced shall be discharged, notwithstanding the penalty shall not have been paid or caution found.— 9 Geo. IV., cap. 29, section 21. 2 Which provides that no sentence inflicting capital punishment or demembration pronounced south of the Firth of Forth shall be put in execution within less than thirty days, and if pronounced north of the Firth of Forth, within less than forty days after date of sentence. This provision was altered by 11 Geo. IV. and 1 Will. IV., cap. 37, sections 1 and 2, to the effect that the interval in the former case should he not less than fifteen or more than twenty-one days, and in the latter not less than twenty or more than twenty-seven after the date of sentence. * Which provides that no sentence importing corporeal punishment less than death or demembration shall be put in execution within less than twelve days after the date of sentence. 14 PROCEDUEE IN CRIMINAL CAUSES Act of casGS of Kuox V. Rmusay} and Byrnes and others nal°i7th v. Dick,^ to the effect that apart from the provisions ma^. 1827 of sections 19 and 20 of 9 Geo. IV., cap. 29, the Sheriff could only try cases without a jury on a criminal libel, with inducice of 6 days, taking down ' the evidence in writing, &c. It will also be observed that the Act does not so much introduce new procedure as regulate pro- cedure already in existence, though not perhaps in observation. 6 Geo. IV. It may be observed in passing that on 20th May Juky'a'ot. 1825, the same day as that on which the Act 6 Geo. IV., cap. 23, was passed, there was passed the Act 6 Geo. IV., cap. 22, which is the ruling Act as to the qualification, enrolling and choosing of jurors in criminal trials. 9 Geo. IV. The next Procedure Act is the important Statute CAP. 29. 9 QgQ jy^ P^p 29 (19th June 1828), commonly called Sir William Rae's Act. While it effects some important alterations in procedure, this Act, like the Act of Adjournal of 17th March 1827, for the most part declares and regulates, procedure already existing. It contains the following pro- visions bearing on our present subject : — Citation of the Accused, and of Jurors and Wit- nesses. — Instead of a short copy of citation being left with the accused, every service copy of a criminal libel shall have marked on it a Notice of Compearance in the form provided in Schedule (A),^ signed by the officer and one witness ; and it >■ H. C, July 7, 1837, 1 Swin. 517. ^ H.C, Feb. 23, 1853, 1 Irv. 145. 3 SCHEDULE (A). Form of Notice. A B, — Take Notice tliat you- will have to compear before the High Court of Justiciary (or other Court to be specified), to answer to the criminal libel against you, to which this notice is attached, on the day of at of the clock. This notice served on the day of , by me E F, imtness. C D, macer (or other officer of the law). [As the wUl of the libel now contains two diets of compearance (16 and 17 Vict., cap. 80, section 35), the notice of compearance must also contain the days fixed for the two diets]. IN THE SHERIFF COURT. 15 is not necessary for the officer to subscribe any 9 Geo. other part of such copy hbel. This apphes to the IT' '^^^■ service of all criminal libels in Scotland. i _ It is not necessary that at the time of service or citation of panel, juror, or witness, the officer be possessed of the warrant of citation. A short form of execution of citation is provided in Schedule (B).^ The execution need not be produced unless sen- tence of fugitation or forfeiture of a bond of cau- tion is moved for; but it may be exhibited to disprove objections to service, and the officer and witness may give evidence respecting service, although not included in the Hst of witnesses served on the accused.^ AH service copies of criminal libels, and all notices of compearance or attendance, and execu- tions of citation, may be either printed or in writing, or partly both.* Charge of Ai^t and Part. — " When the charge of " art and part is set forth at the outset of a criminal " libel, it shall not be necessary to repeat that " charge in the latter part thereof, according to the " form usually observed in the clause commencing " with the words ' at least,' and that it shall be com- " petent altogether to omit the said clause, any law " or practice to the contrary notwithstanding."^ ' Section 6. 2 SCHEDULE (B). Execution of Citation. A copy of a criminal libel, containing a charge of theft (or whatever the crime may be), consisting of pages, and having annexed to it a list of witnesses and of assize (when the trial is to be by jury), was on the day of , served by me upon (J K), by delivering the same to him personally (or as the case may be), on which copy was marked a notice of compearance, on the day of E F, witness. A B macer (or other officer of the law). 5 Section 7. * Section 8. Section 7 of 11 Geo. IV. and 1 Will. IV., cap. 37, authorises the citation of jurors and witnesses by any officer of the law duly authorised without witnesses, in any cause or legal proceeding, civil or criminal, and the oath of the officer is sufficient evidence of citation. Jurors are now cited in criminal cases by registered post letter, 31 and 32 Vict., cap. 95, section 10. ■'Sec. 9. Forthehistoryofthechargeof "art and part "see Hume, ii. 225, et seq. The insertion of the words ' ' art and part " is made a statutory requisite 16 PROCEDURE IN CRIMINAL CAUSES 9 Geo. Objections to the Citation of Witnesses and 29.' ^^'' Jurors. — It is not competent to object to any juror or witness on the ground of such juror or witness appearing without citation, or without hav- ing been duly cited.^ If the accused can establish that he has been unable to find a witness, owing to an error in the name or designation of the witness as given in the list served along with the libel, or that he has been misled or deceived in his enquiries concerning such witness, the Court shall give such remedy as may be just, provided the objection is stated before the jury is sworn ; but no objection of that description shall be afterwards received.^ On Pleading. — It is not necessary to read over the libel before proceeding to trial if the ac- cused says that he means to plead not guilty, and that he does not desire the libel to be read over.^ When the accused pleads guilty, sentence may be pronounced without the interposition of a jury, in the same manner as if a verdict of guilty had been returned. But the plea of guilty must be made in open Court, and then and there subscribed by the in all criminal libels by the Act 1.592, cap. 153. At first the charge of ■' art " and part " was introduced only at the close of the libel, but at length it became customary to introduce it also at the beginning of the minor. Baron Hume says (ii. 238), " It is not, perhaps, very necessary to observe " that the style of libel now in use truly contains a double charge of art " and part, one at the outset of the minor proposition : ' Yet true it is and " ' of verity that you are guilty of the foresaid crime, actor or art and part,' " and another at the close of the libel in the words which were formerly ' ' set down. The charge would, however, be good (though the other form " is more regular) if it were made but once at the close of the libel only." In regard to the "at least" clause he says(ii. 235), "After setting forth " the corpus delicti, with the necessary circumstances or such leading " characters of the story as the prosecutor chooses to add, he concludes " with the general charge of art aud part, thus : 'At least time and place " ' foresaid the said A B was murdered (or robbed, as the case happens to " ' be) in manner foresaid, and you are guilty of the foresaid murder, " ' actor or art and part.' Whereupon the Court find an interlocutor of " relevancy in general terms." The charge of art and part must stiU be inserted in the libel, aud this section merely declares (what was at one time both the law aud the practice) that it is unnecessary to insert it twice. ' Section 10. See also 1 & 2 Vict., cap. 119, section 24. ° Section 11. ^ Section 12. IN THE SHEKIFF COURT. 17 panel or his procurator, and authenticated by the 9 Geo. iv. signature of the Judge. ^ °^'^- '^'^■ Of Verdicts. — ^Verdicts in writing are discontinued in all cases when the verdict is returned before the Court adjourns ;2 but the verdict must still be in writing, should the Court so direct, if the Court adjourns before the verdict is returned. For the former enactments on the subject see the Statutes 54 Geo. III., cap. 67, and 6 Geo. IV., cap. 22, section 20 ; Alison, ii. 637 ; and Hume, ii. 423. Of Procedure during Trial. — The provisions on this head are so important that the sections are quoted in full. 1. In trials ly Jury before the High Court of Admiralty and Sheriff Court. " XVII. And be it enacted that it shall and may be lawful for the High Court of Admiralty, and for the Court of the Sheriff ^ respectively to proceed ui, try and determine, all causes and prosecutions for crimes before them where the trial is by jury, by verdict of such jury, upon examining and hearing the evidence of the witness or witnesses in any such cause or prosecution, viva voae, without reducing into writing the testimony of any such witness or witnesses,* in the same manner and according to the same rules as are observed in trials before the Court of Justiciary ; and it is hereby provided that the Judge trying such causes or prosecutions shall preserve and duly authenticate the notes of the evidence taken by hiTn in such trial, and shall exhibit the same or a certi- fied copy thereof, in case the same should be called for by the Court of Justiciary." 2. In Trials of Crimes before the Sheriff or other inferior Court in Scotland without a Jury. " XVIII. And be it enacted, thart in trials of crimes before the 1 Section 14. Pleading diets, to which the witnesses and assize are not summoned, were first introduced by the Sheriff Court Act, 185.3, 16 and 17 Vict., cap. 80, section 35, which is quoted infra, p. 23. 2 Section 15. ' . ^ This provision does not extend to the other inferior Courts ; hut trials by jury never now take place in them. * The depositions previously formed part of the record. They were taken down in writing by the clerk to the dictation of the Sheriff, and were signed by the witnesses. Now only the names of the witnesses are entered in the record as having been examined. See infra, p. 31. B IS PROCEDURE IN CRIMINAL CAUSES 9 Geo. IV. Sheriff or otter inferior Court ia Scotland, without a jury,i no part CAP. 29. of the proceedings which is not in use to be taken down in writing in trials by jury shall be so taken down, excepting only the de- positions of witnesses." 3. In Summary Trials before Sheriffs of Counties, " XIX. And be it enacted, that in the prosecution of criminal offences before Sheriffs of counties in Scotland where the prose- cutor shall in his libel conclude for a fine not exceeding Ten poimds, together with expenses, or for imprisonment in gaol or in bride- well not exceeding sixty days, accompanied, when necessary, with caution for good behaviour, or to keep the peace for a period not exceeding six months, and under a penalty not exceeding Twenty pounds, it shall and may be lawful to proceed to try such offences in the easiest and most expeditious manner, without the pleadings or evidence being reduced into writing; provided always that a record shall be preserved of the charge and of the judgment, in- cluding the names of the witnesses examined on oath, unless where the accused pleads guilty, which shall be made to appear ; and the said record shall also set forth, if the prosecutor or accused party desire it, any offer of proof made by either of those parties and Amended ^^^^^^d to be admitted; and likewise, if so desired, any objections by 11 Geo. to the admissibility of evidence sustained or repelled by the Court, IV., and which record shall be in the form contained in the schedule 1 Will. annexed to this Act, and there designated by the letter 0..^ 37'sera''4 " '^"^' -^^ ^® ^* enacted, that the Sheriff so trying any such and 5, aa offence shall preserve a note of the evidence taken by hrm on such to ad- journment 1 This relates to trials on a criminal libel, with six days inductee, being and noting the trials regulated by the Act of Adjournal of ijth March 1827, ch. 1, of produc- sections 1 and 3, and ch. 5, section 2. See opinion of the Lord Justice- tiona. General (Inglis) in Bute and Spouse v. More, 1 Couper, 51.3, 574. « SCHEDULE (C). 1. Libel. Unto the Sheriff of the county of , the complaint of the Procurator-Fiscal of Court (or other party with his concurrence). Humbly sheweth — That (J K) has been guilty of the crime of theft (or other crime), actor or art and part, in so far as on the day of , or about that time, he did (here state the particulars of the offence, specifying particularly the place where the crime was committed). May it therefore please your Lordship to grant warrant to apprejiend the said , and bring him before you (or .to cite him to appear before you) to answer to this libel, and thereafter to (here specify the .punishment concluded for). According to Justice. A B. 2. DELnrEHANCE ON LiBEL. At 18 The Sheriff having considered this libel, grants warrant to ofBcers of Court to apprehend the above designed (J K), and to bring him (or to cite him to appear) to answer the same, and also to cite witnesses for both parties. ( When stolen goods or the like are to be searched for this will he included in the libel and warrant). q J) IN THE SHERIFF COURT. 19 trial, and shall exHbit the same, or a certified copy thereof, in case 9Gbo IV the same should be called for by the Court of Justiciary." cap. 29, Warrants of Imprisonment. " XXI. And be it enacted, that all wairants of imprisonment for payment of penalty, or for finding of caution, shall specify a period at the expiry of which the person sentenced shall be discharged, notmthstandiag such penalty shall not have been paid or caution found." These sections contain the most important pro- visions in the Act. In particular, sections 19 and 20 define and regulate the exercise of the Sheriff's summary jurisdiction, which was passed over in silence in the Act of Adjournal of 17th March 1827. But as farther regulations were made by subsequent statutes, comment is, in the meantime, reserved. Those made by 11 Geo. IV. and 1 Will. IV., cap. 37, are as follows : — Procedure in Summary Causes. — Section 4 of 11 hgeo. Geo. IV. and 1 Will. IV., cap. 37, provides that on wil^iV the prosecution of criminal offences before Sheriffs cap. 37. of counties, according to the summary form pro- vided by sections 19 and 20 of 9 Geo. IV., cap. 29, the person accused, when first brought before the Sheriff, shall be entitled, at any time before the 3. Pboceduee. At 18 . — Compeared the said J K, and the libel being read over to him, he answers that J K. CD. If the accused pleads not guilty, or the case be not concluded at the first diet, the Sheriff adjourns the diet to at , and in the meantime grants warrant to incarcerate the said J K in the tolbooth of , to be detained till that time, or until he finds caution, to appear at all future diets of Court under a penalty of .CD. At 18 . — Compeared the said J K. The witnesses after named were examined upon oath in support of the libel, videlicet, • G H. LJVt. And the witnesses after named were examined on oath in exculpation, videlicet, . W 0. PQ. 4. Sentence. The Sheriff, finds ; and therefore (here add terms of sentence). C D. 20 PROCEDURE IN CRIMINAL CAUSES 11 Geo. examination of any witness upon the trial shall have wilI^'iV! commenced, to require a copy of the libel against CAP. 37. him, and that his trial shall be adjourned for a space not less than forty-eight hours after such copy shall be served upon him ; and that no such requis- tion shall be competent where a copy of the libel shall have been served upon the accused at least forty-eight hours before the trial. This provision was necessary and proper, as in such summary causes not even service of the com- plaint is required by Sir William Rae's Act. It is provided by section 5 that, with the excep- tion just mentioned, no adjournment shall take place when the accused pleads not guilty, or at any other stage of the trial, unless the Sheriff shall see cause to authorise such adjournment. When the declaration of the accused, or other evidence different from parole testimony, shall be adduced, the production thereof in evidence shall, be marked in the record of the trial. ^ Transmission of Prisoners. — Any officer of the law;, when lawfully conveying any prisoner to any gaol or before any Magistrate, may convey, the prisoner through any county adjoining that over which the Magistrate before whom the prisoner is to be carried for examination possesses jurisdiction, or adjoining to that in which the gaol is situated to which the prisoner is to be committed, in all respects as if he were an officer of the county through which he may pass, and as if the warrant under which he is acting had been granted or indorsed by a Magis- trate of such county. 2 Citation of Jurors and Witnesses. — Jurors and witnesses may be cited by any officer of the law duly authorised, without witnesses.'' Section 8 is as follows : — " And be it enacted, " that when the attendance of any person shall be ^ Sec. 5. ^ See. 6. ' Junirs are now cited by registered post letters — 30. and 31 Viet. , cap. 96, section 10. IN THE SHEKIFF COUET. 21 " required as a witness in any criminal cause or n Geo. " proceeding/ or in any prosecution for a pecuniary will.Yv " penalty before any Court or Magistrate in Scot- cap. 37. " land, such person, although not residing within " the jurisdiction of the Court or Magistrate grant- " ing the warrant of citation, may be cited on the " warrant of such Court or Magistrate, and this " either by a messenger-at-arms^ or by an ofl&cer of " the Court or Magistrate granting the warrant, or " by an officer of the place in which such person " may be for the time ; and such citation shall be " sufficient to enforce the attendance of such person " as a witness in aU respects, as if such person had " been resident within the jurisdiction of the Magis- " trate by whom such warrant shall have been " granted ; and further, that any sentence or decree " for any pecuniary penalty or expenses pronounced "by any Court or Magistrate may be enforced " against the person or effects of any party against " whom any such sentence or decree shall have " been awarded in any other county, as well as in " the county where such sentence or decree is pro- " nounced : Provided always that such sentence or " decree, or an extract thereof, shall be first pro- " duced to and indorsed by a Court or Magistrate " of such other county competent to have pro- " nounced such sentence or decree in such other " county." This enactment renders unnecessary the indorsa- tion of such warrants of citation, or the obtaining of letters of supplerhent from the Court of Jus- ticiary.^ The Sheriff Court-Act, 1838 (1 and 2 Vict., cap. 1 abj> 2 119), contains further provisions for the citation of ^'^■"fig parties and witnesses, without having recourse to letters of supplement. It is enacted by section 24 that it shall be competent to cite all persons within Scotland, as ' This incluaes precognition— Alison, ii. 402. ' Alison^ ii. 401. 22 PROCEDURE IN CRIMINAL CAUSES 1 AND 2 parties or as witnesses in any civil or criminal action 0^.^119. or proceeding in any Sheriff Court, by the warrant of such Sheriff Court, indorsed by the Sheriff- clerk of the sheriffdom in which it is executed ; and there is a similar provision as to the execution of letters of second diligence. And section 25 enacts that criminal warrants granted by the Sheriff against any person charged with having committed a crime or offence within the Sheriff's jurisdiction, shall be sufficient for the apprehension within any other county, and disposal of the accused, in terms of the warrant, without its being backed or indorsed by any other Magistrate ; provided the warrant is executed by a messenger- at-arms, or an officer of the Court where the same was issued.^ 16 AND 17 The Sheriff Court Act, 1853, 16 and 17 Vict., l:LT'io ^^P" ^^' contains the following provisions as to criminal .procedure : — As to the Libel. " 33. And in respebt of criminal prosecutions before the Sheriff, be it enacted as foUo'ws : — " The principal or record copies of all criminal libels before the Sheriff Courts may be either written or printed, or partly -written and partly printed, provided that the same shall be authenticated LQ the same manner as the written criminal libels now in use are authenticated. "34. When a criminal libel in any Sheriff Court is either whoUy or partly printed, a copy of it either wholly or partly printed shall, instead of beiug copied iu writing into the Eecord-Book of Court as at present, be inserted in such book, either in its proper place iu the body thereof, or at the end of the volume whereiu the relative procedure is recorded, in which last case it shall be distiuctly referred to as so appended." Pleading Diets in Trials by Jury. — Section 35 contains an important amendment in criminal pro- ' This provision only applies to the Sheriff Court ; in all other cases in which the accused is beyond the jurisdiction of the Judge or Magistrate, the warrant must be indorsed by a Magistrate of the place where it is sought to apprehend the accused. — Hume, ii. 78, 79 ; Alison, iL 125. IN THE SHERIFF COURT. 23 cedure, viz., the introduction of pleading diets. i6 and 17 Formerly in trials by jury there was only one diet c^^so. of compearance, to which not only the accused but also witnesses and forty-five jurymen were cited. If the accused pleaded guilty, the attendance of, and expense of bringing, witnesses and jurymen, were thrown away; as by 9 Geo. IV., cap. 29, section 14, a jury was not necessary, and the wit- nesses were, of course, not required. Accord- ingly it is enacted that— "35. In tte prosecution of all criminal offences -wrMcli shall not be tried sumniarily,i the ■will of the criminal libel shall contain two diets of compearance, in the form of the Schedule (L) hereunto annexed; and at the first of such diets, which shall not be sooner than five days from the service of the libel, the Court sitting ia judgment shall call upon the accused paxty to plead guUty or not guilty to the crime of which such party may be therein accused j^ and if such party shall plead guilty, the Court shall forthwith pronounce sen- tence upon such party according to the form now in use; and if the party accused shall plead not guilty, the trial of such party shall take place on the second diet of compearance set forth in the will of the libel, which second diet shall not be sooner than nine clear days after the first diet, and at such second diet the party accused shall again be called upon to plead as aforesaid ; and if such party shall then plead guity,. the sentence of the law shall be forth- with pronounced according to the form now in use ; and if such party shall plead not guilty, a jury shall then be empannelled,^ and the trial shall proceed and be followed out according to law, unless the diet shall be further adjourned or deserted according to the existing law and practice." Section 36 is as follows : — " It shall not be necessary for the 1 This enactment, although it bears to apply to all cases not tried sum- marily, can only apply, it is thought, to trials by jury, because the induci(B here prescribed are inapphoable to trials on a criminal libel with six days inducicE. The words tried summarily must therefore be read as distin- guished from tried imth a jury; perhaps the mode of trial without a jury on a criminal libel may have been overlooked, having been long in disuse. ^ Although divided into two diets, the procedure remains to all practical effects continuous. Therefore all objections to the relevancy of the libfel must be disposed of once for all at the first diet, before the accused is called on to plead, and cannot competently he stated at the second diet.— -Smii^ v. Lothian, H. C, Mar. 21, 18B2, 4 Irv. 170; and it is not competent to ad- vocate an interlocutor holding the libel relevant.— /amiesore v. Lothian, H. C, Deo. 3, 1855, 2 Irv. 273: All pleas in bar of trial, and objections to citation of the accused, must also be stated at the first diet. 3 Under this statute it is not essential that there should be an mterlocutor remitting the panel to the knowledge of an assize.— Christie v. Simpson, H. C, May 28, 1855, 2 Irv. 432. 24 PRdCEDUEE IN CRIMINAL CAUSES 16 AND 17 Sheriff at each such diet to ask the party accused more than once ^^"^'sn ■'^^'isther such party pleads guUty or not guilty." In regard to the older practice of calling upon the accused to plead both before and after the interlocutor of relevancy, Lord Neaves, in the case of Smith V. Lothian^ made the following instructive remarks : — " In old practice a panel was interrogated twice " whether he was guilty or not guilty, — ^first, before " the interlocutor of relevancy was pronounced, " and secondly, afterwards. The first interrogation " and plea had this effect, that the panel by plead- " ing gave up all objections to the jurisdiction of " the Court and the regularity of the citation. " After the panel had thus pleaded to the merits " he could not object that he was not competently " called before a competent Court. If was the "practice to record that plea, but not. to authen- " ticate it. The interlocutor of relevancy was then " pronoimced, and the panel was again interro- " gated. Then, if a plea of guilty was returned it " was recorded, and in our earlier practice the jury " returned a verdict in terms of the panel's con- " fession. The practice, though previously changed " in the supreme Court, was not altered in the " Sheriff" Court till the late Sheriff" Court Act. By " it the double interrogatory was dispensed with. '' When a plea of guilty is returned under the " recent Act on which sentence may follow, which " takes place at the first diet, all questions of juris- " diction, competency of citation and relevancy, " must necessarily be previously disposed of. The " object of the statute was to prevent discussion " on legal questions at the second diet, and to leave " nothing for the second diet except the examina- " tion of the witnesses and the trial of the cause. " The panel is then allowed a second opportunity " of pleading guilty, often a most desirable thing ' 4 Irv. 174, 175. IN THE SHERIFF COURT. 25 " for him, as preventing exposure to the Court of si and 32 "all the details of his crime." . J^\ By section 10 of the Court of Justiciary Act/^''' 1868, 31 and 32 Vict., cap. 95, it is enacted, that the " present mode of citing jurors for^ the trial of " criminal cases before the High Court or Circuit " Court of Justiciary, or before any Sheriff in Scot- " land, shall be discontinued;" and it is provided that jurors shall be cited by registered post letter, a certificate of citation in this manner under the hand of the SheriflF-clerk, or his depute, being declared to be equivalent to an execution of citation. Section 18 is as follows : — "All bail-bonds what- " soever, received in order to the liberation of ac- " cused persons from custody, shall specify the " domicile at which such persons may thereafter be " cited for trial before the Court of Justiciary or " any other criminal Court in Scotland j and it " shall not be necessary to cite any person liberated " under such bail-bond edictally at the market " cross of the head burgh of the shire." The following is a sketch of the result of these Sketch successive enactments and regulations in so far as °L^,^°' regards procedure m criminal trials in the Sheriff Court : — I. In Trials by Jury. The Original Libel, Lists of Witnesses and Assize, <|c. — The libel is drawn in the form of criminal letters (running in the name of the Sheriff of the county), and must be prepared with as much care and pre- cision as an indictment in the Court of Justiciary. It concludes generally for the pains of law ;^ the charge of " art and part " need only be inserted at the outset of the minor. ^ The libel must give notice of the productions and articles to be used 1 Act of Adjournal, 17th March 1827, ch. 1, sees. 1 and 2. ' 9 Geo. IV., cap. 29, sec. 9. CEDffEE. 26 PKOCEDUBE IN CRIMINAL CAUSES sk^'oh in evidence, including the declaration of the ac- OF Pro- t , ° cused.^ The will of the libel contains two diets of com- pearance. Warrant is granted to cite the accused to compear personally to underlye the law for the first diet on a day not sooner than five days from the service of the libel, there to plead guilty or not guilty ; and also, if required "(that is, if he pleads not guilty), to compear for the second diet on a day not sooner than nine clear days after the first diet. ^ The will also contains warrant for summoning an assize, of not fewer than forty-five persons, and the prosecutor's witnesses for the second diet if re- quired.^ The diets of compearance must be fiUed up before the libel is issued by the clerk. ^ The libel is signed by the Clerk of Court. ^ A list, of the names and designations of the witnesses, signed by the prosecutor . or Clerk of Court, is annexed to the libel ;^ and a list of the assize, signed by the Sheriff", is annexed to the libel and list of witnesses.'' The principal or record copy of the libel may be either written or printed, or partly both ; and when it is either wholly or partly printed, a copy of it, either wholly or partly printed, is inserted in the Record-Book of Court, either in its proper place in the body thereof, or at the end of the volume ; in the latter case it must be distinctly referred to as appended.* Citation of the Accused. — The officer need not have the warrant of citation with him at the time of service ; ^ he delivers to the accused personally, if he can be found, a full and accurate double of the libel (with the exception of the will), and a list of witnesses, and a list of the assize. These lists must ^ Act of Adjournal, ch. 1, sec. 1. ^ 16 and 17 Vict., cap. 80, sec. 35, and Schedule (L). ^ Ibid. '' Act of Adjournal, ch. 1, sec. 1. 'Ibid. ^ Ibid. In practice this list is signed by the prosecutor. ' Ibid., ch. 1, sec. 2. « 16 and 17 Vict., cap. 80, sees. 33, 34. »9Geo. IV., cap. 29, sec. 7. IN THE SHERIFF COURT. 27 be annexed to the double of the libel, but need not Sketch bear copies of the signatures of the prosecutor and °lZ^l' bneritt respectively/ Service copies of the libel, and lists of the witnesses and assize, may be either printed or written, or partly both.^ On every copy, libel served a notice of compear- ance is marked, containing the dates of the two diets of compearance. This notice is subscribed by the officer and one witness, but the officer need not subscribe any other part of the service copy Ubel.3 If the officer does not find the accused, and if the accused has not been liberated on bail, he leaves a double of the libel and the said lists in the accused's dwelling-house, with one of the family, or affixes them to the main-door of the house if he cannot obtain entrance ; and in either of these cases makes proclamation at the market-cross of the head burgh of the county, and there affixes another double of the libel and lists.* If the accused has been liberated on bail, he is cited at the domicile named in his bail-bond, and need not be cited edictally at the market-cross of the head burgh of the shire. ^ The execution of citation is signed by the officer who serves, arid one witness.^ If the accused is beyond the Sheriff's jurisdiction, but within Scotland, the warrant of citation must be indorsed by the SherifF-clerk of the county in which service takes place.'' Citation of Jurors. — The Sheriff-clerk of, the county, or his depute, fills up and signs a proper citation, addressed to each juror, and transmits the same in a registered post letter to the juror's place of residence, as stated in the roll of jurors. A certificate of such citation under the hand of the 1 Act of Adjournal, ch. 2, sees. 1 and 3. = 9 Geo. IV., cap. 29, sec. 8. s Ibid., sec. 6, and Schedule (A), and 16 and 17 Viot., cap. 80, sec. 35. * Act of Adjournal, ch. 2, sec. 2. ^ .31 and 32 Vict., cap. 95, sec. 18. ' 9 Geo. IV., cap. 29, sec. 7. ' 1 and 2 Vict., cap. 119, sec. 24. '28 PROCEDURE IN CRIMINAL CAUSES Sketch Sheriif-clerk or his depute is held equivalent to an CEDDRB. execution of citation. Citation of Witnesses. — The will of the libel con- tains "warrant for citing the prosecutor's witnesses. The citation may be given by any officer of the law, without witnesses, and he need not have with' him the warrant of Citation. The Sheriff's warrant is effectual throughout Scotland, even beyond his jurisdiction, without backing or indorsation. ^ As to citation of witnesses in England and Ireland, see note 3 to section 9 of the Summary Procedure Act, 1864. The accused, if he demands it, receives from the clerk letters of exculpation containing warrant for citing witnesses, agreeably to a list signed by the accused or his procurator.^ Lodging Productions, &,o. — Chapter 2, section 6, of the Act of Adjournal directs that the prosecutor must lodge the original libel, list of witnesses and assizers, and the executions against the accused and witnesses, and certificates of citations of jurors, and also all articles to be produced in the course of the trial, in the hands of the Clerk of Court not later than the day before the trial; but as the accused is now required to plead at the first diet, and as all objections to his citation and the rele- vancy of the libel are then disposed of, at least the original libel and execution of citation against the accused should be lodged the day before the first diet. The Act of Adjournal, chapter 4, section 2, provides that the accused must lodge all articles on which he proposes to found, a written statement of any special defence, and a list of witnesses, if any, sub- scribed by himself or his procurator, not later than the day before the diet of compearance ; but as these productions are only required in the event of the trial proceeding, which cannot be until the second 1 31 and 32 Vict., cap. 95, sec. 10. « 11 Geo, IV., and 1 Will. IV., cap. 37, sees. 7 and 8. ' Act of Adjournal, oh. 4, sec. 1. TOH CEDUEB. IN THE SHERIFF COURT. , 29 diet, it is sufficient if they are lodged the day before ske the second diet. ?L??2' Procedure at the first i)z««.— If the accused does not appear, and has not found bail, the Sheriff may grant warrant for apprehending and imprisoning him until he finds bail to attend the whole diets of Court. ^ If he has found bail, the bail-bond may be declared to be forfeited, and warrant may be granted to apprehend and imprison the accused till liberated in due course of law.^ This warrant may be exe- cuted in any part of the United Kingdom when duly indorsed,^ and in any other county in Scotland without backing or indorsation.* Though not present the accused may, through a procurator, state objections to citation ; ^ and his cautioner may do so in bar of forfeiture of the bail- bond.^ If the accused appears, but the prosecutor fails to insist, the Sherifi" may declare the diet deserted, and award expenses to the accused ; or if the pro- secutor's absence is proved to have been necessary, the Sheriff may excuse it and continue the diet.'' If neither party appears the libel falls, and the Sheriff cannot issue any warrant against the accused, or declare his bail-bond forfeited. If both parties are present, 8,11 objections to citation of the accused, and pleas in bar of trial, such as insanity, want of jurisdiction, "tholed an " assize," &c., are first stated and disposed of If none of these objections are sustained, objections to the relevancy of the libel are next stated and dis- posed of If these objections are repelled or obviated by amendment of the libel, an interlocutor of relevancy is pronounced, and the accused is called upon to plead. If he pleads guilty the plea is recorded, and sentence is forthwith pronounced 1 Act of Adjournal, ch. 3, sec. 2. ^ Ibid., oh. 3, sec. 3. 3 Alison, ii. 3.50. ^ 1 and 2 Vict., cap. 119, sec. 25. ° Alison, ii. 352. « William Cook, H. C, July 16, 18.S2 ; 5 Deas and Anderson, 513. ^ Act of Adjournal, ch. 3, sec. 1. 30 PKOCEDURE IN SUMMARY CAUSES Sketch on the motion of the prosecutor.' The plea must CEDUEB. be given in open Court, and then and there subscribed by the accused or his procurator, and authenticated by the signature of the Sheriff. ^ If the accused pleads not guilty the case stands adjourned to the second diet. If the second diet is not called, the only effect is that the instance falls, and the prosecutor is not thereby barred from proceeding with a second libel. Case of Edward Tabram, H.C., May 23, 1872, 2 Couper, 259. Procedure at the Second Diet. — The accused is again called upon to plead,^ and if he pleads guilty the plea is recorded, and sentence pronounced as above explained. All objections to the effect that the accused has been unable to find any witness in consequence of error in the name or designation of such witness as contained in the list served upon him, or that he has been misled or deceived in his enquiries regarding such witness, must be stated be- fore the jury is sworn.* It is not competent to ob- ject to any juror or witness in respect of such juror or witness appearing without citation, or without having been duly cited ;^ but the accused may ob- ject to a juror if he is erroneously designed either in the record or service copy, or both ;^ but such objections must be made before the jxu-y is sworn.^ If the accused says that he means to plead not guilty, and that he does not desire that the libel should be read over, it is not necessary to read the libel before proceeding to trial. ^ If the accused pleads not guilty a jury is em- pannelled,^ and the trial proceeds, and is conducted according to the rules of the Court of Justiciary. The evidence need not be reduced to writing, but ^ 16 and 17 Vict., cap. 80, sec. 35. = g q^ ly^ g^p 29, sec. 14. 3 16 and 17 Vict., cap. 80, sec. 35. * 9 Geo. IV., cap. 29, sec. 11. » Ihid., sec. 10. = Alison, ii .388. !■ 6 Geo. IV., cap. 22, sec. 16. * 9 Geo. IV., cap. 29, sec. 12. In practice the libel is hardly ever read over, and the ceremony of ascertaining the accused's wishes on the subject is usually omitted. » 16 and 17 Vict., cap. 80, sec. 35. IN THE SHERIFF COUBT. 31 the Sheriff preserves and authenticates notes of the Sketch evidence for exhibition, if called for by the Court ceduee' of Justiciary.^ As the evidence is not now taken down in writ- ing, " objections stated in the covirse of the proceed- " ings " are no longer entered on the record. There is no express statutory direction that the Sheriff shall note such objections, but it -is right that he should do so, and I believe that, in . practice, it is done when asked. Examples are given in the Appendix of the contents of the record in jury trials in the Sheriff Court according to the present practice. The verdict is returned viva voce by the Chan- cellor of the jury, if given before the Court adjourns;^ but if the Court adjourns while the jury is enclosed the Court may direct a written verdict to be returned.^ . If the accused is found guilty the Sheriff pro- nounces sentence on the motion of the prosecutor. II. In Trials without a Jury on a Criminal Libel. The libel is also drawn in the form of criminal letters ; it gives notice of articles to be produced, and concludes for fine, imprisonment and banish- ment, or any of them, or other pains of law com- petent to be inflicted by the Sheriff without a jury. It contains warrant for citing witnesses, and has annexed to it a list of witnesses.* The rules as to signing the libel and list of witnesses, the citation of the accused and witnesses, lodging pro- ductions and defences, and procedure generally before trial, are the same as in cases to be tried with a jury, except as regards summoning the jury, and in so far as there is only one diet of compear- ance instead of two.^ ^ 9 Geo. IV., cap. 29, sec. 17. ^ Ibid.,, sec. 15. ' 6 Geo. IV., cap. 22, sec. 20. * Act of Adjournal, 17tli March 1827, ok 1, sees. 1 and 3. ' See notes to 16 and 16 Vict., cap. 80, sec. 35, antea, p. 23. 32 PROCEDURE IN CRIMINAL CAUSES Sketch Jhe whole proceedings must take place, and the OEDURK evidence must be led, in presence of the parties and of the Judge who is to decide the case, and the diet shall not be adjourned without reasons stated in the record.^ The depositions of the witnesses must be taken down in writing, but no other part of the proceed- ings which is not in use to be taken down in writing in trials by jury shall be so taken down.^ This mode of trial, although long in disuse, is still competent, and might, it is thought, be often used with advantage. III. In Summary Trials. The complaint, which serves both as information and libel, is signed by the prosecutor, and is in the form provided in Schedule (C) of Sir William Rae's Act. This form, though devoid of technicalities, contains a complete skeleton of a criminal charge,^ and prays for warrant to apprehend or cite the accused, and concludes for a punishment which must not exceed the limits specified in section 19 of the statute. It is not necessary to give notice in the complaint of productions to be used in evidence, or to serve a list of witnesses on the accused. The Sheriff having considered the complaint grants warrant to apprehend or cite the accused, and to cite witnesses for both parties, and, if neces- sary, to search for stolen goods or the like. No inducice need be allowed, and even citation is not required unless the Sheriff so directs. But if the accused has not been served with a copy of the complaint forty-eight hours before the trial, he may, when first brought before the Sheriff, and before ^ Act of Adjournal, ch. 5, sec. 2. ^ 9 Geo. IV., cap. 29, sec. 18, and see p. 17, note 4. 2 On tlie form and requisites of the complaint, see notes to Schedule (A ) of the Summary Procedure Act, 18C4. Schedule (C) of Sit William Rae's Act is given on pp. 18 and 19, supra, note 2. IN THE SHERIFF COURT. 33 the examination of any witness upon the trial shall Sketch of have commenced, require a copy of the complaint ubb!'^" against him, and demand an adjournment of the trial for forty-eight hours after such copy shall be served upon him.^ On the accused compearing, the complaint is read over to him. If he pleads "guilty," the plea is stated on the record,^ and sentence is pronounced. If he pleads " not guilty," the trial proceeds in the presence of the parties and of the Judge ; and no adjournment is thereafter allowed except the Sheriff shall see cause to authorise such adjournment, the reason of which should be stated in the record.^ The record also contains, in addition to the charge and judgment,^ a note of — ■ 1. The names of the witnesses examined on oath.* 2. If desired by either party, any offer of proof made and refused to be admitted.* 3. If so desired, any objection stated to the admissibility of evidence, and sustained or repelled by the Court.* 4. The production of the declaration of the accused, and any other evidence adduced on the trial "different from parole testimony."^ The pleadings and evidence need not be reduced into writing, but the Sheriff must preserve a note of the evidence and produce the same, or a certified copy thereof, if called for by the Court of Jus- ticiary.^ All warrants of imprisonment for payment of penalty or finding of caution must specify a period at the expiry of which the person sentenced shall be discharged, notwithstanding such penalty shall not have been paid or caution found.^ » 11 Geo. IV. and 1 Will. IV., cap. 37, sec. 4. " 9 Geo. IV., cap. 29, sec. 19. 3 Act of Adjonmal, ITth March 1827, ch. 5, sec. 2, and 11 Geo. IV. and 1 Will. IV., cap. 37, sec. 5. * 9 Geo. IV., cap. 29, sec. 19. = 11 Geo. IV. and 1 WiU. IV., cap. 37. sec. 5. « 9 Geo. IV., cap. 29, sec. 20. ' Ibid., sec. 21. C 34 PROCEDURE IN CRIMINAL CAUSES Sketch op It is no easv matter to decide what cases should UEE. be tried with a jury and what without, and there is no precise rule on the subject ; but the question is always one of importance, as the sentence may be set aside if a jury has been improperly dispensed with. In judging of this the Cq,urt look to the nature of the charge, not the punishment concluded for. Not that it is incompetent for the prosecutor to have many cases tried summarily by restricting the con- clusions of the complaint ; but it is not every case which can be so dealt with, and it would be neither for the advantage of the community nor of the accused if the prosecutor possessed such a power. On this subject, which is too important to be discussed shortly, see Alison, ii. 53-58 ; Hume, ii. 147, et seq; Bute and Spouse v. More; and note 4 to section 3 of the Summary Procedure Act, 1864, infra. 7 Will. There is one statute which has not been men- 1 Vict." tioucd in its proper chronological order, under CAP. 41. -which the Sheriff possesses, within certain limits, a power of summary trial in prosecutions for statu- tory penalties, namely, the Small Debt Act, 1837, 7 Will. IV. and 1 Vict., cap. 41 ; but as the mode of trial provided by that Act is virtually, if not ex- pressly, superseded by the "further and more " effectual " provisions of the Summary Procedure Act, 1864,^ a short outline of its procedure will suffice. It is lawful for any Sheriff within his county to hear, try, and determine, in a summary manner, all prosecutions for statutory penalties that may com- petently be brought before him, wherein the penalty in question does not exceed the sum of £8, 6s. 8d.,^ exclusive of expenses and fees of extract ; the pro- secutor being held to have passed from the re- mainder of the penalty exigible.^ ' See sec. 27 of the Summary Procedure Act, 1864. " Extended to £12 by 16 and 17 Vict., cap. 80, sec 26 3 7 Will. IV. and 1 Vict., cap. 41, sec. 2. IN THE SHERIFF COURT. 35 The prosecution proceeds on a summons or com- 7 wh,l. plaint directed to officers of Court, signed by the W^° Sheriff-clerk, granting warrant to summon the de- cap. 41.' fender to compear on a day not sooner than six free days after citation.^ The Sheriff hears parties viva voce, and examines witnesses, and, if necessary, the parties themselves upon oath. No record of the evidence is directed to be kept, but if specially required, the Sheriff affixes his initials to any docu- ment produced, and writes the names of the wit- nesses examined upon the record copy of the summons.^ The appropriate form of decree. No. 9 of Schedule (A), ordains instant execution by arrestment, and also execution by poinding and sale, and imprison- ment when competent, after ten free days from the date of the decree, if the defender was personally present when decree was pronounced, and if he was not so present, after a charge of ten free days, by serving a copy of the complaint and decree on him personally, or at his dwelling-place.^ It is competent to appeal against any decree given by the Sheriff to the next Circuit Court of Jus- ticiary, or, where there are no Circuits, to the High Court of Justiciary, on the following grounds : — Corruption or malice and oppression on the part of the Sheriff, wilful deviations in point of form, which have prevented substantial justice from being done, or incompetency, including defect of jurisdiction. The appeal is only allowed to proceed on consigna- tion of the whole sum and expenses decerned for, and security for the whole expenses of the appeal* Except as above provided, the Sheriff's decree is not subject to review on any ground whatever.^ In conclusion, I must again observe that I have not attempted to deal here with the procedure pre- scribed by numerous statutes conferring jurisdiction 1 7 Wm. IV. and I Vict., cap 41, sec. 3. 2 Ihid., sees. 13 and 31. ^ Ibitl, sec. 13. ^ Ibid., sec. 31. ° Jl'kl., sec. 311. 36 PROCEDUEE IN THE COURTS Peoced- on the Sheriff in criminal and quasi-criminal matters ; THE ^^ but such explanations as are necessary of the pro- burgh; visions of such statutes will be given in connection ^°"^^^- with the relative decisions quoted in Part II. of this treatise. SECTION II. Procedure in the Courts of Royal and Parliamentary Burghs. 1. In the Courts of Royal Burghs. Erskine, in his Institutes, gives the following account of the criminal jurisdiction of the Magis- trates of Royal Burghs in his day : — " In criminal " matters they had, anciently the same privilege as "regalities of repledging from the Justiciary or " Sheriff, for which see Leg. Burg. c. 61 ; 1488, c. " 1 ; and they had by special statute (1426, c. 75) " the cognisance , of reckless or undesigned fire- " raising ; but their criminal jurisdiction hath been " much abridged by our latter usage. They are " still competent to petty riots, but they never had "jurisdiction in bloodwits, unless their grants car- " ried an express right of sheriffship, regality or " barony — Leg. Burg., c. 19, and Skene's Notes; " which special right hath been granted to Edin- " burgh, Stirling, Perth, and some other royal " boroughs. And indeed, when a royal borough is " entitled to any of these, it continues to enjoy a " jurisdiction, not only civil but criminal, as ample " as Sheriffs now have, or as barons or lords of " regality formerly had ; for by the Act 20 Geo. II. " all jurisdictions and privileges vested in any " royal borough are reserved in their full extent. " But this jurisdiction is only cumulative with, not " exclusive of, that of the Sheriff, for Sheriffs have " also the cognisance of all questions arising within OF ROYAL BURGHS. 37 " the bounds of the erected lands, except such as pboced- " are more closely connected with the public order the ^^ " or police of the borough ; in which, if the Sheriff, Buegh " who may possibly be a stranger to its condition, " were allowed to judge, the administration of the " magistrates might be embarrassed, and their " plans for the public interest defeated."^ Since then the exercise of their criminal juris- diction has been still further abridged, and that of the Sheriff has increased from various causes. In particular, " from the obvious inadequacy in general " of such functionaries to addressing a jury on " criminal matters,"^ jury trial has for long been discontinued in the Courts of Royal Burghs, and cases calling for that mode of trial are invariably remitted to the Sheriff. And as the trial of serious offences without a jury has been repeatedly dis- countenanced by the superior Court,^ the result is, that in practice the criminal jurisdiction of the Magistrates is confined to the preliminary investiga- tion of more serious crimes,* and the trial and punishment of inferior crimes and offences ; the procedure in the trial of these offences being usually regulated by a general or local Police Act, or by the Summary Procedure Act, 1864. But as the older forms of process are still competent, and are in use, at least in summary cases, a word must be said upon them. In I'rials by Jury. — The Act of Adjournal of l7th aot of March 1827, which applies indiscriminately to the ^^^ of^ Courts of the Sheriff and of Royal Burghs,^ is the i7th ruling authority ; procedure in jury trials, as dis- ^27.*^" tinguished from trials without a jury in the Burgh Courts, not having been materially affected by sub- sequent enactments. ' Erskine, i. 4, 21, and see Hume, ii. 70. = Alison, ii. 61. ' Hume, ii. 150, 151, and the case of Leonardo Piscatore, 1770, Maclaurin, No. 100, p. 722. * Hume, ii. 77. '' 6 Gen. IV., cap. 23, sec. 7, and preamble of Act of Adjournal. 38 PROCEDURE IN THE COURTS peocbd- The two leading amendments in the procedure the'" in jury trials in the Sheriff Court were — (1), The Cour" dispensing with taking down the depositions of witnesses in Avriting, effected by section 17 of 9 Geo. IV., cap. 29; and (2), The introduction of the double diet of compearance by section 35 of 16 and 17 Vict., cap. 80. Neither of these enact- ments applies to the Burgh Courts, and accordingly if a jury trial were now to take place in one of these Courts, there would be only one diet of coni- pearance, and it would be necessary that the evi- dence should be reduced to writing. 9 Geo. The general provisions of 9 Geo. IV., cap. 29, and 2llKtn 11 Geo. IV. and 1 Will. IV., cap. 37, as to citation Geo. TV. of witnesscs, &c., apply to the Burgh Courts where wS,L. not confined to the Sheriff or other Courts, either ly., CAP. expressly or by necessary implication. In Trials on a Criminal Libel without a Jury. — This mode of trial is also in disuse, but the rules applicable to the Sheriff Court, which have been already explained, apply also to the Courts of Koyal Burghs. In Summary Trials. — Sections 19 and 20 of 9 Geo. IV., cap. 29, apply only to the Sheriff Court, and until the passing of 19 and 20 Vict., cap. 48, in 1856, proceedings following on a summary com- plaint or summons in the Burgh Courts were con- ducted according to the former practice, which was by no means uniform. 19 AND 20 The Act of Adjournal of 17th March 1827 con- ZkTIs tains no provisions on the subject, and the only provision in 9 Geo. IV., cap. 29, which can possibly be held to apply specially to summary trials^ in the Burgh Courts, is that in section 18, to the effect that in trials without a jury no part of the proceed- ings which is not in use to be taken down in vn*iting in trials by jury need be so taken down, excepting 1 Sec. 18 of 9 Geo. IV , cap. 29, is generally lield to apply only to trials without a jury on a criminal libel ; tut this limitation is not expressed in the section. CAP' OF ROYAL BURGHS. 39 only the depositions of witnesses. Whether this sec- 19 and 20 tlon applies to summary trials or not, the evidence, J^'is. until 1856, had to be taken down in writing in all trials without a jury, including summary trials. By 19 and 20 Vict., cap. 48 (passed in 1856), the form of summary trial regulated by sections 19 and 20 of 9 Geo. IV., cap. 29, was within certain limits extended to the Courts of Eoyal Burghs and of Justices of the Peace. The Act proceeds on the narrative of the passing of the Acts 9 Geo. IV., cap. 29, and 11 Geo. IV. and 1 Will. IV., cap. 37, and that " it is expedient to facilitate the procedure " in prosecutions for offences before the Magistrates " of Royal Burghs, and before Her Majesty's Jus- " tices of the Peace in Scotland." Sections 1 and 2 are as follows : — " 1. Where tie prosecutor shall in his libel conclude for a fine not exceeding five pounds, exclusive of the costs of the prosecu- tion, which the said Magistrates and Justices are hereby em- powered to give, or for imprisonment not exceeding thirty days, accompanied when necessary witb caution for good behaviour to keep the peace for a period not exceeding three months, and under a penalty not exceeding ten pounds, it shall be lawftil to try such ofiences without the pleadings or evidence being reduced into writing; provided always that a record shall be preserved of the charge and of the judgment, including the names of the witnesses examined on oath, unless whete the accused pleads guilty, which shall be made to appear on such record. "2. The forms of procedure and regulations applicable to such trials shall be those which are established by the said recited Acts in regard to the summary trial of ofiences before the Sherifis of counties ; and the note of the evidence to be taken on such trials shall be made by the Clerk of Court, and shall be initialed at the end of each witnesses' evidence by the presiding Magis- trate or Justice." These provisions, it will be seen, differ from those in sections 19 and 20 of 9 Geo. IV., cap. 29, in two respects — First, The limit of jurisdiction, viz. the punishment concluded for, is restricted by one-half; Secondly, The note of evidence is directed to be made by the Clerk of Court, not by the Magistrate or Justice, and the evidence of each witness to be 40 PROCEDURE IN THE COURTS 19 AND 20 authenticated by the initials of the presiding Magis- caT48. trate or Justice. By section 3 the provisions of the Acts 14 and 15 Vict., cap. 27/ and 17 and 18 Vict., cap. 86,^ are extended to sentences pronounced under the Act. It is provided, however, by section 5 that nothing in the Act shall be held to supersede the provisions of any local Act regulating the procedure before Magistrates or Justices of the Peace in any burgh or county. For the procedure under the summary form of trial thus authorised, see supra, p. 32, et seq., and notes to Schedule (A) of the Summary Procedure Act, 1864. 2. In the Courts of Parliamentary Burghs. 3 AND 4 By section 20 of 3 and 4 Will. IV., cap., 77, the Will. rights, powcrs and jurisdiction of any Royal Burgh 77.' ^''^' is conferred upon Parliamentary Burghs, it being enacted — " That the Magistrates and To-wn Council to be elected for the said burghs or towns ^ under the authority of this Act, shall have such and the like rights, powers, authorities and jurisdiction as is or are possessed by the Magistrates and Council of any Royal Burgh in Scotland, and such rights, powers, authorities and jurisdiction shall extend equally over all and every part of the limits of such burghs or towns as described in the said recited Act of the second and third years of the reign of His present Majesty ; provided always that the Magistrates and Council of such burghs or towns shall not have the power of trying for crimes punishable by death or transportation ; and that the rights, powers, authorities, and jurisdiction hereby conferred shall in no case be exclusive of the authority and jurisdiction of any Admiralty Court or Dean of Guild Court now lawfully established, or of the Sheriff or Justices of the Peace of the county over the territory within the boundaries of said burghs or towns respectively." It has been doubted, and apparently with good 1 As to whipping of juvenile offenders, and sentences to hard labour ; this Act is repealed by 23 and 24 Vict., cap. 105, sec. 1. '^ "An Act for the better care and reformation of youthful offenders in " Great Britain;" repealed by 29 and 30 Vict., cap. 117, sec. .37. 3 Paisley, Greenock, Leith, Kilmarnock, Falkirk, Hamilton, Peterhead, Musselburgh, Airdrie, Port-Glasgow, Cromarty, Portobello and Oban. — See 3 and 4 Will. IV., cap. 77. OF PARLIAMENTARY BURGHS. 41 reason, whether the Act 19 and 20 Vict., cap. 48, Does the can be held to apply to Parliumentary Burghs. It ^oyu^^^ was passed many years after 3 and 4 Will. IV., cap. 4s,'' cap. 77, and yet it is confined expressly to the Pa?ifa.*° Courts of Royal Burghs and of Justices of the^entary Peace. This was probably an oversight, but it has ^ ' not been corrected. The question, however, is not of much practical importance, as the Parliamentary Burghs either have adopted or may adopt one of the General Police Acts ; which, if they do not by implication confer right to use the procedure re- gulated by 19 and 20 Vict., cap. 48,^ and 9 Geo. IV., cap. 29, authorise procedure at least as sum- mary, and confer jurisdiction (to employ a some- what loose expression) as extensive for practical purposes, as the procedure and jurisdiction autho- rised and conferred by the statutes last mentioned. SECTION III. PaOCEDUEE IN THE POLICE COUHTS UNDER GENERAL OR Local Police Acts. 1. Under the General Police Acts. The first General Burgh Police Act was 3 and 4 General Will IV., cap. 46 (1833). This Act was superseded S* by 13 and 14 Vict, cap. 33 (1850), which, again, was amended by 19 and 20 Vict., cap. 103, Part V. (1856), and 23 and 24 Vict., cap. 96 (I860). The three enactments last mentioned were re- pealed (except in so far as already adopted) and consolidated by 25 and 26 Vict., cap. 101 (The General Police and Improvement (Scotland) Act of 1862).^ This Act may be adopted by any Royal or Parlia- ' See sec. 408 of 25 and 26 Vict., cap. lOL = 25 and 26 Vict., cap. 101, sec. 1. 42 PROCEDUKE IN THE POLICE COURTS 25 AND 26 mentary Burgh, any Burgh incorporated by Act of J^^i'oi. Parhament, any Burgh of Eegality and Barony, or any " popidous place/' the boundaries of which have been fixed under 13 and 14 Vict., cap. 33, or under the Act of 1862 itself ^ The following is a short description of the cri- minal jurisdiction possessed by Magistrates or Com- missioners of Police acting under the authority of this statute, and the procedure prescribed by it : — Part VI., Section vi., containing clauses 408-438, both inclusive, deals with "jurisdiction and re- " covery of penalties." Jurisdiction. — Section 408 is as follows : — " The Magistrates of Police of a burgh under this Act, or any one or more of such Magistrates, shall have jurisdiction and power to take cognizance of all crimes, offences, misdemeanours and breaches of the police regulations hereinbefore contained, or of any bye-law made in virtue of the police provisions of this Act, and of any other crime or offence which is punishable by public general statute or common law, and is within the jurisdiction of the Magistrates of any Royal Burgh, and shall have all such and the like jurisdiction within such bui'gh as any Magistrate of a Royal Burgh, or any Dean of Guild of a Royal Burgh, has by the law of Scotland within the Royal Bui-gh in or for which he acts as such Magistrate or Dean of Guild." ^ Certain serious crimes and offences cannot com- petently be tried in the Police Court, — inter alia, the four pleas of the Crown ; the crimes of theft, reset of theft, falsehood, fraud and wilful imposi- tion, and breach of trust and embezzlement, when the money or article stolen, resetted, obtained or embezzled exceeds in value the sum of £10 ; assault to the danger of life, and other aggravated assaults, &c. &c. If it appears during the preliminary in- vestigation or during trial that a charge of one of the crimes enumerated is involved, the Magistrate commits the accused to prison for examination, and notice is given to the Procurator-Fiscal of the county in which the offence is charged to have been 1 25 and 26 Vict., cap. 101, seoa. 3 and 15. ' As to the powers of the Dean of Guild see Erakine, i. iv. 24. UNDER GENERAL OR LOCAL POLICE ACTS. 43 committed, in order, that the accused may be pro- 25 am 26 ceeded against conformably to law.^ ll^'ioi. The jurisdiction of the Sheriff and Court of Guild is reserved by section 438 :— " No jurisdiction conferred by this Act shall be held to exclude the jurisdiction of any Sheriff or Court of Guild, where the case shall, in the first instance, have been brought before or taken up by such Sheriff or Court of GuUd." Citation and Apprehension of Accused, and Cita- tion of Witnesses. — Whether citation of the accused is necessary depends on the nature of the offence charged.^ The Act is sufficient authority to constables for citing the accused and witnesses. The citation must state the nature of the charge, and time and place of appearance.^ Warrants for the apprehension or citation of accused persons, or for the citation of witnesses for the prosecutor or for the accused, where such wit- nesses are beyond the jurisdiction of the Magis- trates of Police, are sufficient, within Scotland, for such apprehension and citation, and for conveying offenders to be dealt with according to law, if backed or indorsed by the Sheriflf or any Justice of the Peace of the county within which the same are executed; provided they are executed by a con- stable acting under the authority of the police provisions of the Act.* Very wide powers of arrest are given by Sec- tion 117. The Superintendent of Police or any constable of police may, without any other warrant than the Act, apprehend any person found within the burgh committing any criminal, riotous, or dis- orderly conduct or act, or accused or suspected of having committed any crime or offence, whether competent to be tried by the Magistrates of Police 1 See. 413. « Graham v. Linton, H. C, Nov. 24, 1856, 2 Irv., 558. 3 Sec. 419. * Sec. 420. 44 PROCEDURE IN THE POLICE COURTS 25 AND 26 or not, or committed within or beyond the bounds Ir-ioi. oftheburgh.1 Procedure on Apprehension.- — Every person taken into or detained in custody by virtue of the Act may be detained in the pohce office or police cells, and shall be taken before the Magistrate not later than in the course of the first lawful day after he shall be taken into custody. " And if the nature of the crime or offence charged shall admit ' of its heing competently tried before the Magistrate under the provisions of this Act, it shall be lawful for him to grant warrant to commit such offender to the police cells, or to prison when remanded, for affording time to find bail or for further examina^ tion or trial, such further examination or trial always taking place as soon as circumstances shall permit, and without any unnecessary delay; or if the crime or offence charged shall, in the opinion of the Magistrate, merit a higher or greater punish- ment than he can lawfully award, it shall be lawful for him at any stage of the examination or trial to commit such offender to prison for examination ; or if the crime or offence charged, from having been committed beyond the limits of the burgh, or from being otherwise excluded from the juiisdiction of the Magistrate, falls to be tried in another jurisdiction, it shall be lawful for the Magistrate to commit • such offender to prison untU disposed of according to law ; in either of which last two cases it shall be the duty of the Superintendent of Police to give notice of such com- mitment to the Procurator-Fiscal or other proper officer for the city, county, burgh, or other jurisdiction within which the crime or offence was committed, in order that such offender may be fui-ther proceeded with according to law." ^ Liberation on Bail or Deposit. — Upon the appre- hension of any person charged with any olfence under the Act, or with any crime which may be competently tried before the Magistrate, the Super- intendent of Police, or other officer having charge in his absence, may liberate the accused on his finding bail, or making a deposit to an amount not exceeding £20, as a guarantee for his attendance at all after diets of Court ; but if the superintendent or other officer sees cause, he may refuse to accept 'Sec. 117. « Sec. 4 IS: UNDEK GENERAL OR LOCAL POLICE ACTS. 45 such bail or deposit, and is not liable to any claim 25 and 26 for damages in respect of such refusal. ^ ^^"^^v, • " ^ CAP. 101. Forms of Procedure in the Police Court. The Instance. — All actions, prosecutions, and proceedings for crimes and oifences committed within the burgh (including all crimes and offences at common law, or under public general statute not excluded by section 413), or for recovery of fines, &c., under the police provisions of the Act (the mode of recovering which is not otherwise provided for), shall be sued in the Police Court before the Magistrates of Police at the instance of the Pro- curator-Fiscal appointed 2 by the Magistrates for the purposes of the Act.^ The Complaint. — No form of complaint is given, but there should be a complaint * written or printed, or partly both, and signed by the prosecutor, although it is not always necessary that it should be served, or even that it should be viritten out before the trial begins. Compare Bisset v. Mackay, H. C, March 3, 1855, 2 Irv. 68, and Cogan or Devany v. Anderson, H. C, Dec. 16, 1854, 1 Irv. 588. Where the charge is one of theft, reset of theft, falsehood, fraud, and wilful imposition or breach of trust and embezzlement, the complaint must bear that the articles stolen, resetted, ob- tained by falsehood, fraud, and wilful imposition or embezzlement does not exceed £10.^ It is not competent to any party who shall appear to answer to any complaint to plead want of due citation or informality in the warrant, citation, or execution. If the accused wishes to prove that the value of the money or article which he is charged with 1 Sec. 417. " Sees. 409, 410. 3 Sec. 411. * This is plain from the terms of Sec. 411. ^ Sec. 411. Where two or more charges of theft or reset are tried unrler one complaint, it must appear on the face of the complaint that the value of the whole articles is under £10. — Law v. Munro, H. C, March 6, 1855, 37 Sc. Jur. 355. 46 PROCEDURE IN THE POLICE COURTS 25 AND 26 having stolen, resetted, obtained or embezzled, ex- ^Tioi. ceeds £10, he must offer to do so at the time, — that is, at the hearing.^ The whole procedure before the Magistrates is conducted summarily viva voce, and without written pleadings ; and no record need be kept except the complaint and the judgment pronounced thereupon.^ Sections 423 and 424 provide for the imposition of penalties and punishments on witnesses refusing to give evidence or prevaricating. Where it is necessary to adjourn the diet, and the accused's witnesses are in attendance, the Magistrate may, if he deems it proper, at the re- quest of the accused, take the evidence of the said witnesses before the proof for the prosecution has been led or concluded ; but in such cases the ac- cused shall be entitled to lead additional evidence after the prosecutor's case has been concluded.* The Magistrates of Police are authorised and required, with the approbation and advice of the Lord Justice-General and Lord Justice-Clerk, when necessary, to frame rules and regulations and forms of procedure, and to alter and amend the same from time to time.* Limitation of Sentences of Imprisonment for Non- Payment of Penalties, &,c. — No period of imprison- ment for non-payment of pecuniary penalties shall exceed sixty days ; but when the accused is or- dained to find caution for good behaviour from and after the expiry of his sentence of imprisonment, or payment of the fine or penalty, and fails to do so, he may be detained in prison until caution is found, provided the whole period of imprisonment does not exceed ninety days.^ I Sec. 411. ^ Ibid. a gee. 421. ^ Sec. 412. When rules and regulations are so framed, they have the force of statutory enactments and must be- closely followed. — Mahon v Morton, H. 0., Feb. 6, 1856, 2 Irv. 383 ; Lrnie v. Buclian, H. C, June 9^ 18B7. 5 Irv. 423 ; and Oogan or Devany v. Anderson, supra. ^ Sees. 425, 426, 427. By sec. 29 of the Summary Procedure Act it is provided that sentences of Police Judges acting under statutes in which their powers are not defined shall not exceed (a) a penalty of £5, or (5) im- UNDER GENERAL OR LOCAL POUCE ACTS. 47 Limitation of Prosecutions. — Prosecutions, &c. 25 and 26 under the provisions of the Act must be commenced ^^loj. within three months from the time at which the facts on which they were brought shall have been discovered or known, and not thereafter. 1 Review. — "No order, judgment, record of conviction, or other proceeding whatsoever, concerning any prosecution instituted before the Magistrate by virtue of this Act, shall be quashed or vacated for any misnomer or informality ; and all judgments and sentences pronounced by the Magistrate shall be final and conclusive, and not subject to suspension or advocation or appeal, or any other form of review, or stay of execution, unless on the ground of cor- ruption, malice, or oppression on the part of the Magistrate, or of such deviations in point of form from the statutory enactments as the Court of review shall think took place wilfully, or of incom- petency, including defect of jurisdiction of the Magistrate ; and such suspension, or advocation or appeal, or review or stay of execution, must be presented before the next Circuit Court of Justiciary, or, where there are no Circuit Courts, before the High Court of Justiciary at Edinburgh, in the manner, and by and under the rules, limitations, conditions, and restrictions, which shall from time to time be prescribed by the said High Court of Justiciary." " And by section 437 it is provided that " Wherever any act, decision, determination, declaration,- or de- " liverance of any Sheriff or Magistrate, or Preses of a meeting, " Commissioner or Commissioners, or other person whatever, is by " this Act declared to be final, the same shall not be subject to be " set aside or reviewed or affected by any Court or Judicature, " upon any ground or in any manner of way whatever." The meaning and effect of these and similar clauses are fully considered in Part II. hereof 2. Procedure under Local Police Acts. Many of the large towns have Local Police Acts framed on the model of the General Police Act, prisonment for sixty days, and (c) caution to keep tlie peace for six months under a further penalty, of £10, and, in default of caution, further imprison- ment for thirty days. I Sec. 416. ^ Seo. 430. 48 - PROCEDURE IN THE POLICE COURTS. liceacts' ^^^ varying considerably in the extent of the juris- '^^' diction conferred, and the nature of the procedure prescribed. It is impossible here to attempt to give any account of these Acts. Other difficulties apart, their provisions are in many instances com- plicated by piecemeal amendments and additions effected by subsequent local Acts, by rules and regulations framed by the Magistrates or Com- missioners, or by the total or partial adoption of one of the General Police Acts, which by statute has the effect pro tanto of repealing the local Acts or regulations previously in force. ^ To take as an instance the case of Edinburgh, the existing local police enactments and regulations are derived from at least five different sources : — 1. The Edinburgh Police Act, 1848, 11 and 12 Vict., cap. cxiii. 2. The Municipality Extension Act, 1856, 19 and 20 Vict., cap. xxxii. 3. Edinburgh Police Amendment Act, 1854, 17 and 18 Vict., cap cxviii. 4. Edinburgh Provisional Order, 1867, con- • firmed by 30 and 31 Vict., cap. 58. 5. Various clauses adopted from the General Police Act, 25 and 26 Vict., cap. 101. Under section 80 of the Edinburgh Police Act of 1848, and section 63 of the. Edinburgh Municipality Extension Act, 1856, the Sheriff sits in his turn as Judge in the Police Court. The last Glasgow Police Act is 25 and 26 Vict., cap. cciv. (1866). In Part II. of this treatise instances will be found of questions which have arisen under some of these Local Pohce Acts; such of their pro- visions as are necessary for explanation are there quoted or described. ' 25 and 26 Viot., cap. 101, sec. 18. ■ PROCEDURE BEFORE JUSTICES OF THE PEACE. 49 SECTION IV. Peoceduee befoee Justices of the Peace. Before the passing of the Summary Procedure Act, procedure in these Courts, in prosecutions for offences . or recovery of penalties, was regulated as follows : — 1. In prosecutions at common law, or under 19 and 20 statutes which authorised prosecutions or suits for ^l^'i^ penalties, but did not prescribe any particular pro- cedure, the forms directed by 9 Geo. IV., cap. 29, sections 19 and 20, and made applicable by 19 and 20 Vict., cap. 48, were used from and after the year 1856.^ Before that time the evidence had to be re- duced to writing in every case, unless this was dis- pensed with by the special statute. ' 2. Where the statute conferring jurisdiction, and. authorising the prosecution or suit, prescribed forms of procedure, such forms had to be followed implicitly, under pain of the proceedings being quashed, on accoxmt of deviations from the statutory forms. The Summary Procedure Act virtually supersedes Special the procedure directed by special statutes (although Statutes. they may still be used), and in this respect has proved of greater benefit to the Justice of Peace Courts than to any other inferior Court. A great part of the criminal jurisdiction of the Justices is derived from special statutes ; for instance — The Pawnbrokers Act, 39 and 40 Geo. III., cap. 39 ; The Combination Act, 6 Geo. IV., cap. 129 ; The Night Poaching Act, 9 Geo. IV., cap. 69; The Day Trespass Act, 2 and 3 Will. IV., cap. 68; The General Turnpike Act, 1 and 2 Will. IV., cap. 43 ; 1 See supra, p. 39. D •50 PEOCEDUEE BEFOEE JUSTICES OF THE PEACE. I™es The Public Houses Acts, 9 Geo. IV., cap. 58 ; 16 and 17 Vict, cap. 67 ; and 25 and 26 Vict., cap. 35 ; The Weights and Measures Acts ; The Master and Servant Acts, 4 Geo. IV., cap. 34 (1823) ; -and 30 and 31 Vict., cap. 141 (1867) ; and many others. Some of these statutes give directions as to pro- cedure, and some do not. Many of those which do so are statutes of the United Kingdom ; and the forms provided are in many cases adapted from English forms, and with no regard to Scotch criminal procedure.! The Summary Procedure Act provides^ that " the " proceedings in any action or complaint for the " prosecution for offences or recovery of penalties " under any Act of Parliament, may either be " according to the form prescribed by such Act, or " any Act incorporated therewith, or according to " form prescribed by this Act." The Summary Procedure Act does not apply to proceedings under the Poor Law Act, or under the Revenue Statutes.^ ' See Byrnes d-c. v. Dick, H. C, Feb. 23, 1853, 1 Irv. 145, per Lord Justioe-Clerk, p. 158 ; and Knox v. Scmsay, H. C, July 7, 1837, 1 Swin. 617. ' Sec. 32. 3 Sec. 25. CHAPTER II. SECTION I. The Passing of the Summary Procedure Act, 1864. In the year 1848 there was passed an English Statute, 11 and 12 Vict., cap. 43, intituled "An " Act to facilitate the performance of the duties of " Justices of the Peace out of Sessions within " England and Wales with respect to Summary "Convictions and Orders;" which, in 1857, was supplemented by another English Statute, 20 and 21 Vict., cap. 43, intituled "An Act to improve " the administration of the law so far as respects " Summary Proceedings before Justices of the " Peace." By the latter statute Justices were re- quired, on the appUcation of the party aggrieved by the determination of the Justice in point of law, to state and sign a case setting forth the facts and grounds of such determination, for the opinion thereon of one of the superior Courts of law, to be named by the party. The Scotch Summary Procedure Bill of 1864 was adapted from the former Statute, 11 and 12 Vict., cap. 43, but when first introduced did not contain any provisions for review similar to those in 20 and 21 Vict., cap. 43. During the course of the Bill through the House of Commons this omission was discovered, and certain appeal clauses were inserted, being sections 31 to 43, both inclusive, of the Bill as it left the House of Commons. On the narrative that it was expedient that pro- vision should be made for obtaining the opinion of a superior Court on questions of law arising in the 52 THE PASSING OF exercise of summary jurisdiction by appeal, it was declared that the Court of appeal for cases of a criminal nature should be the Court of Jus- ticiary, at its ordinary sittings in Edinburgh or on Circuit; for other (i.e. civil) cases, the Court of Session, in either Division thereof.^ Either party being dissatisfied with the judg- ment of any Sheriff, Justices or Justice, or Magistrate, on the ground of the determination complained of being erroneous in point of law, might apply to the said Judge to state and sign a case setting forth the facts and the grounds of such determination, for the opinion of the Court, of appeal having jurisdiction.^ Then followed de- tailed directions as to the framing of the case, fees to be paid to the Clerk of Court, and the trans- mission of the case to one of the Clerks of Justiciary, or of the Division of the Inner House to which the appeal was taken, with a Certificate of Intimation of the appeal to the opposite party. All appeals to the Court of Justiciary were to be disposed of by the High Court at its ordinary sittings in Edinburgh, unless the same were marked to the Circuit.^ The case, when received by the Clerk of the superior Court, was forthwith to be laid before a Judge of the Court of Justiciary, or of the Court of Session, according as the case was civil or criminal, who, if the appellant was in custody, was empowered to grant interim liberation, upon the conditions usual in cases of suspension and liberation, and also to grant a sist of execution, with or without caiition, or make such other interim order as justice might require.* The provisions for the hearing of the case, the application of the judgment of the Court of appeal, and the ordering a case to be stated when the inferior Judge refused to do so,^ were sub- stantially the same as those contained in the 1 Sec. 31. ' Sec. 32. ' Sec. 33. * Sec. 34. " Sees. 36, 37, and 35, 38. THE SUMMARY PROCEDURE ACT, 1864. 53 Summary Prosecutions Appeals (Scotland) Act of 1875. Sections 39, 40, and 41 were as follows : — " 39. Where, by any Act of Parliament now in force, Jurisdiction is given to any Court or Judge for the trial of any offence, or the determination of any matter which may be tried or determined by complaint under this Act, and where, by such Act or any relative Act, the Jurisdiction of the Court of Justiciary or the Court of Session, as Courts of review, is excluded or restricted, such exclusion or restriction of review shall, subject to the following exception, be deemed and taken to apply to review by appeal under this Act, as well as to review by Advocation, Suspension or Re- 7 yv^iH- duction ; and the provisions of the fourth recited vioCoap. Act excluding the review of the superior Courts ^i- shall be applicable to judgments under this Act, for penalties not exceeding eight pounds, six shillings and eight pence, which shall not have been followed by Imprisonment; provided that, notwithstanding any such exclusion or restriction of review, it shall be lawful for such Court or Judge, ex proprio motu, to state a case for the opinion of the Court of appeal under this Act, upon any question of difficulty or importance arising on the construction of the Act under which the proceedings are taken, and to direct that the expenses of the Procurator -Fiscal, or any other public prosecutor appearing to support the judgment in the Court of appeal, shall be paid out of the rogue-money of the country. "40. It shall not be lawful for the Court of Justiciary or for the Court of Session to receive any Bill or Note of Suspension or Advocation, or any Summons of Eeduction of any judgment or determination pronounced upon a complaint instituted under the provisions of this Act, either on the ground of defect of jurisdiction or on any 54 THE PASSING OF ' other ground whatsoever ; but it shall be lawful ' for the Court of appeal under this Act to grant ' relief against the judgment or determination of ' any Sheriff, Justices or Justice, or Magistrate, ' assuming to exercise jurisdiction in relation to ' such complaint upon a case stated and signed ' by such Sheriff, Justices or Justice, or Magistrate. " 41. Where, under the provisions of any Act of ' Parliament now in force, any judgment or deter- ' mination upon a complaint under the provisions ' of this Act' might be appealed by presenting a ' Note of Appeal to the High Court of Justiciary at ' Edinburgh, or to the Circuit Court of Justiciary, ' or to Justices of the Peace in Quarter Sessions, ' such appeal shall no longer be competent, but in ' lieu thereof it shall be lawful to bring such judg- ' ment or determination under the review of the ' Court of appeal under this Act upon a case ' stated and signed as aforesaid," These provisions were important. While, in proceedings under the Summary Procedure Act, appeal was declared not to be competent where review was excluded or restricted by the special statute giving jurisdiction for the prosecution or trial, the Court or Judge was given the important power of stating a case for the opinion of the Court of appeal propria motu on any question of diflBculty or importance arising on the construction of the special statute. Further, the mode of appeal provided was intended, in regard to complaints brought under the Act, to supersede entirely the existing modes of review at common law on any ground whatever, including the ground of defect of jurisdiction ; and also to abolish the right of appeal under the provisions of any Act of Pariiament to the High Court of Jus- ticiary at Edinburgh, or to the Circuit Court of Justiciary, or to the Justices of the Peace in Quarter Sessions ; the new mode of Appeal by a case stated i THE SUMMAKY PROCEDURE ACT, 1864. 55 and .signed being substituted therefor, and an alleged defect of jurisdiction being one of the grounds on which such a case might be demanded. These clauses, it will be seen, provided a compre- hensive and uniform mode of obtaining review in all summary cases brought under the Act. In effect they placed it in the power of the complainer, by bringing his complaint under the Act, to exclude review by the Justices in Quarter Sessions, and to limit review by the Court of appeal to questions of law or defect of jurisdiction. On the other hand, the accused, if convicted, had the power of giving a good deal of trouble to the inferior Judge and his clerk, and also to the complainer, " objections " in law " being not easily dej&ned or restricted. Accordingly, considerable opposition was created among the parties likely to be affected. It is not here necessary to inquire into the causes which led to this opposition. It may be that it was thought that a good deal of additional labour would be thrown upon the Justices and their clerks in the preparation of the cases, and that the amount of the remuneration proposed was inadequate. But the main objections stated were, that it was pro- posed to take away the power of review conferred on the Justices in Quarter Sessions by many im- portant statutes, for the administration of which they formed the best tribunal, and possessed the confidence of the country ; that the superior Courts were already too strict in quashing convictions, and were inclined to magnify every trifling defect in form into a defect in law ; that a right of appeal so broad and so imperfectly guarded as that proposed would open the door for the escape of criminals ; that it would either lead to the prosecutor not ap- pearing on account of expense, or burden him with expenses which he could never recover ; and lastly, that if the inferior Judge refused to state a case, he would be forced to assume the position of a litigant, and might even be found liable in expenses. 56 THE PASSING OF The opposition was successful. It was seen tKat, if the appeal clauses were retained, the Bill could not pass the second reading in the House of Lords. They were accordingly struck out, and, the Act was passed in its present shape. The Act, as passed, effected many valuable im- provements in the summary procedure of inferior Courts, but, in consequence of the appeal clauses and other provisions depending on them having been struck out, it was open to one serious objec- tion. The 17th section of the Bill, as it left the House of Commons, was amended in the House of Lords, and now forms section 16 of the Act. These sections are as follows : — The 17 th Section of the Bill. " It shall not be necessary in ' any proceeding under the ' authority of this Act to record ' or to preserve a note of the ' evidence adduced, but the re- ' cord shall set forth, in the ' form of the Schedule (I) to ' this Act annexed, the respon- ' dent's plea, if any, the names ' of the "witnesses, if any, ex- ' amined upon oath or affirma- ' tion, with a note of any docu- ' mentary evidence that may be ' put in, and the conviction or ' judgment; and the Judge shall ' also, if required, take a note ' of any offer of proof made by ' either of the parties and re- ' fused to be admitted, any ' objection to the admissibility ' of evidence sustained or re- ' pelled, and any objection to ■ the relevancy or competency ■ of the charge or proceedings ■ to "which he may not have ' thought proper to give effect ' by amendment of the com- plaint in manner herein before provided ; and the Judge may The IQth Section of the Act. " It shall not be necessary in. any proceeding under the authority of this Act to record or to preserve a note of the e"vidence adduced, but the re- cord shall set forth, in the form of the Schedule (I) to this Act annexed, the respon- dent's plea, if any, the names of the "witnesses, if any, ex- amined upon oath or affirma^ tion, "with a note of any docu- mentary evidence that may be put in." THE SUMMARY PROCEDURE ACT, 1864. 57 " require from the party or his " agent a suggestion in ■writing " of the matter which he desires " to have set forth in such note, " but shall not be bound po set " forth the same in the words " suggested, and shall not be " bound to note any objection " which, in the opinion of the " Court, is merely frivolous." The first part of the original section, it will be seen, still remains. It confers a very important power upon inferior Judges which they did not before possess. Under sections 19 and 20 of the Act 9 Geo. IV., cap. 29, the Sherifi" is required, in proper summary cases, to preserve a note of the evidence taken by him, for the purpose of exhibition, if called for by the Court of Justiciary; and further, it is im- perative that the record shall set forth, if either party desire it, aiiy offer of proof made by either of the parties and refused to be admitted, and likewise, if so desired, any objections to the admissibility of evidence sustained or repelled by the Court ; and by 19 and 20 Vict., cap. 48, this procedure is made applicable to such summary cases tried before Magistrates of Koyal Boroughs and Justices of the Peace. These provisions afford means of review by the superior Court on the merits, and upon questions as to the admission or rejection of evi- dence. Now, section 17 of the Bill, as it left the House of Commons, on the one hand virtually excluded the power of review on the merits by making it no longer necessary for the Judge to take a note of the evidence. On the other hand, it pro- vided facilities for the exercise of the right of appeal on questions of law by re-enacting the pro- visions above mentioned, requiring the Judge to take a note of any offer of proof refused or objection to evidence sustained or repelled,^ and also by requiring ^ Namely those in 9 Geo. IV., cap. 29, sec. 19. 58 THE PASSING OF the Judge to note objections to the relevancy or competency" of the charge or proceedings to which he might not have thought proper to give effect by amendment of the complaint; and the appeal clauses provided a complete remedy against any error in point of law, or any defect of jurisdiction on the part of the inferior Judge. • But the result of the alterations on the Bill in the House of Lords was, that the determination of the inferior Judge was virtually made final on the merits in many cases; while even the previously existing statutory provisions for noting an offer of proof or objections to evidence were made no longer imperative in proceedings under the Act. On the other hand, the liability to review on the law, which was intended to have acted as a counterpoise to finality on the merits, was removed by striking out the appeal clauses. The Act at first created some alarm in the minds of many experienced judges and lawyers, and in the earlier cases which occurred under it there are to be found some strong expressions from the Bench as to the danger of dispensing with a note of the evidence, and of objections to the admission or rejection of evidence. It appears to me that these apprehensions have not been borne out by the working of the Act during the last ten years. I believe that, on the whole, it has worked well, and certainly there have been comparatively few cases of miscarriage in con- sequence of its provisions. This, it may be said, shows that the experiment of making the deter- mination of the inferior Judge in summary causes final on the facts has been successful, and may safely be continued. It may be so, but it must be borne in mind that in cases under the Act we have some- times had to thank the natural vigour of the common law power of review possessed by our superior Courts, for correction of and redress against mistakes in law, or in essential parts of procedure. Objections in THE SUMMARY PROCEDURE ACT, 1864. 59 point of law, or in respect of material irregularities in procedure, have been scrutinized even more strictly than before, because review on the merits was excluded. But owing to the absence of any ready means of verifying such objections, — there being no record of what took place in the inferior Court, — great inconvenience and expense have been caused to the parties. Before allowing a proof of alleged irregular or oppressive procedure, the superior Court most properly requires averments both specific and relevant. Often the practical difficulty of proving the objection, however relevant it may be, is deemed insurmountable, and no proof is allowed, in cases in which a note of the objection on the record, made and authenticated at the time, would have removed all difficulty. Again, hardships quite as great are inflicted on respondents in cases in which an investigation or proof takes place; the complainer, in order to obtain a proof, makes his averments relevant enough, but after a long and expensive proof has been taken, and unnecessary and irrecoverable expense been incurred by the opposite party, the complainer's statements are ascertained to be unfounded. The recommendations of the recent Scotch Law Commission on the subject are as follows :^ — " Cases tried summarily by the Sheriff without " a jury are in most sheriffdoms tried under the " forms in use prior to the passing of the Summary " Procedure Act of 1864. These forms require a " note of the evidence and of all objections thereto " to be kept. There are thus means of disposing " of any appeals which may be brought. This " form, though not now imperatively required in " summary cases, is, we believe, still generally " adopted in the Sheriff Courts, even in the less " serious of that class of cases ; but in some Sheriff" 1 Sth Report (1871), r- 16. 60 THE PASSING OF " Courts, and almost universally in the Justice of " Peace Courts, it is usual to adopt the provisions 27 and 28 " of the Summary Procedure (Scotland) Act, 1864. viot.,cap. « That Act provides that no note of the evidence " need be kept. There is no provision that parties " may call upon the Judge to make a note of it, or " of objections. There is no provision for review, " and there are no materials for review, either on " the evidence or on the law. The result of this " state of matters is, that while the ordinary criminal " proceedings of the Sheriff Court, where a paid " and professionally trained magistracy presides, are " subject to review, the provisions of the Summary " Procedure Act have practically made the pro- " ceedings of the unpaid and unskilled magistracy " final and exempt from review in a large and " important part of their jurisdiction, as with regard " to questions between master and servant, and " with regard to the Public House Acts, &c. " We recommend that in all cases it should be " imperative on the Judge to keep a note of the " evidence, and of objections and answers, if re- " quired by either party to do so ; also that pro- " vision should be made for having a case stated " for the opinion of the Court of review, similar " in principle to the provisions for review in the " English Summary Procedure Act. The mode of " obtaining review by stating a case has long " existed, and we believe has worked well under the " Revenue, Assessed Taxes, and Valuation Acts ; " and we have no reason to doubt that it would " work well also under the Summary Procedure " Act." These recommendations have to a certain extent been given effect to by the Summary Prosecutions Appeals (Scotland) Act, 1876, which is dealt vrith hereafter. It is sufficient to mention here that in that statute provision is made for stating a case on points of law THE SUMMARY PROCEDURE ACT, 1864. 61 for the opinion of the High Court of Justiciary or either Division of the Court of Session, according as the jurisdiction in the cause is of a criminal or a civil nature, " notwithstanding any provision contained " in the Act under which such cause shall have " been brought excluding appeals against or re- " view in any manner of way of any determination, " judgment, or conviction or complaint under such " Act." — (section 3). By the interpretation clause (section 2) the word " cause " is declared to mean and include " every proceeding which may be " brought under the Summary Procedure Act, 1864, " and every other summary proceeding for the pro- " secution of an offence or recovery of a penalty " competent to be taken before an inferior Judge." It also contains the following provision, which materially quahfies section 16 of the Summary Procedure Act, 1864, that " In order to an " appeal under this Act it shall be competent " for any party to a cause to require the Sheriff, or " Sheriff-substitute where the cause depends before " him, or the Clerk of the Court where the cause " depends before any other inferior Judge, to take " and preserve a note of any objections to the " admissibility of evidence sustained or repelled by " such Sheriff, Sheriff-substitute, or other inferior "Judge."' SECTION ir The Summary Prooeduee Act, 1864. It has been thought advisable to give the Act itself with notes, instead of a synopsis ; but the following points may be noted by way of introduction : — 1. The Act, as appears from its title, was passed 1 Sec. 6. 62 THE PASSING OF to make provision for uniformity of process in sum- mary criminal prosecutions and prosecutions for penalties in the inferior Courts in Scotland. The word " Court " is defined to mean " any Sheriff " Court or Burgh Court, or any Court of Justices " of the Peace for any county or city in Scotland, " whether in Quarter or Petty Sessions, any Police " Court having jurisdiction, or any Sheriff, Magis- " trate of any burgh, or Justice or Justices of the " Peace for any county or city in Scotland, exer- " cising jurisdiction under the authority of any " Act of Parliament in any matter which may " lawfully be brought before him or them in the " manner provided by this Act." The procedure is very much the same as that provided by Sir William Rae's Act. The importance of the measure lies in that procedure being made appli- cable to the many statutes authorising prosecutions for offences and the recovery of penalties, which either contain no specific directions as to procedure, or enjoin procedure adapted to the English and not to the Scotch forms of process. — See the cases of Knox V. Ramsay, H. C, July 7, 1837, 1 Swin. 517 ; and Byrnes and Others v. Dick, H. C, Feb. 23, 1853, 1 Irv. 145. 2. Again, in many statutes affecting the public interest no prosecutor is specially named, and accordingly offences committed and penalties in- curred were often not prosecuted or sued for. To remedy this the Act provides that where no special provision is made for the recovery of penalties, they may be sued for by the Procurator-Fiscal of the jurisdiction (section 4) ; and in order to encourage the Procurator-Fiscal to discharge these duties, it is provided that no Procurator-Fiscal, or other party prosecuting for the pubhc interest, shall be liable in damages in a greater sum than £5, unless malice and want of probable cause is averred and proved (section 30). 3. The Act is permissive, with certain excep- THE SUMMARY PROCEDURE ACT, 1864. 63 tions mentioned in sections 27 ^ and 31 ; it is still competent to use the procedure authorised by the first three Acts recited in the preamble, or by special statutes authorising prosecutions (sections 3 and 32). 4. The leading feature of the Act is, that it regu- lates procedure. It does not confer upon the in- ferior Judge any other or more extensive jurisdiction than that which he possessed before, in relation to any matter which may be made the subject of complaint (section 27) ; and it does not supersede, enlarge, or limit the provisions for review contained in special statutes. Accordingly, where there is room for doubt, it is to be construed in the sense which is most consistent with leaving the law as it previously stood untouched. 5. From this it follows that no case can be tried summarily under the Act which could not be tried summarily before ; and that where a right of appeal is given by special statute, this Act does not take such right away. 6. Section 16, as we have seen, enacts that it shall not be necessary in proceedings under the Act for the Judge to preserve a note of the evidence adduced. This applies to all prosecu- tions at common law, or under statutes which contain no special provisions for review. The common law obligation to preserve a note of the evidence adduced is thus abolished in such cases, and review on the merits excluded. 7. The 28th section defines the limits of civil and criminal jurisdiction, as to which great uncertainty prevailed. Questions frequently arose whether the offence charged was malum in se or malum prohibi- tum ; and if the latter, whether the case was rendered criminal quoad review by the procedure enjoined by the statute. This led to many cases, which were brought by suspension or appeal before the Court of 1 The wordmg of this section is not very distinct ; but it seems to declare that the forms provided by the Small Debt Act, 18.'37, in prosecutions for pecuniary penalties, are superseded by the Summary Procedure Act. 64 THE SUMMARY PROCEDURE ACT^ 1864. Session and Court of Justiciary respectively, being dismissed on the ground that they had been brought to the wrong Court. The test prescribed by section 28 is the sentence which may competently be pro- nounced. It declares that those proceedings shall be deemed and taken to be of a criminal nature where, in pursuance of a conviction or judgment, or as part of such conviction or judgment, the Court shall be required or shall be authorised to pronounce sen- tence of imprisonment against the respondent, or in default of payment or recovery of a penalty or expenses, or in case of disobedience to their order, to grant warrant for the imprisonment of the re- spondent for a period limited to a certain time, at the expiration of which he shall be entitled to hberation; and that in all other proceedings the jurisdiction shall be held to be civil. This definition is solely for the purpose of fixing the Court of re- view; and it renders the summary procedure of the Court of Justiciary applicable to many cases which formerly had to be taken to the Court of Session, and run the more prolonged course of a civil process. THE SUMMARY PROCEDURE (SCOTLAND) ACT, 1864. 27 )- . . . " Beyond all question, a warrant is illegal which should Search " authorise officers to search everywhere for stolen goods generally, ■"'arants, " without specifying either the goods sought for or the houses sus- -netent " pected. If the former is not known and specified, the latter " must be enumerated by place and name." — Alison, ii. 146, 147. Accordingly, in Webster v. Bethune, H. C, Feb. 7, 1857, 2 Irv. 596, a search warrant, which contained no statement as to the time when, or the person by whom, the articles had been stolen, or as to the houses to be searched, was suspended as illegal. When the articles to be searched for are not stolen goods still more care is required. In Bell v. Black amd Morrison, H. C, Jan. 30, Bell v. 1865, 5 Irv. 57, joint Procurators-Fiscal, in the course of taking a Mack and precognition against a person named Pringle, on a charge of conspir- •"O""*"'""- ing to murder, (fee, presented a petition to the Sheriff stating that cer- tain persons other than Pringle, particularly the suspender Bell, had been engaged in the said conspiracy, and that they (the petitioners) had reason to believe " that written documents and other articles " referring to and connected with the said conspiracy " were in the possession of Bell and others. The prayer was " to grant warrant " to officers of Court and their assistants to search the dwelling- " house, repositories, and premises at Glenduckie, occupied by the " said John Bell, Previously to the passing of the Act 39 and 40 Vict., cap. 152 cases from Peehlesshire were tried or heard on appeal on Circuit at Jedburgh " A Winter Circuit is held every year at Glasgow. See aupra, p. 158 ,Ainr. THE COURT OF JUSTICIARY. 159 THE NOETH CIECUIT— ThkCib- Dundee^ for the shire of Forfar. coraTsor Perth, for the shires of Perth and Fife. ^^^™^- Aberdeen, for the shires of Aberdeen, Banff"* and Kincardine. Inverness, for the shires of Inverness, Ross, Elgin, Nairn, Cromarty, Sutherland, Caithness, and the shire and stewartry of Orkney and Shetland. ^ Cases from the three Lothians, viz., the shires of Edinburgh, Haddington and Linlithgow, and from the shire of Peebles, are taken to the High Court. Cases for trial from the stewartry of Orkney and Shetland are taken to the High Coiu-t in Edin- burgh, not because the High Court has any ex- clusive jurisdiction in cases from the stewartry, but on account of the difficulty of conveying prisoners and jurymen to Inverness, communication with Edinburgh being more direct. But an appeal from the Small-Debt Court of Shetland at Lerwick was held to be competently presented to the Circuit Court at Inverness.* Quorum. — It will be remembered that it is di- rected by the Act 1672, cap. 16, that two Judges be appointed for each of the three Circuits. It being doubted whether the presence of both Judges was absolutely essential to the valid discharge of busi- ness, it was provided by 20 Geo. II., cap. 43, sec. 32, that either of the two Judges might proceed to business in the absence of his colleague " through " indisposition or other necessary avocation," unless the Lord Justice-General was present.* 1 Dundee was made a Circuit town by an order in Council, dated 30th November 1864. '^ Although the stewartry is named in the Act of Adjournal as belonging to the Inverness Circuit, no prisoners are tried there, and no jurors are cited to attend. See the case of WalTcer v. Moar, infra. ■ ^ Walker 'V. Moar, Inverness, Sept. 15, 1870, 1 Couper, 466. * Until ] 830 the Lord Justice-General could not hold a Circuit Court alone or with one other Judge (Hume, ii. 23). By 2 Geo. IV., and 1 Will. IV., cap. 69, sec. 19, he is empowered to do so ; but except in the case of one of the other Judges being unable to attend, he does not go on Circuit, the work being left to the Lord Justice-Clerk and five Lords Commissioners of Justiciary. See supra, p. 153, note 3. AEY. 160 THE CONSTITUTION AND ARKANGEMENTS OF The ciB- By 11 and 12 Vict, cap. 79, sec. 8, two Judges are Courts or empowered to sit in separate Courts simultaneously JusTioi- at the Glasgow Circuits, for the more rapid dispatch of business ; and this power is extended to the dis- patch of business at the other Circuit towns by 31 and 32 Vict, cap. 95 (The Justiciary (Scotland) Act 1868), sec. 2. By sec. 3 of the last^named Act it is provided, to meet the event of business at a Circuit town not having been disposed of by the time fixed for meeting at the next Circuit town, that it shall be competent for one of the Judges to proceed to the next Circuit town and open the Court and dispatch business there, notwithstanding the continuance of the sitting of his colleague at the other town.^ When two Judges are present at a Circuit town, one sometimes hears and decides appeals, while the other disposes of the criminal trials; and when there is little business set down for a Circuit town it is not unusual for one Judge to go there and hold the Court alone. Owing to prac- tical difficulties,^ — for instance the want of accom- modation for a second Court, and the necessity of sending a second advocate-depute to prose- cute, — the Judges seldom sit simultaneously in separate Courts for the disposal of criminal trials, except at Glasgow. Jurisdiction. — The jurisdiction of the Circuit Courts as Courts of first instance is confined to offences actually or constructively committed within the territory allocated to them ; and to cases in which, although the offence may have been committed beyond those limits, power is given by statute to try them before the Circuit Court as being the forum deprehensionis. The powers of the Circuit Courts as Courts of re- view are hmited and defined by statute ; in particu- 1 This removes doubts whic}i had been felt previously as to the compe- tency of doing so. See Bell's Notes to Hume, ii. p. 144, and the case of Harris Roatnherg. H. C, June 13, 1842, 1 Broun, 367, per Lord Moncreiff, p. 368. THE COURT OF JUSTICIARY. 161 lar, by the Heritable Jurisdictions Act.^ Within the cir- the hmits and subject to a strict observance of the oouktsof procedure prescribed in that Act or in special Acts, Justici- giving a power of appeal to Circuit, the Circuit '*^'^^" Courts possess the same powers as the High Court. ^ Beyond those statutory limits they have no powers as Courts of review. The processes of advocation and suspension are not competent before them ; and they do not possess that super- eminent power of granting redress against abuses in inferior Courts without right regard to times and forms, and of providing a remedy for any extra- ordinary or unforeseen occurrence in criminal matters, which is the distinctive prerogative of the High Court. The cases which may be competently brought under review of the Circuit Courts, and the appropriate procedure, will be considered hereafter. 1 20 Geo. II., cap. 43, sec. .34. ° See opinion of Lord Deas in Rhodes v. Soss, Stirling, Sept. 23, 1870, 1 Couper, 469, 1st point. CHAPTEE III. The High Court of Justiciary as a Court of Review, and the Processes of Eeview com- petent BEFORE IT. The powers of the High Court as a Court of review are derived for the most part from the common law, but to a certain extent they depend on statute. At common law the High Court possesses the power of reviewing, in the widest sense of the word, the proceedings of all the inferior Courts in Scot- land in criminal matters. Its jurisdiction may be and is often limited or excluded by statute; but such limitation or exclusion must be explicit, and is only effectual as to proceedings competently taken under such statutes. The statutory jurisdiction of the High Court in criminal matters is usually accompanied by a limi- tation of its common law powers. The High Court has also a limited statutory jurisdiction as a Court of review in civil matters.^ It cannot review judgments or sentences of the Court of Justiciary, whether pronounced in the High Court or on Circuit; neither can it review the proceedings of the Court of Session in its criminal capacity. ^ The following are the processes of review at present competent before the High Court of 1 Under the Small Debt Act, 1837, 1 Vict,, cap. 41, sec. 31. ' Alison, ii. 25. ADVOCATION. 163 Justiciary. The processes of advocation and sus- pension are common law remedies, tlie rest are statutory. SECTION I. Advocation. Advocation, which is literally the calling up or removal of a cause from an inferior to a superior Court, seems to have been originally not strictly speaking a process of review, but a removal of the cause at its commencement or during its course, on account of some objection to the jurisdiction of the inferior Judge, or on account of partiality or in- capacity on his part, in order to its being proceeded with before the superior Court, or before some other tribunal or Judge. The following reasons of advocation given by Sir George Mackenzie^ show the nature of the process in his time : — 1. Consanguinity of the Judge to one of the parties. 2. One of the members of the Court being a party. 3. The Judge being suspect, as when he gave partial, counsel or repelled a just defence. 4. Incompetency; that is, the case not being proper for the inferior Judge's Court. 5. The intricacy of the case. By degrees advocation came to be used also as a mode of review ; as such it is strictly speaking the appropriate remedy for errors committed in the course and during the dependence of the trial or criminal process, and before final judgment or ' Mackenzie, tit. xvii., sec, 4, pp. 219, 220. 164 THE HIGH COURT AS A COURT OF REVIEW. Advoca- tion, "WHEN COM- PETENT. sentence.^ For a long period, however, advocation has been held competent, " without regard to the " point whether it was at the close or during the " course of the proceedings that the remedy has " been sought ; "^ and indeed in modern times it has been more frequently used and sustained after than before final judgment. It is not on every ground that the Court will interfere with an inferior Judge or review his interlocutors pendente processu, and it is contrary to the spirit of criminal procedure (which requires continuity and dispatch) that they should do so. Accordingly the Court dismissed as incom- petent an advocation presented between the first and second diets of a jury cause, in which it was sought to submit to review an interlocutor of the Sheriff finding the libel relevant.^ Lord Justice-Clerk Hope said (2 Irv. 275), " I do not mean to enter on the ' question wherther such extreme . casps may not ' occur as may induce this Court to stop an inferior ' Judge from proceeding with a cause pending ' before him. But I must say that the notion of ' stopping, in the manner here attempted, a criminal ' trial before the Sheriff, between the interlocutor ' of relevancy and the next diet of the cause, ' appears to me most extraordinary. This Court ' is not to try the cause, but we are asked to pro- ' hibit the Sheriff from going on with it. I cannot ' countenance such a proceeding. " The interval allowed by the new Sheriff Court ' Act seems to render this proceeding still more strange ; particularly in those numerous cases where it is most important that the trial and conviction should be summary. Were the pro- cedure here attempted found competent, we ' should have advocations in the great majority of ' such cases, and great delay of justice would be the 1 Alison, ii. 26, and Liet v. Pirrie, H. C, Dec. 24, 1867, 5 Irv. 559, per Lord Justice-Clerk. » Alison, ii. 26. ^ Jmneaon v. Lothian, H. C, December 3, 1855, 2 Irv. 273. PETENT. ADVOCATION. 1(35 " result. I repeat that I give no opinion as to advoca- " what might be done in any extraordinary case when " which outraged all the principles of the liberty com^ " of the subject." Again the same course was followed in List v. Pirrie} The respondent Pirrie was convicted by the Justices of the Peace in Petty Sessions, and sentenced to six weeks imprisonment. On his appeal- ing to Quarter Sessions, the prosecutor, List, objected to the competency of the appeal. The Justices, however, sustained the competency of the appeal, but adjourned the hearing of the cause in order to give List an opportunity of bringing their inter- locutor under review of the High Court. He accordingly presented a bill of advocation ; but the Court, in absence of the respondent, refused it as incompetent "without prejudice to any questions " as to the competency of the respondent's appeal " to Quarter Sessions!" In both of those cases the Court, while declining to interfere pendente prncessu, reserved power to decide on the objections stated if brought before them after final judgment or sentence. Advocation is the appropriate mode of bringing under review a judgment of absolvitor or dismissal,^ or a judgment which does not award expenses to the advocator^ (where expenses may competently be given), or otherwise fails to give him the decree to which he conceives himself entitled. Unless combined with suspension it is not properly applic- able to sentences or judgments CAmdemnator, this being the province of suspension. Accordingly it is more frequently used by the prosecutor than by the accused. It is sometimes used in combination with sus- pension (under the name of advocation and sus- 1 H, C, Dec. 24, 1867, 5 Irv. 559. ^ EarlofKinnmllv. Tod,H. C, Dec. 1.5, 1859, 3 Irv. 501 ; Caledonian Railway Company v. Fleming, H. C, Feb. 20, 1869, 1 Couper, 193, ^' Prelitice-and NewUgging V. Bathgate, H. C, June 19, 1843, 1 Broiui, 561. 166 THE HIGH COURT AS A COURT OF REVIEW. peo- pension) in bringing warrants, sentences, or judg- A™vocA-^^ ments condemnator- under review ; but in such TioNs. cases advocation seems to be superfluous, the whole case being brought up by bill of suspension. Advocation is not much used now,^ suspension or appeal under the Act of 1875 being adopted in pre- ference. It has therefore been thought better to give merely a short account of the process, as the procedure, which is substantially the same as in suspension's, will be described more fully under the latter head. The older form of the process of Advocation. — Previously to the year 1671, and indeed for some years later,^ the case was introduced into the superior Court, not on the authority of the Justice, but of the Privy Council or the Lords of Session, who, on a bill of advocation being presented to them, ordered intimation enjoining the inferior Judge not to proceed, and granted warrant for raising letters of advocation under the signet of the Privy Council or of the Court of Session, as the case might be. On the letters being raised, the complainer, if his crime were bailable, found caution to appear and insist in the advocation on a certain day, and was thereupon liberated. He at the same time gave the prosecutor a charge to appear at the diet and bring the proceedings with him ; and sometimes a charge to the like effect was given to the Judge and Clerk of the inferior Court. It is unnecessary here to give further particulars of the older process of advocation, as it has been much shortened in modern practice. Soon after the Eevolution (1688) the Court of Session seem to have surrendered to the Court of Justiciary the right of deaUng with bills of advo- cation in criminal causes, and this right the latter have exercised exclusively ever since. 1 It is believed that there has not been an advocation before the High Court of Justiciary since 18B9. 2 Hume (ii. 510, note 2), mentions an advocation proceeding on a bill to the Court of Session in 1675. ADVOCATION. 167 The modern form of the process of Advocation, pro- — Advocation is competent only before the High advo^cI" Court of Justiciary. Except under remit from theiioNs. High Court, the Circuit Courts have no jurisdiction in advocations. The first step in the process is a bill of advoca- tion addressed to " The Lord Justice-General, The " Lord Justice-Clerk, and Lords Commissioners of " the High Court of Justiciary." It should con- tain a succinct statement of the proceedings in the inferior Court, the reasons of advocation, and a prayer for letters of advocation, and transmission of the proceedings in the inferior Court to the Clerk of Justiciary. The form of the bill is more fully considered hereafter under the head of Sus- pension. ^ The bill is lodged with the Clerk of Justiciary at the Justiciary Office in the Register House, Edin- burgh.^ The clerk immediately lays it before one of the Justiciary Judges. A single Judge is com- petent to pass but not to refuse a bill of advocation, a quorum (three) being required for that purpose.^ Although prayed for, letters of advocation are not in use to be expede, the whole merits of the case being debated and finally discussed upon the bill. The Judge's deliverance usually orders ser- vice of the bill, and the deliverance thereon, on the ' See postea, p. 174, et seq. * See table of fees at present in force in the Appendix. ' Baron Hume seems to use the expression " passing the biU " in a double sense. He says first (ii. 512) that " a single Judge is competent to pass the "bill." . . . " The same rule, however, does not apply to the discuss- ' ' ing of the reasons of advocation on the bill, which is an ultimate trial of ' ' the cause, and can only take place before a quorum of the Court. " Here by " passing the bill" he plainly means pronouncing the first interlocutor. Again, in speaking of the final disposal of the reasons of advocation, he says (ii. 512), "After removal of the process by passing the, bill, the condi- ' ' tion of things is thus far altered that the presence of both parties be- " comes equally indispensable as if the prosecution had been in the superior " Court from the beginning. They have to find surety de noro, " &c. Here "passing the bill" is evidently used as equivalent to "disposing of the "reasons of advocation;" and accordingly the expression " pass the bill " is often to be found in the final interlocutor, both in advocations and sus- pensions. In practice a single Judge never disposes finally of the reasons of advocation. 168 THE HIGH COURT AS A COURT OF REVIEW. pko- respondent, and transmission of the proceedings to AdtocI''' the Clerk of Justiciary, and appoints the case to be TioNs. heard on a day which is usually left blank. ^ Some- times, but not often, answers are ordered to be lodged by a certain day. The interlocutors pronounced in the process, and the certificates of service or intimation, are written on the bill itself, which thferefore constitutes the record of the proceedings. If a day for the hearing is not named in the first interlocutor, a day is fixed by the Judge who is to preside at the hearing, on the application of the Clerk of Justiciary. A quorum (of three) is still required for the dis- posal by the High Court of advocations, suspen- sions, and appeals, the provision in sec. 1 of the Justiciary Act of 1868, authorising a single Judge to preside and constitute a quorvun, being confined to criminal trials. Except in one event, the personal presence of the parties is not required during the discussion of the reasons of advocation. By the Act of 1875 it is enacted that if the complainer has been sentenced to a term of imprisonment, and has been liberated on caution, he must appear personally at the hear- ing and disposal of the bill, under penalty of being held to have abandoned it f but in other cases he need not do so. Parties are usually heard orally on the bill and answers, if there are any, and counsel address the Court in the order observed in civil cases ; but the Court sometimes, in cases of difficulty, order minutes of debate. ' Interlocutor.— In the BUI of Advocation, A B !j C D. Edinburgh [Date.l Lord , one of the Lords Commissioners of J usticiary, having conaidered this bill, grants warrant for serving a copy thereof and of this deliverance on the therein named G D, Respondent ; and further grants ' warrant for and ordains transmission of the proceedings complained of to the Clerk of Justiciary, and appoints the case tp be heard on the day of . [Siijnatun of Judge] '^38 and 39 Vict., cap. 62, sec. 10, quoted infra, p, 178, note 2. SUSPENSION, & SUSPENSION & LIBERATION. 169 The Cour,t may pass or refuse the bill, or they disposal may pass" it in part, and refuse it in part; or in-^VvoL^"* stead of passing the bill, they may remit the pro- ™n. cess to the inferior Judge, with instructions how to proceed.^ There have been cases in which the bill has been passed to the effect of trying the cause at the next Circuit Court for the district ;2 but this course is now unknown in practice. The form of the final interlocutor varies. Some- times the Court " pass the bill," and sometimes these words are omitted. Until within the last twenty or thirty years, if the- Court sustained the reasons of advocation, the interlocutor contained the words "Advocate the cause ;" but these words have latterly been omitted. When an advocation has been brought at the beginning or in the course of a process, and the Court decide that further pro- cedure shall take place before themselves, instead of the case being remitted to the inferior Court, the presence of both parties "becomes equally indis- " pensable as if the prosecution had been in the " superior Court from the beginning."^ In dealing with expenses the Court usually dis- pense with taxation, and modify them at once. But if the procedure has been prolonged, a remit is made to the Clerk of Court to tax and report upon the successful party's account of expenses. On the question of expenses see infra, p. 181, e^ seq., and siLpra, pp. 104, 105. SECTION II. Suspension, and Suspension and Libeeation. Suspension is the appropriate mode of bringing ^ See Caledonian Railway Go. v. Fleming, H. C, Feb. 20, 1869, 1 Couper, ^ Hume (ii. 512) mentions two cases, both in the year 1711, in which this coiirse was followed. 'Hume, ii. 511. 170 THE HIGH COURT AS A COUKT OF KEVIEW. SuspEN- under review of the High Court an illegal or WHEN irregular warrant, conviction, or judgment of an COM- inferior Court. • It is competent only before the High Court. The procedure is by bill of suspension. The party who presents the bill is called the complainer or suspender ; and the party upon or to whom service or intimation is a,sked is called the respondent. If the complainer is in prison and prays for libera- tion, the bill is called a bill of suspension and liberation. To render suspension competent, there must be a warrant, judgment, or conviction to suspend actually in existence and professedly complete. Suspension of a threatened or expected warrant or judgment is incompetent. ^ Again, it is not per se a relevant objection to suspension that the warrant complained of has been executed,^ or that the sentence or judgment has been undergone, or implemented in whole or. in part, as by undergoing a sentence of imprisonment,^ or paying a fine or penalty.* Where a gross radical error has been committed, mere acquiescence on the part of the accused has been repeatedly held not to bar suspension;^ but the Court have in several cases' refused suspension where there had been great delay in bringing the process not satisfactorily explained.^ The reason of this peculiarity in criminal sus- pensions is thus stated by Lord Justice-Clerk Hope 1 Jupp V. Dunbar, H. C, Maroli 9, 1863, 4 Irv. 355. ^ Bell V. Black and Morrison, H. C, Jan. 30, 1865, 5 Irv. 57. 3 Alison, ii. 31. In Russell v. Golquhoun, H. C, Nov. 24, 1845, 2 Broun, 572, the whole term of imprisonment was undergone. * Gillies V. Jeffrey, H. C, Dec. 4, 1839, 2 Swin. 454; Christie v. Adam- son, Perth, Oct. 1, 1853, 1 Irv. 293. ^ Russell V. Golquhoun, supra; Duncan v. Ramsay, Aberdeen, April 15, 1853, 1 Irv. 208; Jtlood v, Young, H. C, June 10, 1853, 1 Irv. 236; Jamieson v. Pilmer, H. C, June 2, 1848, J. Shaw, 238 ; French and Others V. Smith, H. C, June 26, 1855, 2 Irv. 198. " In HUnner v. Adamson, H. C, March 12, 1842, 1 Broun, 67, there was. a delay of 12 months ; in Russel v. Sprot and Lanrj, H. C, Jan. 25, 1845, 2 Broun, 385, there was a delay of about 5 months. ' In both oases the bill was refused. SUSPENSION, & SUSPENSION & LIBERATION. I7l in Russell v. Colquhoun-} "In the forms of the s^^pen- " Justiciary Court reduction is unknown, and on when " that very account suspension is the competent ^°^- " remedy for getting rid of and clearing away every " illegal sentence. Is the sentence less illegal be- " cause it has been suffered than it was previously % " The end and object of a process of suspension " and liberation is not merely to procure to the " suspender freedom from imprisonment, but to re- " scind and annul the unlawful sentence of which " he complains." Another reason which may be added is, that criminal proceedings are often sum- mary, and the warrant or sentence may be executed before any steps can be taken to suspend. There are two cases, both connected with trial by jury, which constitute important limitations of the otherwise wide remedy of suspension : — First, A conviction following on the verdict of an assize cannot be reviewed on the merits. In a criminal trial the verdict of a jury cannot be set aside as in a civil case, on the ground of its being contrary to evidence.^ But this does not prevent a conviction and sentence so obtained being re- viewed on other grounds which do not involve re- consideration of the merits. If the libel is irrelevant, ** or if incompetent evidence has been admitted,* oi- competent evidence rejected,^ or if irregularities have been committed by the assize,^ whether such irregularities are due to the fault of the assize, or to want of care on the part of the Judge or officers of Court,'' or if the verdict itself is faulty or in- complete,* the conviction will be set aside. 1 2 Bronn, .579. ^ Alison, ii. 28. ''Anderson v. Blair, H. C, Jan. 14, 18G1, 4 Irv. 5; Ckndinncn v. Rodger, H. C, Dec. 2, 1875, 3 Kettle, Justiciary- Cases, 3. * Burns v. Hart and Young, H. C, Dec. 19, 1856, 2 Irv. 5"1. 5 Hume, ii. 514 ; Alison, ii. 29. * Alison, ii. 31. ' M'Garth and Others v. Bathgate, H. C, May 14 and 15, 1869, 1 Couper, 260. 8 Graham V. Toderich. H. C, May 21, 1864, 4 Irv. 504; Gray v. Afiic- Irnzie, H. C, Feb. 24, 1862, 4 Irv. 166 ; Mibie v. Simpson, Aberdeen, April 28, 1874, 2 Couper, 562. 172 THE HIGH COURT AS A COURT OF REVIEW. suspKN- ■ Secondly, It has also been held that, the Court WMN cannot entertain a suspension brought on the COM- ground that the Judge laid down bad law in his PbTHNT. jjjjg^ygg ^Q ^]jg j^j.y jj^jg ^^g (Jecided in Quarns v. Hart. 1 In the course of the trial before a Sheriff and jury of a person accused of the crime of reset of theft, the Sheriff in his charge told the jury that a previous conviction of the same crime was a strong circumstance ' against the accused, and quoted Hume, i. 114, in support of this statement of the law. The accused's agent took exception to this part of the charge, and asked the Sheriff to nOte the exception, but he refused to do so. A convic- tion having followed, Quarns brought. a suspension on the ground that the Sheriff had laid down bad law. Founding on the Act of Adjournal of 17th March 1827, ch. v. sec. 1,^ he pleaded that the Sheriff was bound to note the exception taken to his charge, and asked the Court to allow him a proof of his averments as to the terms of the charge and as to what took place in the inferior Court. The Court refused the suspension as incompetent in respect that such a proceeding was unpre- cedented ; that the Sheriff was not bound to keep a note of his . charge or of exceptions to it ; and that therefore the Court had no satisfactory means of ascertaining what law he had laid down. Lord Neaves said (p. 258), " I have, never heard of a case " where what is now proposed was done ; and if, at " this time of day, ^a thing is unknown in our " criminal practice, it is pretty sure to be incon- " sistent with law." It would be a misfortune, no doubt, to do any- thing to cause unnecessary delay and expense in our criminal procedure ; but, as Lord Neaves observed in Quarns v. Hart,^ it cannot be disguised ^ Quarns v. Hart, H. C, June 4, 1866, 5 Irv. 251 : and Alison, ii. 679 680. ' ' ■ . ^ See p. 12, supra. » 5 Irv. 257. SUSPENSION, & SUSPENSION & LIBERATION. 173 that great harm may be done by a Judge laying Suspen- down bad law in a charge to the iiirv ; as much, at Zl^' least, as by improperly admitting or rejecting oom- evidence. If the Act of 1875,i which deals only ^'™^'- with summary causes, is supplemented or amended, it will be for consideration whether some machinery may not be provided for recording exceptions to the Judge's charge. There is no reason why the same ■ Judge's law • should be exposed to review in summary cases, and be exempt from it in trials by jury. Besides, review on this ground would involve no interference with the province of the jury, because the law is the Sheriff's domain, and the jury are bound to take it from him. A fresh enactment might be made at the same time, with advantage, in regard to noting objections arising in the course of trials by jury, as the only existing re- gulation on the subject is inapplicable to the present form of process. The Act of Adjournal of 17th March 1827, ch. 5, sec. 1, directs that such objections and the answers shall be " entered on the record,"^ but now that the evidence is not taken down ad longiim, the record is not the proper place for such entries. The Sheriff", who now is bound to take and authenticate notes of the evidence,* should be ■ directed also to note objections stated in the course of the proceedings. It has been thought advisable to postpone con- sideration of the various grounds on which sus- pension is entertained, and of the cases in which it has been held to be excluded by statute or barred by the actings of the party complaining, until some account has been given of the. processes of review in the High Court and Circuit Courts. Procedure in Suspensions — A Bill of Suspension and Liberation. — For the sakq of illustration take the 1 38 and 39 Vict., cap. 62. ^ See supra, pp. 12, 31. 'By 9 Geo. IV., cap. 29, sec. 17, quoted supra, p. 17 ; perhaps by impli- cation this enactment involves noting objections whiob arise in the course of the evidence, but an express direction would be better. 174 THE HIGH COURT AS A COURT OF REVIEW. procbd- common case of a party applying for suspension of ORE IN . . 1 ^ "^ ^^n • ■ 1. J J? suspEN- a conviction and sentence of imprisonment and tor SIGNS. liberation : The process begins witb a bill addressed ttebiu! to "The Lord Justice-General, the Lord Justice- " Clerk, and the Lords Commissioners of Justiciary. " There is no obligatory or statutory form for the bill ; sometimes it is drawn in the form of a petition, which is not divided into articles and pleas, and concludes with a prayer. Of late years the form most commonly adopted has been modelled on that prescribed for civil processes of suspension. It con- sists of an abbreviated petition and prayer, with an articulate statement of facts and pleas in law annexed. The petition states shortly that the sus- pender is under the necessity of applying for suspension of a pretended conviction, giving the date and place of the conviction, the process in which and the Judge or Judges by whom it was pronounced, the purport of the conviction, and the sentence pronounced ; that in pursuance of the said sentence the suspender has been imprisoned, giving the name of the prison ; that the said conviction and sentence are illegal and unwarrantable, as will appear from the annexed statement of facts and pleas in law, and should be suspended, and that liberation should be granted as prayed for ; that the suspender is desirous of obtaining interim liberation ; and that he is prepared if necessary to find. caution in common. form. Then follows the prayer, which is much the same, mutatis mutandis, as in advocation. It prays for service on the respondent, who is usually the prosecutor or complainer in the inferior Court, and sometimes for answers ; for transmission of the proceedings to the Clerk of Justiciary; that the conviction complained of should be suspended sim- pliciter, and the suspender set at liberty ; that the suspender be found entitled to expenses ; and that ■ in the meantime interim liberation be granted, with SUSPENSION, & SUSPENSION & LIBERATION. 175 or without caution ; or to do otherwise as shall Pkooed- seem just. l^^^'^^_ As the bill is often the only paper in the hands s^o^^^- of the Judges who decide the case, the statement J-^^^y-^ of facts should be complete in every essential par- ticular. If, for instance, there is an objection to the relevancy of the complaint, the ipsissim.a verba of the complaint, or at least of the passage which con- tains the alleged defect, should be given. If the suspension turns on the construction of an Act of Parliament, the necessary sections should be quoted. If the terms of the conviction are impugned, it should be quoted at length. In other respects the statement should be concise and devoid of argu- ment ; but the facts of the case, and the various steps of procedure, with their dates, should be cor- rectly set forth. Special care should be taken in stating the reasons of suspension and pleas in law. The Court do not usually tie the suspender down very strictly to the reasons stated, but they some- times do so, and do not allow a ground of suspen- sion not contained in . the bill to be stated and argued at the bar ;^ the more so if it is founded on facts not previously condescended on. It is scarcely necessary to observe, however, that it is bad policy as well as bad pleading to load the bill with frivolous or untenable pleas. Not to mention the prejudicial effect of such pleading on the minds of the Judges, expenses may be refused or modified on this ground.^ Lastly, all soUd and maintainable objections should be stated, even although they may not have been urged in the inferior Court. It is only in circumstances amounting to deliberate acquiescence on the part of the suspender that the Court refuse to listen to substantial objections because they are stated for the first time before them. This is a sketch of a bill of suspension in an ' Maclean v. Macfarlane, H. C, March 9, 1863, 4 Irv. 351. 2 Ferguson v. TUw, H. C, June 30, 1862, 4 Irv. 198. the bill. 176 THE HIGH COURT AS A COURT OF REVIEW. Peoced- ordinary case ; but each case depends on its own SuspBN- circumstances, and the model given must be sioNs. expanded or curtailed to suit the facts. Form of The Mil uccd not be signed by counsel; it is usually signed by the appellant's agent. It is then lodged with the Clerk of Justiciary at the Justiciary Office.^ The Clerk immediately lays it before one of the Justiciary Judges, who, unless there is anything palpably untenable on the face of the bill, pronounces an interlocutor granting warrant for serving a copy of the bill, and his deliverance thereon, on the respondent, and appointing the case to be heard on a day which is usually left blank.^ This and all the other interlocutors in the case, together with the certificates of service or intimation, are written on the bill, which thus forms the record. If the suspender is in prison under the sentence complained of, and has applied for interim liberation on caution, the Judge, if he thinks fit, grants war- rant for interim liberation on caution being found, in one or other of the forms given in the note,^ ^ The hours of the Justiciary Office are 10 a.m. to 3 p.m. (on Saturdays from 10 A.M to 1 P.M.) at the Old Register Office, Edinburgh, except during trials before the High Court, when the officials wiU be found in the Parlia- ment House. There are no holidays, and the clerk can be called upon at any time to discharge his duties, Sundays not excepted. No bill of suspen- sion or advocation, and no appeal, is received until the appropriate fee is paid. See table of fees at present in force in the Appendix. ■ ° Interlocutoe. — Lord N , one of the Lords Commissioners of Justiciary, having considered the foregoing biU, grants warrant for serving a copy thereof and of this deliverance on the therein named [design the re- spondent], and for transmission of the proceedings to the Clerk of Justiciary, and appoints the case to be heard on the day of .* [Signed] C N. *1. [If the suspender is in prison for non-payment of a fine, add] Meantime grants warrant for the liberation of the suspender [or complainer] on his finding caution in the [describe the boohs] Court Books of [jjive the name of the Court], that he shall pay the fine and expenses awarded against him in the conviction complained of, in the event of this bill being ultimately refused. *2. [If the suspender has been sentenced to imprisonment vntJiout the alternative of a fine, add] Meantime grants warrant for the liberation of the suspender [or- complainer] on his finding caution in the [describe tlie boohs] Court Books of [give the name of the Court], that he shall return to prison and there undergo the remainder of the sentence complained of, in the event of this bill being refused ; and that under penalty of £ sterling. SUSPENSION, & SUSPENSION & LIBERATION, 1 77 according as the suspender has been imprisoned, pkoced- with or without the alternative of a fine. ™'' ^^ The suspender is not entitled to interim liberation sions. as a matter of right, as there is a conviction stand- interim ing against him ;^ but it is usually granted on ''^''^™*""' caution, unless there is anything on the face of the bill or otherwise brought to the Judge's knowledge to lead him to refuse it ; or unless the case is to be immediately heard and disposed of. A copy of the usual bond of caution is printed in the Appen- dix. The reputed sufficiency of the cautioner must be certified by a Justice of the Peace in writing on the bond. Procedure at the hearing. — A day for the hearing is fixed, on the application of the parties, or either of them, by signed memorandum. ^ If no appear- ance is made for the suspender the suspension is refused, with expenses. If the suspender has obtained interim liberation, he must appear personally at the hearing and disposal of the case, under penalty of being held to have abandoned his suspension ; and if he is absent the Court may issue a warrant for his apprehension and imprisonment during the period of his sentence which remains unexpired.^ This was enacted in order to put some check upon convicted persons, and prevent them from absconding, as they some- times did, on obtaining liberation. Previously it was not the practice of the Court of Justiciary to ' Alison, ii. 31. ° See infra, p. 188. ' 38 and 39 Vict., c. 62, sec. 10. — "Where a person sentenced to a term of " imprisonment by an inferior Judge shall bring an appeal, suspension, or " other process of review, of the sentence under which he is imprisoned, ' ' and thereupon have interim liberation granted to him, such person shall " appear personally in the Court before which such appeal, suspension, or " otlier process as aforesaid shall be brought on the day or days fixed for " the hearing and disposal of the same ; failing which, he shall be held to " have abandoned the same, and the said Court shall thereon, and shall " also in all other cases, in disposing of any appeal, suspension, or other " process as aforesaid, have power to grant warrants to apprehend and " imprison such person for any term, to run from the date of his appre- " hension, not longer than the period which at the date of his liberation " remained unexpired of the term of imprisonment specified in the sentence " brought under review." M 178 THE HIGH COUKT AS A COURT OF REVIEW. Pboced- grant warrant for the apprehension and reimprison- SuspEN- nient of the complainer. The respondent was left SIGNS. to proceed in the inferior Court on the original iHsposai warrant.^ case.^ If no appearance is made for the respondent, the suspender must still satisfy the Court that the con- viction complained of should be set aside. The case is heard and disposed of by a quorum (three or more) of the Court.^ The Lord Justice- General presides, and in his absence the Lord Justice-Clerk ; and in the absence of both, the senior Judge present. The pleadings are usually oral, and the same order is followed in addressing the Court as in civil cases, notwithstanding that in almost all criminal trials the accused has the last word in all discussions.^ Sometimes in cases of diffi- culty the Court order informations ; and sometimes after hearing parties they order the respondent to lodge answers, if this has not already been done.* Disposal of the case. — The Court may refuse the suspension, or pass the bill and suspend the pro- ceedings complained of simpliciter.. They may also amend, vary, or alter the sentence in any way they think fit ■,^ they may suspend it in part and sustain it in part, but this can only be done where the good and bad portions are distinctly separable. In Snaddon v. Spence,^ the Justices in Petty Sessions convicted the suspender, Snaddon, of an offence imder the Day Trespass Act, 3 Will. IV., cap. 68. On appeal, the Justices in Quarter Sessions affirmed this conviction, and found Snaddoji liable in the expenses of the appeal, and in, default of payment adjudged him to be imprisoned for 3 weeks. Snad- don brought a suspension, one ground of suspension 1 Lawson v. Mackenzie., H. C, Dec. 3, 1855, 2 Irv. 272. ° Supra, pp. 155, 156. 3 "That in all criminal persuits tlie defender or his advocats be always " the last speaker, except in cases of treason and rebellion against the " King."— 1672, cap. 16, regulation 10. ^ Walker v. Lang, 5 Irv. 510. ' Alison, ii. 32. " Snaddon v. Spence, H. C, June 30, 18G2, 4 Irv. 200, last point. SUSPENSION, & SUSPENSION & LIBERATION. 179 being that the Justices had no power under the Proobd- Act to order their decree for expenses to be svsrm- enforced by imprisonment. The High Court of^oNs. Justiciary sustained this ground of suspension, ^'^S.^*^ but held that that incompetency did not vitiate case. the whole judgment and conviction ; they held that the affirmance of the original sentence was one thing, and the incompetent addition another, and separable from it, and accordingly suspended that part of the judgment which autho- rised imprisonment in default of payment, and quoad ultra repelled the reasons of suspension.^ On the other hand, in Boss v. Stirling,^ the Court held that the good and bad parts of the sentence were not separable. In a prosecution under 25 and 26 Vict., cap. 35 (The PubUc Houses (Scotland) Amendment Act, 1862), which does not authorise an award of expenses, the Justices convicted the accused, and imposed a penalty of five shillings, with a sum of one pound fifteen shillings of ex- penses, and, in default of immediate payment of penalty and expenses, adjudged him to be im- prisoned for ten days. The Court suspended this sentence simpliciter,^ holduig that the faulty part of the conviction was not separable, as they could not tell how much of the imprisonment was awarded for non-payment of the penalty, and how much for non-payment of the ex- penses. When relevant objections to the conviction are made by the suspender which are not admitted by 1 Inteelocutoh, 4 Irv. 203.—" Pass the biU so far as relates to that " part of the judgment of the Justices in the Court of Quarter Sessions, by " which the Justices adjudge the suspender to be imprisoned for the period " of three weeks in default of the sum of £2, 9s. of expenses thereby found " due not being paid within four days, and suspend that part of the judg- " meut accordingly : Quoad ultra repel the other reasons of suspension : ' ' Find no expenses due to either party. " "Sossv. Stirling, H. C, Oct. 22, 1869, 1 Couper, SS6. ^ Interlocutor, p. 347. — " Having considered this bill, and heard " counsel hinc inde, Pass the bill, suspend the sentence complained of sim- ' ' pliciier, and ordain the sum of fine and expenses to be repaid to the sus- " pender, and decern : Find the respondent liable in expenses, which modify " to six guineas, for which, with one guinea as the dues of extract, decern." 180 THE HIGH COURT AS A COURT OF REVIEW. proced- the respondent, and do not appear on the face of saw-EN- the proceedings, the Court sometimes, before decid- sioNs. ing the case, remit to some competent person, the Disposal Sheriff or Sheriff-substitute of the county (provided of the , , .11 \ ./ v-i. . ease. they havc not tried the case), or some special commissioner, to inquire into the matters averred, and to report. Thus, where the suspender averred that he had been peremptorily refused a continua- tion of the diet, which he had craved in order to prepare for his defence, and that the doors of the Pohce Court had been closed in order to exclude his friends and witnesses, he was allowed a proof of his averments, and the respondent a conjunct probation.^ Again, where it was averred, inter alia, that two exculpatory witnesses who were in attend- ance were refused admittance by the officer of Court, the Court before answer remitted to one of the Sheriff-substitutes of Lanarkshire "to investi- " gate into these averments, and to report either " the evidence taken by him, or the result thereof, " as he shall judge to be most fitting."^ This course, however, will not be followed unless the averments are relevant and specific, and unless the matters complained of really amount to oppres- sion, or to a miscarriage or denial of justice.* If the objection is one which should have been taken in the inferior Court, but, through the suspender's fault, was not stated and recorded, an inquii'y will not be allowed.* When the Court recal or vary the conviction in whole or in part, they may also remit to the' inferior Judge, with instructions to dispose of the case ; but this is not so frequently done in ' Orr V. M'Callv.m, H. C, June 25, 1855, 2 Irv. 1'83. See interlocutor, p. 188. See also Mahon and Macmahon v. Morto-n, H. C, Feb. 6. 1856, 2 Irv. 383. " Wright v. Dewar, H. C, Nov. 27, 1873, and March 9, 1874, 2 Couper, 504. See interlocutor, p. 514. See also Blytlis v. M'JBam, H. C., Feb. 20, 1852, J. Shaw, 554 ; and M'AUister v. Cowan, May 24 and July 16, 1869, 1 Couper, 302. 3 M'Lean v. Macfarlam, H. C, March 9, 1863, 4 Irv. 351. * North British Itaihvay Company v. Ramie, Stirling, April 20, 1874, 2 Oouper, 541. SUSPENSION, & SUSPENSION & LIBERATION. 181 suspensions as in advocations and appeals ; as, in pkoced- suspensions, the whole case has usually beensuspEN. exhausted, rightly or wrongly, in the inferior stons. Court, and the supreme Court either refuse or pass ^/^U^^ the bill simpliciter, or themselves make such modi- case. fication or alteration on the judgment as may be necessary. They do not often give the prosecutor an opportunity of proceeding de novo in the inferior Court ; but such a course is not incompetent, and if the successful objection is considered technical, such a remit is sometimes made.^ In Patterson v. Malcolm'^ the Justices in Quarter Sessions having dismissed an appeal against a con- viction under 17 Geo. III., cap. 56, on the ground that the appellant Patterson had not complied with certain provisions of that statute, the High Court, on a suspension being brought by Patterson, re- called the sentence dismissing the appeal, and remitted to the next General or General Quarter Sessions to proceed with the matter of the appeal. In that case, however, the procedure in the inferior Court was not exhausted, the appeal to Quarter Sessions not having been disposed of Sometimes the Court state the grounds of their judgment in their interlocutor. They do so especi- ally when they quash or alter a conviction or judg- ment ; and the more readily if numerous objections are stated, some of which only are sustained. If the suspension is refused, no reasons are usually given ; they simply. " refuse the bill." If the suspender is in prison, the Court, if they quash the conviction, order his immediate libera- tion. They also ordain any fine, penalty, or ex- penses which he may have paid under the judgment complained of to be repaid to him.'* 1 See Baird v. Rose, Ayr, Sept. 27, 1865, 5 Irv. 200. 2 Patterson v. Malcolm, H. (J., June 8, 1867, 5 Irv. 415. See also JJac- kersk V. M'Douqall, H. C, Nov. 27, and Dec. 27, 1874, 3 Couper, 54. ^Bossr. Stirling. H. C, Oct. 22, 1869, 1 Conper, 3,36; interlocutor, p. 347 ; Rhodes v. Ross, Stirling, Sept. 23, 1870, I Couper, 469 ; interlocutor, ii. 476. 182 THE HIGH COURT AS A COURT OF REVIEW. pboced- Where the suspender has been liberated on SusPEN- caution, the Court usually make no order in their SIGNS. interlocutor as to delivering up the bond of caution ; Expenses, ^n order is not required. Expenses. — In the absence of express statutory regulation, the Court may award, modify, or refuse expenses ; and in doing so they proceed substanti- ally on the same rules as in civil cases, the amount of success, and the mode in which the case has been conducted, being the principal elements taken into consideration. Sometimes the successful party is awarded ex- penses both in the inferior Court and in the High Court. In Wilson v. Morrison,'^ the respondent was found liable in expenses in both Courts, although the case was decided upon an objection which originated with the Bench, and was not pleaded by the suspender. In Christie v. Adamson,^ a conviction obtained under 13 Geo. III., cap. 54 (one of the Game Laws), was set aside on the grounds that the Justices had failed, — 1st, To give a written deliver- ance disposing of an objection to the relevancy of the complaint ; and 2dly, To take down the evi- dence in writing. The respondent, who was Procurator-Fiscal in the Justice of Peace Court, was found liable in expenses in both Courts, although it was urged on his behalf that the statute did not authorise an award of expenses against him. In a trial by Sheriff and jury, the jury returned a verdict of guilty, as libelled, " of writing letters " of a threatening tendency." The prosecutor (the Procurator-Fiscal) expressed to the Sheriff doubts whether sentence could follow on the verdict, the jury not having found the accused guilty of sending the letters, and proposed that the jury should be reinclosed in order that a 1 WiUon V. Morrison, H. C, June 15, 1844, 2 Broun, 231. » 1 Irv. 293. SUSPENSION, & SUSPENSION & LIBERATION. 183 proper verdict should be returned. The Sheriff, pboced- however, overruled this suggestion, and the Pro- s0spfI- curator-Fiscal moved for sentence, which was pro- swns. nounced. The Court suspended the sentence sivi- Expenses. pliciter, the Fiscal not defending it ; but, in respect that it was not disputed that the Fiscal moved for sentence in deference to the Sheriff's opinion, foundhim liable onlyin expenses incurred in the High Court.i The Lord Justice-Clerk (Inglis) said,^ " As " the Court were not disposed to lay it down that " it would have been proper for the respondent to " have acted otherwise in opposition to the opinion " of the local Judge, so they did not think it would " be just to subject the Procurator-Fiscal in the " expenses of the inferior Court. With regard, " however, to the expenses in this Court, they must " fall on the Procurator-Fiscal, as the suspension " must be sustained." In general, however, it is no answer to a demand for expenses that the fault or irregularity which leads to suspension lay with the Judge or the jury, and not with the prosecutor. While it is thus competent to award the expenses incurred in both Courts, the Court of late years have been in the practice in most cases of modifying a sum in name of expenses, without saying whether they are the expenses in both Courts or not. While this mode of awarding expenses has much to com- mend it, it has this disadvantage, that, the account of expenses not being before the Court, the sums awarded are sometimes inadequate to reimburse the successful party for the necessary outlay. From two of the cases just quoted^ it will be observed that in the matter of expenses the Procurator-Fiscal does not (apart from the provisions of section 22 of the Summary Procedure Act, to be presently noted) stand in a more favourable position ' Grayy. Machmzie, H. C, Feb. 24, 1862, 4 Irv. 16f). = 4 Irv. 169. ' Christie v. Adamson, and Gray t. MackeirJe, supra. 184 THE HIGH COURT AS A COURT OF REVIEW. proced- than a private prosecutor^ whether the prosecution 8USPEN. is at common law or under statute, provided the Slop's. statute does not expressly or by implication forbid Expenses. ^^ award of expenses against him. It is true that in prosecutions at common law it is not usual in the event of conviction to ask or give expenses against the accused in the inferior Court, and that on the other hand it is not usual in the event of acquittal to award him expenses. But this practice does not protect the Fiscal in the event of the conviction being quashed.^ The in- clination of the Court is not to award against him the expenses incurred in the inferior Court, unless his proceedings have been slovenly, irregular, or oppressive ; but the expenses of the suspension are given almost invariably, even where the Fiscal does not defend the conviction. ^ The 22d section of the Summary Procedure Act^ affords a protection in some cases to prosecutors in the matter of expenses. The fair meaning of that section seems to be this : In prosecutions for statutory penalties, brought by complaint under the Summary Procedure Act, expenses shall not be awarded to or against any public prosecutor, or party prosecuting under the authority of the special statute, unless such an award of expenses is expressly authorised by the special statute, or unless, on a fair reading of the statute, it appears to be intended that expenses should be awarded. In order to entitle the prosecutor to the benefit of this clause, it is necessary — 1st, that the complaint be brought under the Summary Procedure Act ; 2dly, that it be a complaint for a statutory penalty; 3dly, that the statute founded on does not authorise {i.e. direct, expressly or by implication), an award of expenses.* The protection does not apply to complaints at ^ See notes to section 22 of tlie Summary Procedm-e Act, p. 104, supra. ^ Gray v. Maclcemiie, sufira. ' See the section quoted, supra, 104. * Per Lord Justice-General Inglis in Ross v. Stirling, 1 Couper, 343, quoted p. 105, sv2^ra. SUSPENSION, & SUSPENSION & LIBERATION. 185 common law, or to any complaints which are not Proceb- brought under the Act of 1864 ; the only cases to suspek- which it seems to apply are statutory prosecutions sions. brought under that Act, where the special statute Expenses, is altogether silent as to expenses. Lastly, it applies only to expenses in the Court below, and not to expenses in the superior Court.' Most penal statutes contain some directions on the subject -of expenses, and those directions, if explicit, must be followed by either awarding or refusing expenses. Where a statute authorised an award of expenses in the inferior Court to the pro- - secutor on conviction, but was silent as to giving the respondent his expenses if acquitted, the Court held that by necessary implication the latter was entitled to expenses in that event. ^ When the statute is altogether silent on the subject, opinions have been expressed by some Judges, though with hesitation, that it is com- petent, — unless the case comes under the provisions of the Summary Procedure Act, — to award ex- penses in virtue of the inherent power which every Court possesses to do so, except in so far as that power is curtailed by statute.^ In a trial case attended with difficulty, where suspension was refused, expenses were awarded to neither party.* Where the suspender had caused unnecessary expense by stating and insisting in untenable pleas, he was, although successful, allowed only the ex- pense of printing the bill of suspension and an additional plea in law. ^ It is not usually considered a reason for refusing expenses, or even for making a modification, — i.e. a deduction from the expenses awarded, — that the 1 Nimmo v. Clark and Wilson, 10 Maoph. 482, sufra, p. 104. ' Waller y. Bathqate, H. C, ,)une4, 1873, 2 Couper, 460. ^ See opinions of Lords Kinlooli and Cowan in Ledrierwood v. M'Kcnna Deo. 18, 18G8, 7 Macph. 261. ■■ Gray v. jl/acl:a>::ie, su),ra. • Hallklay v. Batligale, II. (J,, June 1, 1867, 5 Iiv. 382. 186 THE HIGH COURT AS A COURT OF REVIEW. Proced- objection sustained was not taken in the inferior s™- Court ; but this is a matter entirely in the discre- sicNs tion of the Court, and depends in a great measure Expenses. ^^ ^^^ nature of the objection and the whole cir- cumstances of the case. As already mentioned, the Court usually them- selves modify or fix a lump sum for expenses, and also give decree for £1, Is. for the dues of extract.^ Where the procedure has been more prolonged than usual, or where expenses in both Courts are given, decree is given for the expenses as they ' shall be taxed by the Clerk of Court. Suspension of illegal or irregular Warrants. — Suspension is the proper mode of bringing under review an illegal or irregular warrant granted by an inferior Judge ;2 but a distinction must be made. Some warrants pronounced in the course of proceedings before the inferior Court, — such as the warrant for the apprehension of the accused, or the warrant committing him to prison " until liber- " ated in course of law,"^ or during an adjourn- ment of the Court, — cannot in ordinary circum- stances be reviewed until final judgment, or until the cause is abandoned ; and this for the same reasons of expediency which render advocation of an interlocutor of relevancy, or of an interlocutor sustaining the competency of an appeal to Quarter Sessions, incompetent pendente processu} But it is competent in certain cases to bring a suspension of ^ The extract is prepared by the Clerk of Justiciary. See example in Appendix. ^ On the requisites of search warraDts see p. 132, supra. ' In Bannatyne v. M'LulUch arid Fraser, H. C, June 18, I860, 3 Irv. 605, the Court, in rather peculiar circumstances, suspended a warrant com- mitting the suspenders to prison until liberated in due course of law, but found no expenses due. The complaint under which that warrant was pro- nounced was not proceeded with. The accused were convicted of the same offence under a new complaint, and the sentence then pronounced was set aside by the Court of Justiciary. The suspenders then brought a suspension of the former complaint and warrant. The Court thought that suspension was unnecessary, but suspended the warrant complained of, the Lord Justice-General saying, "I see no harm in suspending it. The two sets of " proceedings, apparently independent, might create a difficulty." ' Su2)ra, pp. 165, 166. RANTP. SUSPENSION, & SUSPENSION & LIBERATION. 187 an incidental warrant without awaiting the termina- Suspen- tion of the 'main process, because such warrants, illeoal though connected with the main process, are to ^ae- certain effects independent of it. For instance, "* illegal or irregular search warrants may be at once reviewed by suspension. Such warrants are purely incidental ; they may be granted, although no one is under charge, in the course of a precognition ; again, where some one is under charge, the houses of others than the accused may be searched. Even in a question with the accused, there seems to be no reason why such a warrant should not be at once suspended, without awaiting the conclusion of the cause. The ordinary procedure under the com- plaint may be legal and regular, while the search warrant is illegal and oppressive ; and it does not follow, because the search warrant is suspended, that the prosecution should be quashed or inter- fered with. In Bell v. Black and Morrison,^ and Webster v. Bethune,^ the suspenders were not under charge when the search warrants complained of were granted ; but there is no good reason why, because a man is under charge, he should not be entitled to object to his repositories being searched in an illegal manner — perhaps for articles not con- nected with the charge against him. Suspension at the instance of persons not under charge. — As persons other than parties accused or under charge may be affected by illegal warrants or judgments, suspension is competent at their instance. The two cases just mentioned were at the instance of persons not under charge. Again, a warrant com- mitting a witness to prison for prevarication may be reviewed by suspension ;^ but such a committal being the independent act of the Judge, there may be a question whether he, and not the prosecutor, is not the proper respondent in the suspension.* 1 5 Irv. 57 ; supra, p. 133. « 2 Irv. 596 ; supra, p. 133. ' Nicholson v. Linton, H. C, Nov. 18, 1861, 4 Irv. 115. ' lOid. 188 THE HIGH COUBT AS A COURT OF REVIEW. SuspEN- In Middlemiss v. d'Ereshy} a complaint charging ILLEGAL an offence under 2 and 3 Will. IV., cap. 68, sec. 1, WAE- was served on Alexander M., in which he was designed James M. ; Alexander having, when de- tected stealing hares, given the name James, which was the name of a younger brother. Sentence hav- ing been pronounced against Alexander under the name of James M., the Court, in a suspension at the instance of James and his father, suspended simpliciter, and awarded expenses against the re- spondents. Present Procedure in enrolling a Case for Hearing. — It has already been explained that in the first interlocutor ordering intimation, &c., the day for the hearing is left blank. Until recently the prac- tice as to putting the case out for hearing was that the Justiciary-Clerk waited till a few criminal sus- pensions or advocations accumulated, and then applied to the Lord Justice-General or Lord Jus- tice-Clerk to fix a day for hearing them. On a day being fixed, the Clerk put the cases to the Roll and intimated the diet by letter to the agents for the parties. Thus the case was put out for hearing without either party moving in the matter. The present practice is not to put the case to the Roll for hearing except on the application of both or either of the parties by signed memorandum (bear- ing a £2, 2s. or £1, Is. stamp) requesting that the case shall be enrolled for hearing.^ The memoran- 1 H. C, March 16, 1852, J. S. 557. = MEMORANDUM IN THE BILL OF SUSPENSION, in which A B is Suspender, AND C D is Respondent. That the said A B is desirous that the Cfeurt should direct the said case to be enrolled for hearing for such day as may be convenient. (Signed) A B, Suspender. Or E F, Agent for A B. Note. — The fee is £2, 2s. if the memorandum is joint, and £1, Is. if it is presented by one of the parties only. Ol'T ACASa FOR HEAK- SUSPENSION, & SUSPENSION & LIBERATION. 189 dum, according to the present practice, must be Puttinc! signed by the party, or by his agent or counsel. On this memorandum being laid before the Judge, or inq. upon the Clerk informing him that it has been lodged, a day is fixed for the hearing, and the case is enrolled and the diet intimated as before. If neither party moves, the case is not put out. This memorandum is now used in all processes of review before the High Court, including appeals under the Act of 1875. If no appearance is made for the suspender at the hearing, the bill is refused, with expenses ; and if the appellant has obtained interim liberation, warrant is issued for his apprehension and re-im- prisonment, as already explained, supra, p. 177. If no appearance is made for the respondent the suspender must satisfy the Court that the decision complained of is erroneous. ^ If he fails to do so suspension will be refused. SECTION III. Appeal on a Case stated under the Summary Pro- secutions Appeals (Scotland) Act, 38 & 39 Vict., CAP. 62. This mode of review is by appeal upon a case stated by the inferior Judge. The statute is adapted from the Enghsh and Irish Statute, 20 & 21 Vict., cap. 43, which, it will be remembered, was passed to supplement the English Summary Pro- cedure Act, 11 & 12 Vict., cap. 43.^ It has been thought best to follow the course adopted in regard to the Summary Procedure Act, and give the Act in full, with explanatory notes. 1 See List v. Pirrk, H. C, Dec. 2.3, 1867, .5 Irv. 559, in which an advoca- tion was refused as incompetent iu the absence of the respondent. ^ Supra, p. 51. 190 SUMMARY PROSECUTIONS APPEALS ACT, 1875. THE SUMMARY PROSECUTIONS APPEALS (SCOTLAND) ACT, 1875. 38 & 39 VICTORIA, CAP. 62. An Act to alter and ammd the Law relating to Appeals in Summary Prosecutions before Inferior Judges in Scotlaud. — [ll^A August 1875.] Be it enacted by the Queen's most Excellent Ma- jesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Short 1, This Act may be cited for all purposes as " The Summary Prosecutions Appeals (Scotland) Act, 1875." interpre- 2. lu this Act the foUowing terms hate the terms. °* meanings herein assigned to them ; that is to say, " Inferior Judge " means and includes any Sheriff or Sheriff-substitute, Justice or Justices of the Peace, or Magistrate or Magistrates : " Magistrate " means a Magistrate of any royal burgh, or of any burgh returning or contribut- ing to return a member to Parhament, or of any burgh of regality or barony, and includes any Commissioner of Police authorised to act as a Judge under any general or local Police Act: "Cause" means and includes every proceeding which may be brought under the Summary Pro- cedure Act, 1864^, and every other summary proceeding for the prosecution of an offence or recovery of a penalty competent to be taken before an inferior Judge i^ " Clerk of Court " means the Clerk of the Court of an inferior Judge, and includes any Depute- INTEEPRETATION OF TERMS. 191 Clerk of Court or other person authorised to Section 2. act, and acting for the time as such Clerk of i^i^^erpre- court: t:Jj^r' " The Eespondent " means and includes any party to a cause other than the party appealing under this Act against the determination thereof by an inferior Judge. 1 See section 3 of tlie Summary Procedure Act and notes, supra, p. 67, e,t seq. As to cases excepted from tlie provisions of that Act, see section 25, p. 106, supra. 2 The effect of this part of the definition seems to be to render ap- peal competent, without restriction, in all summary proceedings for the prosecution of offences or recovery of penalties competent to be taken in any of the Coiirts here mentioned, whether under special statute or at common law, and whether of a civil or a criminal nature ; and this notwithstanding that review may be excluded or restricted, or some special mode of review provided by the special statute. — See section 3, infra. But if this mode of review is adopted, the appellant is held to have abandoned all right otherwise competent to him of appealing to any superior or other Court. — See section 9, infra. 3. On an inferior Judge hearing and determining inferior any cause,^ either party to the cause may, if dis- appifck-"" satisfied with the Judge's determination as erron- tion of eous in point of law,^ appeal thereagainst, notwith- ^eTedfto standing any provision contained in the Act under state a' which such cause shall have been brought excluding opinion' of appeals against or review in any manner of way of superior any determination, judgment, or conviction or com- ^°"'^ plaint 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 192 SUMMARY PROSECUTIONS APPEALS ACT, 1864. Section 3. Provisions as to applying for a 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 the Clerk of Court such sum as may be fixed by the inferior Judge to meet the penalty awarded, if any, land the said costs of the superior Court : ^ (2.) Pay the Clerk of Court his fees for preparing the case : These fees shall, till the same be otherwise fixed by Act of Sederunt, which the Court of Session is hereby empowered to pass, and from time to time thereafter to vary, be those set forth in Schedule D annexed to this Act : 2. The Clerk of Court shall, within five days after caution or consignation, and payment being found or made as aforesaid, prepare the case, and submit the same in draft to the parties or their agents : o. Should the parties or their agents fail to agree as to the terms of the case, the inferior Judge shall settle the same : ^ 4. The case shall be as nearly as may be in the form set forth in Schedule A annexed to this Act, and shall bear to be stated by the inferior Judge and shall be signed by the inferior Judge : 5. The Appellant shall within three days after receiving the case ^° give notice of appeal in writing, together with a copy of the case, to the Kespondent," and shall within the same time transmit the case by post to, or cause it be lodged with one of the Clerks of the superior Court,'^ together with a certificate under the hand of himself or of his law- agent, of intimation, as herein required, hav- ing been made to the Respondent.'^ PROCEDURE ON CASE BEING LODGED. 193 6. The Clerk of the superior Court shall on re- Section 3. ceiving the case forthwith lay the same before Procedure a Judge of the superior Court/* and such teing^^ Judge may thereupon, if the Appellant is in lodged, custody, grant interim liberation, upon such conditions as are usual in cases of suspension and liberation, and may also grant a sist of execution upon or without caution, or make such other interim order as the justice of the case may require : ^^ 7. The Clerk of the superior Court shall as soon as may be after receiving the case require the Clerk of Court to transmit the process to him, together with the notes of evidence, if any, taken in the cause, where the pro- cedure therein is under an Act requiring such notes to be taken and preserved,'^ and the Clerk of Court shall transmit the process accordingly : 8. Any question of law arising upon the facts stated in the case shall thereafter be heard and determined by the superior Court ^'' to which the case is transmitted at any sitting for which the case shall be enrolled by the direction of the said Court,^* upon the case, without any note of appeal or written plead- ings being required : 9. The superior Court shall have power to affirm, reverse, or amend the determination in re- spect of which the case has been stated, or to remit the matter to the inferior Judge with the opinion of the Court thereon ; or to make such other order in relation to the matter and the costs of the appeal as they shall see fit;^^ or to cause the case to be sent back to the inferior Judge to be amended in such manner as they shall ^ direct, and thereafter, on the case being amended and returned, to deliver judgment on the case as amended : N 194 SUMMARY PROSECUTIONS APPEALS ACT, 1875. SECTioifS. 10. All orders made by a superior Court in de- termining a case under this Act shall be final and conclusive : 11. No inferior Judge who shall state and sign a case under this Act shall be liable in any costs in respect or by reason of an appeal against his determination. ^ The cause must be heard and determined ; appeal is not pom- petent before final judgment. What are ^ I* is not very easy to define " errors in point of law." One "errors in thing is certain, viz. that the case is conclusive as to the facts point of found proved by the inferior Judge. The superior Court must *^ ■ hold those facts as proved ; the evidence is not before them, and they cannot review it. But as to the conclusion to be drawn from the several facts as thus established greater difficulty arises. This enactment is specially intended to apply to a class of cases in which, previously, review was virtually excluded. Under the provisions of the Summary Procedure Act and many special statutes, no note need be preserved of the evidence, or of ob- jections to the admission or rejection of evidence. In such cases, if it could be shewn on the face of the complaint or record that the Judge had erred in point of law, his judgment might be reviewed by suspension or some other existing mode of review ; and it was not necessary that the inferior Judge should state a case shewing the grounds of his determination, as the whole matter was before the superior Court. But if the complaint and record disclosed no irrelevancy, incompetency, or illegality, such a judgment could not be reviewed, although the evidence might have been utterly insufficient to warrant it, because the Court could not know what that evidence was. Now, under the provisions of this Act the Court are told in each case the facts on which the judgment is based. The difficulty is to distinguish be- tween a conclusion in law and a conclusion in fact. If the facts stated are utterly insufficient to warrant the judgment, — if they cannot in any reasonable view be held to constitute the offence charged, — ^then the judgment will be reversed as erroneous in point of law, in this sense that there is no legal evidence to sup- port the conviction. But where there is some evidence of a rele- vant and competent character, the Court are not entitled to weigh it and decide whether the offence charged is proved. This is the province of the inferior Judge ; and if the conclusion arrived at by him can be held to be legitimately deduced from the several facts stated, the judgment must stand, although the superior Court might have decided differently on the same facts had they been called upon to do so. In such a case no proper question of law is raised, the conclusion being a conclusion in fact. This is well put by Justice Crompton in Belasco v. Hannant, and Barton ERRORS IN POINT OF LAW. 195 V. Hcmnant, 31 L. J., M. 0. 228: — "In both these oases the Section 3. " Magistrate has convicted. He has no right to send us facts, wtat are " and ask our opinion on them, except only so far as they raise a " errors in " point of law ; and the only question therefore which can be left point of " to us as a point of law in each case is, whether there was evi- ' " dence on which he might find the defendant guilty." The following cases illustrate the distinction. By sec. 1 of 2 and 3 WUl. IV., cap. 68 (the Day Trespass Act), it is enacted, " That if any person whatever shall commit any tres- " pass by entering or being in the daytime upon any land, without " leave of the proprietor, in search or pursuit of game," &c., " such " person shall, on being summarily convicted thereof before a Jus- " tice of the Peace, on proof on oath by one or more credible wit- " ness or witxiesses, or confession of the oifence, or upon other " legal evidence, forfeit and pay svich sum of money, not exceed- " ing £2, as to the Justice shall seem meet, together -vsjith the " costs of the conviction." In M'Adwm v. Lav/rie, H. C, Mar. 1, M'Adam 1876, 3 Eettie, Justiciary Cases, 20, the appellant was charged v. Laurie. before the Justice of Peace Court of the stewartry of Kirkcud- bright, with having contravened this enactment, inasmuch as he did " unlawfully enter, and was, without leave of the said William " Kennedy Laurie, found trespassing upon the lands known as the " farm of Cullenoch, in the occupation of George Henderson and " James Henderson, or one or other' of them, in the parish of Bal- " maglin., the property of the said William Kennedy Laurie, in " search or pursuit of game." The Justices convicted the appellant of trespassing on the farm of Cullenoch as libelled. Now, on its face the charge was rele- vant, and, in absence of the evidence on which the Justices con- victed, there would have been nothing to show that the conviction was erroneous in point of law. But the facts stated by the Justices showed the conviction to be erroneous in point of law. In the case obtained by the appellant it was set forth that the appellant with his wife managed the farm, on which he was said to have trespassed, for George and James Henderson, and that he and his wife were the only persons resident on it ; that the Court found it proved that George Henderson was tenant of the farm ; that it was admitted that the tenant of the farm was entitled to kill rabbits thereon, there being no reservation of them in the lease ; that the Justices found the appellant guilty upon the ground that the said George Henderson could not grant him permission to kill rabbits on said farm so as to protect him from prosecution under the Day Trespass Act. The question of law submitted to the Court was — " Can the appellant, in the circumstances stated, be " convicted of the trespass libelled ? " Here a proper question of law was raised, the conclusion arrived at by the Justices being a conclusion in law, not a conclusion in fact. The. Lord Justice- p. 22. Clerk put it thus : — " The case comes to this, that the appellant, " being the husband of the occupant of the farm, killed these " rabbits with permission of the tenant, who was not himself the 196 SUMMARY PROSECUTIONS APPEALS ACT, 1875. Section 3. " occupant, and the question is — Is the appellant therefore liable What are " to be convicted under the Day Trespass Act? I am of opinion "errors in •• that he is not. The appellant's wife occupied the farm and the la™*"°* " ^PP^ll^i* managed it. Even without leave of the principal " tenant he was entitled to kill and keep down the rabbits if " nothing were said to the contrary. But the rabbits were not " reserved by the landlord, and the appellant had the leave of the " tenant." Black V. Again, in Black v. Bradsliaw,li. C, Dec. 16, 187-5, 3 Rettie (Just.) Bradshaw ^g^ a question arose on the construction of the same statute, which would not have been disclosed and could not have been decided had the facts not been stated. The defence was that the appellant, being a member of the tenant's family, could not be guUty of the offence charged. This defence having been sustained by the Jus- tices, the Fiscal appealed under this Act. The facts stated in the case, as proved to the satisfaction of the Justices, were, that the respondent was the brother of Mrs Livingstone, the tenant of the farms of High and Low Glenluig; that Mrs Livingstone was a widow, without children, and resided on the farm of Low Glen- luig; that the respondent resided with her there, and had done so for at least five years ; that he assisted her in the management of Low Glenluig, and worked occasionally on both that farm and High Glenluig without receiving wages ; that he lived in family with Mrs Livingstone and received his board from her ; that he was not bound as a servant or to continue with Mrs Livingstone longer than he felt inclined. The question of law stated for the opinion of the Court was, — " Whether the respondent, in the circumstances stated, is guilty " of the ofience of trespass under the Day Trespass Act, 2 & 3 "Will. IV., cap. 68?" The Court, on the authority of previous cases, reversed this judgment, the Lord Justice-Clerk saying, " The question is con- " eluded by authority.. On the one hand the tenant has been held " not to be witliin the provisions of the Act. It is true indeed " that, in the case of Smellie (2 Broun, 194), Lord Mackenzie did " say that every one with the leave of the tenant would be in the " same positioji as the tenant himself, but the Court has not fol- " lowed that dictum out to its conckision ; for, on the other hand, " it was found, in the case of Selkirk (J. Shaw, 463), that a farm " servant did come within the provisions of the Act." " Now, the respondent here was not even in the position of a " farm servant. There was not the same necessity or call for him " to be on the land. He was not there in respect of his ordinary '■ occupation, and cannot therefore be in a more favourable posi- " tion than a farm servant. He does not, in my opinion, difier " from a mere stranger, who may happen to be residing with the " tenant. I think, therefore, the appeal slioiild be sustained." The following intei-locu.tor was pronounced : — " Answer the ques- " tion in the case in the affirmative : Reverse the determination of " the Justices : Eemit the matter to them, with tliis opinion, and ERRORS IN POINT OF LAW. 197 " direct them to proceed in consistency therewith : Find no ex- Section 3. " penses due, and decern.''^ On the other hand, in Grant v. Wright, H. C, May 31, 1876, 3 Grant v. Eettie (Just.) 28, an appeal was dismissed, "in respect the facts Wriijkt. " stated do not raise any question of law for the opinion of the " Court." The respondent was charged with hayuig been guilty of an offence within the meaning of the Act 7 and 8 Vict., cap. 95, ^ " in so far as on Friday, 31st March 1876, he did unlawfully and " wUfully take, fish for, or attempt to take, one or more salmon," (fee, " by means of set lines, in or from the estuary of the river " Findhorn, at a place near Elvin Point and opposite the village " of Findhorn, without a legal right or permission from the pro- " prietor of the salmon fishings there." The Sheriff having assoilzied the panel, the prosecutor appealed. The question of law stated for the Court was, " Whether the re- " spondent, professing to be fishing for flounders, and having " fished in a manner adajited for that purpose in the estuary of " the Findhorn at a place stated by some of the witnesses of the " complainer to be more likely for catching Sea trout than flound- " ers, but which was in point of fact frequented by both kinds of " fish, and one or more sea trout having come upon his line, and " having been there found by him, and having been taken by him " from the line and appropriated, has thereVjy rendered himself " liable to the penalties of the statute founded on in the com- " plaint V The Court held that it was for the Sheriff to decide, on the facts proved, whether the taking was wilful or not ; that the facts stated admitted of the view taken by the Sheriflf ; and that thus no question of law was raised by the appeal. The Lord Justice- Clerk (Moncreiff) said, " In order to prevent misapprehension, I " am anxious to explain that I by no means say that the species " or class of facts stated in this case may not justly lead to the " conclusion, in point of fact, that the accused wilfully fished for " salmon. It cannot be denied that the respondent was at one " time in the possession of these fish, having taken them off the " hook, or having them on the hook of the line which he had set. " That is a fact which, coupled with other facts, may prove that " the taking — the catching — was wilful. The Sherifi' must decide " first on the fact, which depends on the evidence ; and if he had " decided that the facts did prove the statutory ofience, we could " not have interfered. The only question of law really involved ' 3 Eettie, Justiciary Cases, 20. ' 7 and 8 Vict., cap. 95, sec. l.^"If any person not having a legal right or " permission from the proprietor of tlie salmon fishery, shall, from and after " the passing of this Act, wilfully take, fish for, or attempt to take, or aid " or assist in taking, fishing for, or attempting to take, in or from any " river, stream, lake, water, estuary, firth, sea, loch, creek, bay, or shore " of the sea, or in or upon any part of the sea within one mile of low-water- " mark in Scotland, any salmon, grilse, sea trout, whitting, or other fish of " the salmon kind, such person shall forfeit and pay," &o. 198 SUMMARY PROSECUTIONS APPEALS ACT, 1875. Sections. " seems to be, whether, if the capturing or attempt to capture be What are " innocent, and the fish is brought to land innocently, the subse- " errors in " quent appropriation of the fish amounts necessarily, and by it- Faw''" " ^®^^' ^ ofience provided for in the statute. I am of opinion " that the statutory ofience implies and requires ■wilful capturing " or -wilful attempt to capture, and that if this was not proved to " the satisfaction of the Sheriff', his judgment contains no error in " law which we are called on to rectify." Taylor v. In Taylor v. Oram and Sma/rt, 31 L» J., M. C. 252, the question Oram and in the inferior Court was, whether a house kept by the respondents Smart. ^^^ g^ refreshment house in the sense of 23 Vict., cap. 27, sec. 6, and so requiring a licence. The Magistrate held that the evidence did not bring the house within the definition of the Act. The Court of Exchequer held that the evidence, as stated in a case under 20 & 21 Yict., cap 43, raised questions of fact on which the decision of the Magistrate was conclusive, and this although some at least of the learned Judges did not agree with the Magistrate in the conclusion at which he had arrived. Martin, B., said (p. 256) — "There is only one conclusion of " fact that seems to me to follow, namely, that this was a room " kept open for public refreshment, resort, and entertainment. " That would be a conclusion in point of fact, and I agree that we " have to determine whether or not the Magistrate is wrong in " point of law, for the appeal is only given by reason of the " appellant being dissatisfied with the determination as being " ' erroneous in point of law "... On the ground that the " Magistrate has determined the facts, I concur with the rest of " the Court that the appeal shoiild be dismissed." Channel, B., said (p. 257) — " It is necessary in order to sustain. " a conviction to show the house was kept open also for public re- " freshment. Now, the Magistrate has found that it was not kept " open for public refreshment ; he has also found that it was not " kept open for public entertainment. It is urmecessary in my " opinion to say whether, if I had been exercising the functions of " the Magistrate, I should agree either in the conclusion of law or " fact at which he has arrived. I think we must see whether the " Magistrate was necessarily wrong." i Objections In the cases just quoted the evidence was dealt with as having to admis- been competently taken, and the findings in fact as being exhaust- sioa and jyg ^^^^ conclusive ; the error alleged was said to consist in the of''evi^°" inferior Judge having drawn an erroneous conclusion in law from dence. the admitted facts of the case. But the determination may also be erroneous in point of law in consequence of competent evidence having been rejected, or incompetent evidence having been admitted by the inferior Judge. Under the Summary Procedure Act the Judge is not required to note objections on this head.* But under 1 See also Cornwellv. Sanders, 32 L. J., M. 0. 6 ; Brown v. Turner, 32 L. J., M. C. 106 ; FulUr v. Newland, 27 J. P. 406 ; Ex parte Hurst, 27 3. P. 824. ••' Sec. 16 and Schedule I. See supra, pp. 56 et seq., 93 and 138. ERRORS IN POINT OF LAW. 199 this Act he must do so if either party require it — section 6 ; and in the Section 3. case stated there must be set forth any objections to the " admission Objections " or rejection of evidence taken in the proof." — Schedule A. *° ^ele- Again, the inferior Judge's determination may be erroneous in ^^'^^y- point of law in respect of the irrelevancy of the complaint. This, it is thought, is not exactly the sort of case to which this mode of appeal was intended to apply. Such an error is patent on the face of the complaint, and is in no way dependent on the evidence. StUl, it is an error in law, and so falls within the words of the section. In Henderson v. Mackenzie, March 18, 1876, 3 Rettie, 623, an appeal under this Act was entertained by the Second Division of the Court of Session, where the ground of appeal was that the inferior Judge had dismissed as irrelevant a complaint under the Dogs Act, 1871, 34 & 35 Vict., cap. 56. If appeal on this ground is competent the result is important, as such appeal may be taken notwithstanding clauses excluding review. Pre- viously it was often found not to be easy to decide what amount of irrelevancy was required to entitle the superior Court to over- ride such clauses. The application of the Act has not yet been fully tested by de- cision. It will certainly be of the greatest utility in obtaining an authoritative judgment on the construction of the very numerous statutes which fall to be administered by inferior Judges, the great obstacle to which formerly was that the facts on which the inferior Judge proceeded were not before the Court. The cases which have as yet been before the superior Courts have almost all been of this class. It has not yet been decided whether this mode of appeal is applicable to cases where the objection goes to errors or irregularities in procedure and matters of that kind, which may in validate the final determination, but which do not make it, strictly speaking, " erroneous in point of law." Probably appeal would be held competent in such cases if the objection was taken and noted in the inferior Court. In Schedule A the Judge is directed to state not only objections to the admission or rejection of evidence, but also any " other ground of appeal against the determination," and these words may be wide enough to cover such objections. It has been held in England that this mode of appeal does not apply to warrants granted for the recovery of rates, where the question of law stated is the validity of the rate. The reason is that in taxing statutes the validity of the rate, if it is objected to, falls to be settled by a mode of appeal specially provided. When the Magistrate is called upon to grant warrant for the recovery of the rate, the validity of the rate is assumed ; and as he has thus no jurisdiction in that matter no question of law as to its validity can be decided by him, or stated for the opinion of the superior Court. This is well explained by Chief-Justice Cockbum in Hx parte May, Ex parte 2 B. & S. 426. He says: — "The duty of Magistrates, when Jf ay. " payment is sought to be enforced, is to see that there is such a " rate as is alleged, and that the party summoned is assessed to it, " and that he baa not paid his assessment ; when they have ascer 200 SUMMARY PROSECUTIONS APPEALS ACT, 1875. Section 3. Cases to which Act applies. Appeal " tained ttose matters, the rate being good on the face of it, their " duty is to enforce payment, and not to enter into a question of " its legality, which is for the jurisdiction of the Quarter Sessions " on appeal." And in the same case Justice Blackburn says (p. 430) : — " The present case is not within the words or spirit of " Statute 20 & 21 Vict., cap. 43, sec. 2, which refers to matters " of which the Justices have summary jurisdiction . . . the " Justices have not jurisdiction to determine whether the rate is " good or not." But this must not be held as implying' that appeal is incompetent where the question decided by the inferior Judge is a question of law proper for his determination, although a special mode and Court of appeal may be given ; for instance, an appeal to Quar- ter Sessions, or to the next Court of Justiciary, which, but for the provisions of this Act, would exclude review by the High Court of Justiciary or the Court of Session. — See next note and section 9. Such a construction would render this Act inoperative in a large class of cases to which it seems to be specially intended to apply. ^ This applies, without exception, to all cases in which review is Form of applica- tion. competent excluded or restricted by the special statute ; it applies not only to stend' ' clauses affecting the groxmds of appeal, but also to clauses which exclusion indicate some particular Court of review, to the exclusion of all of review, others. Thus a case may be appealed under this Act to the High Court of Justiciary or to the Court of Session, notwithstanding that by the special statute a right of appeal is given to Quarter Sessions or to the next Circuit Court, to the exclusion of all other Courts of review. Such special modes of appeal are not superseded ; but if an appeal is taken under this Act the party appealing cannot afterwards avail himself of any other process of review ; he must choose his remedy — section 9. * The application may be contained in a letter, or in a minute, or it may be written upon the principal complaint, immediately after the determiaation complained of. The last mode is the best. If it is adopted, a note in the following terms will be suiEcient :■ — [Place and Date.^ " I hereby require you to state and sign a case setting forth the " facts and the grounds of the foregoing determination [or judg- " ment or conviction], for the opinion thereon of the High Court " of JusticiEiry [or the first or Second Division of the Court of " Session."] [Signed] A B, Complainer [or Respondent.] or C D, Agent for A B, Complainer [or Respondent.] As the time of lodging is essential, this note should be authen- ticated by the signature or initials of the inferior Judge or the Clerk of Court. If the application is by minute, it should be marked as lodged, with the date of lodging by the Judge or Clerk. If by letter, the letter should be registered ; and on receipt, the Judge or Clerk should mark on the envelope the date on which it was received. If the application is by letter or minute, the judg- ment complained of must be quoted or distinctly referred to. APPLICATION FOR A CASE. 201 ' The directions in this section as to the time within which the SbctionS. case must be applied for, intimated and lodged, must be closely Subdivi- complied with, under pain of the appeal being dismissed. The ^^°^ !• following decisions under the English Act show the strictness Tme with which similar directions have been construed in England : — v h The case must be " transmitted " to the superior Court within m„gt y^g three days after it has been delivered to the appellant — 20 and 21 applied Vict., cap. 43, sec. 2. for, lodged In Banks v. Goodwin, 3 B. and S. 548, 32 L. J., M. C. 87, the *«• case was delivered to the appellant's agent on 31st December 1862, who, on 1st January 1863, sent it by post to his London agent to be lodged in Court ; the London agent, however, did not lodge it until the 10th of January. It was held that the case had not been " transmitted " accordiiag to the Act. The following re- marks of Chief-Justice Oockbum (3 B. and S. 553) are important, as indicating what is to be held "transmitting," in the sense of the Act : — " I am quite satisfied that the interpretation sought to " be put on stat. 20 and 21 Vict., c. 43, sec. 2, by Mr M'Mahon, i.e., " that the mere act of sending off the case, the starting it on its " way to the Court which it is meant to reach, is enough, is not " the correct one. If, indeed, a party in the country sends ofi" " his case so that, throughout its progress to the Court, it may be " said to be in the course of transmission, I think that would he " sufficient. For. we are not to put a constrained construction " on the word " transmit," but see what was the intention of the " Legislature when they used it, and what was the object they " meant to secure. Their meaning was, that the party who ob- " tains the case shall send it ofi" within three days, so that it shall " reach the Court with the greatest despatch — that would satisfy " the exigency of the statute. Here that condition has not been " complied with. For although this case was sent off by the ap- " pellant from the country within the three days, yet, when it " reached his agent iu London, that agent, instead of sending it " on without delay, so as to be on its way to the Court, kept it " for eight days lying in his office." While agreeiag in the result. Justice Blackburn took a stricter view of the meaning of the word " transmit." " As at present advised, I think the condition not " complied with until the transmission is complete, — ^until the " case is lodged with the Court, and that must be within three " days. But it is not necessary to decide that point, and I give " ho final opinion upon it. Perhaps if the case had been put in " the possession of an independent third party, e. g. the post-office, " and so put out of the control of the appellant, and there had been " default in the post-office, that would do, but I should be sorry " if anything I say were to encourage appellants to trust such " matters to the post. But here the case was sent by the appel- " lant's attorney to his London agent, and retained in his hands " considerably beyond the three days, and I consider the attorney " and agent as the same. The appellant has therefore not in any " sense complied with the requisites of the statute." 202 SUMMARY PROSECUTIONS APPEALS ACT, 1875. Sections. Under the Scotct Ant, however, the appellant is authorised Subdivi- either to " transmit the case hy post," or to cause it to be lodged, sion 1. gee infra, sub-division 5 ; and it is thought that the wider view Time taken by Chief-Justice Cockbum would be taken in cases arising case muat Under the English Act, the appellant must give notice to the be applied respondent before lodging the case. This is regarded as being a for, lodged condition precedent to the right of having the case heard, and *"■ where it is not done the appeal will be struck out of the Crown paper. — Woodhouse v. Woods and others, 29 L. J., M. C. 149; Morgan v. Edwards, 29 L. J., M. C. 108. It is not enough to post the notice to the respondent within the three days if it does not reach him before the case is lodged. Thus, where the appel- lant, who had received the case on a Friday, sent the case to the Crown office on the next day, Saturday, and on the same day sent to the respondent a letter by post, containing a notice of ap- peal, and a copy of the case which was receivedT^in due course of post on the Sunday, it was held that the provisions of the statute had. not been complied with, because the case was lodged before notice actually reached the respondent, although both notice and lodging took place within the three days. — Ashdown v. Curtis, 31 L. J., M. C. 216. Again, the application for a case must be made within three days. Where judgment was pronounced on a Thursday, an appli- cation on the Monday following was held to come too late, and that notwithstanding the last day fell on a Sunday. — Peacock v. The Qii^en, 27 L. J., C. P. 224. The appeal was dismissed. In Fetmell v. The Ghwrch Wardens of Uxhridge, 31 L. J., M. C. 92, the Magistrates, after signing the case, sent it on a Thursday, not to the appellant, but to the solicitor who appeared for him in the caae. This was held to be delivery to the appellant, and the case not having been lodged in the office of the Court till the fol- lowing Monday, the appeal was dismissed. To return to cases under the Scotch Act — If judgment is pro- nounced on Tuesday, the application for a case must be made at latest on the following Friday. Sunday is coiinted as one of the three days unless it is the last. Thus, if judgment is dated Friday, application must be made at latest on the following Mon- day. But if the last of the three days falls on a Sunday, there is more difficulty. It has been held in England, under the Act 20 and 21 Vict., cap. 43, that when the decision of the Justices was pronounced on a Thursday, an application^ to them to state a case made on the following Monday was too' late. — Peacock v. The Queen, 27 L. J., C. P. 224, supra, which has been followed in several later cases. It is thought that, looking to the practice of the Scotch Courts in similar cases, an application made on the Monday would be held sufficient. By sec. 28 of 31 and 32 Vict., cap. 100, the Court of Session (Scotland) Act, 1868, power is given to reclaim against certain interlocutors " within six days " from their date." It has been held that where the last day for APPLICATION FOR A CASE. 203 lodging a reclaiming note fell on a Sunday, it was timeously SEcrtoN 3. lodged on the Monday following. — Russell v. Russell, Nov. 12, Subdivi- 1874, 2 Rettie, 82. Again, under the same section, either party ^1°° ^■ may " within the said period," i.e., six days, move the Court to Time vary the terms of any issue approved of by the Lord Ordinary. ^- j" In Craig v. JeayBlahe, Mar. 16, 1871, 9 Macph. 715, the Lord g^se must Ordinary approved of the issue on Tuesday, 7th March, the sixth be appHed day from which fell on a Monday ; on Tuesday, 14th March, the for, lodged defender lodged a notice of motion to vary the issue with the clerk *"■ of Court, and on the same day moved the Court to vary the issue in terms of the motion. It was objected by the pursuer to the competency of this motion, that it should have been made, or at least that a notice of motion shotdd have been lodged, within six days of the date of the interlocutor approving of the issue. In repelling this objection, the Lord President (Inglis) said, " Now " when a statute assigns a particular number of days within which " a party may exercise a privilege, it means that that may compe- " tently be exercised on the last of the days, and therefore it was " competent on the sixth day to move the Court. But the sixth " day after the interlocutor of the Lord Ordinary was Monday, " and it was impossible to move the Court on that day, it not " being a sederunt day, and therefore I think the defender was " entitled to move on the Tuesday, as being within the meaning " of the statute the sixth day." It may be said, however, that in both these cases the act ia question could not be done on the last day, the clerk's office not being open in the one case, and the Court not sitting in the other ; and that a diflferent rule may be applied where the act is one which can be done on a Sunday, for instance, posting or sending a letter. It is certainly safer to make the application on the Saturday in all cases where the last day falls on a Sunday, or to post the letter at latest on the Sun- day, if it is a case in which posting on the last day is sufficient. See note 12 to this section. ^ See notes to Schedule A. ^ See note 5, supra. * The first half of this subdivision is taken from sec. 36 of 20 Caution Geo. II., cap. 43 — see infra, p. 231 ; the latter half, which bears a? c. 43. ' In purely criminal cases or in quasi criminal irimSiai statutory prosecutions in which the usual criminal cases. procedure is adopted, it is not difficult to decide what is a final judgment or sentence ; but in civil cases and in some quasi criminal cases questions have been raised which will be more conveniently dealt with under the next head. Interlocutory judgments or incidental warrants can not be appealed pendente processu, and in such cases advocation or suspension must be adopted if otherwise competent. (2) In civil cases. — An appeal may be taken against any interlocutor, decree, or judgment, where the subject-matter of the suit does not exceed in value the sum of £12 sterling ; it being provided ' that appeal is not competent before final decree or judgment pronounced. By 54 Geo. III., cap. 67, sec. 5, the limit in value was extended from £12 to £25. The right of appeal in civil cases under this clause has beeii much curtailed by recent enactments in regard to the Sheriff-Courts from which most of the civil appeals used to come. By the Small Debt Act 1837, appeals are competent in small debt cases only on certain limited grounds, and only in causes to the value of £12 ; and special provisions as to appeal are made by the Act.^ In regard to cases in the ordinary roll of the Sheriff Court, it is declared by section 22 of the Sheriff Court Act, 1853, not to be competent to ]-emove or bring under review of the Court of Justiciary, by advocation, appeal, suspension, or in any other manner of way, any cause not exceeding ^ In M'D'mald v. Gordon, H. C, Nov. 2 and 3, 1868, 1 Couper, 10.5, the appeal was sustained, and a conviction under the same statute was set asiile, in respect the complaint did not set forth a relevant statement of the offence. - 1 Vict., cap. 41, sees. 2, 30, and 31 ; and 16 and IT Vict., cap. 80, sec. 12, ntqira, p. 3'i. APPEAL UNDER 20 GEO. II. CAP. 43. 225 the value of £25 sterling, or any interlocutor, judg- appeal ment, or decree pronounced in such cause by the geoJ^h^I' Sheriff. 1 This applies only to cases in the Sheriff's cap. 43.' ordinary roll, and not to small debt cases, in which fj^^^ °'^'^ appeal is still competent under 1 Vict., cap. 41. ^ By section 23, civil causes above the value of £12 may, by consent of parties, be tried as small debt causes ; where this is done, the whole powers and provisions of the Small I)ebt Act, including those as to review, are held applicable to the case. In Campbell v. Gillies^ it was held that where an action had been remitted from the Sheriff's Small Debt Court to the ordinary roll, it did not fall under section 22 of the Act of 1853, to the effect of excluding the mode of review provided for by the Small Debt Act. Section 22 of the Act of 1853 does not exclude appeal to the Circuit Court under the Jurisdictions Act on a question of jurisdiction.^ The result of these enactments is, that no judg- ment competently pronounced in a civil cause in the Sheriff' Court can be brought by appeal before the Circuit Court under the Jurisdictions Act; that in cases tried in the Small Debt Court there is a limited right of appeal to the Circuit Court under the Small Debt Act ; but that appeal is still com- petent under the Jurisdictions Act against any judgment pronounced in the Sheriff Court in cases under £25 in value, where the Sheriff has exceeded or refused to exercise his jurisdiction, or where the proceedings have otherwise been outwith the statute. Criterion of Value. — The question in each case is. What is the value of the subject matter of the suit ? When the value is under £25 appeal is competent ; 1 16 and 17 Vict. , cap. 80, sec. 22 ; made applicable to appeals as coming in room of advocations, by sec. 78 of 31 and 'A2 Vict., cap. 100. ^ Aitkm-v. Learmonth, Stirling, April 27, 1855, 2 Irv. 156. See sec. 1 of 16 and 17 Vict., cap. 80. 3 Inverary, Sept. 20, 1871, 2 Couper, 142. * Dick V. Gnat North of Scotland Railway Co., Aberdeen, Oct. 8, 1860, 3 Irv. 616. P 226 THE CIRCUIT COURT AS A COURT OF REVIEW. Appeal when it is not under that sum appeal is incom- UNDEB20 -nptpTlt Geo. II., petent. , -, . j CAP. 43. On this subject some assistance may be derivea (2) In civil from decisions under section 22 of the Sheriff Court cases* . o 1 " • Act, 1858, as to the competency of advocation m civil cases, the question being the same, What is the value of the cause ? But it must be remem- bered, in founding on such cases, that their applica- tion is rendered a little uncertain by this, that in them the burden is on the objector to show that the value is under £25, and if he fails to do so, review is competent ; on the other hand, in ap- peals under the Jurisdictions Act the burden is on the objector to show that the value is not under £25. Therefore it does not follow that, in all cases in which advocation has been held competent, appeal would have been held incompetent, or vice versa, because the decision on the competency may have diepended on the discharge of the burden of proof, which is not the same in the two cases. In judging of the value of the suit, the Court look solely to the conclusions of the summons or petition. 1 The onus of showing that appeal is incompetent lies on the objector. ^ He must show that the value of the cause is not under £25. Interest is regarded as part of the subject-matter of the suit ; expenses are not. If the principal sum concluded for is less than £25, but with interest concluded for as at the date of the summons exceeds that sum, appeal is incompetent. Appeal is also incompetent if, when decree is pronounced, principal arid interest together exceed £25, though at the date of the summons they together amounted to less than £26.^ The expenses of the suit though concluded for 1 Stott V. Gray, June 26, 1834, 12 S. 828. = Per Lord Justice-Clerk in WiUon v. Watson, J. S. 493. 2 Mitchell V. Murray, March 10, 1855, 17 D. 682. An advocation, held by a majority of the whole Court. See an instructive note by Lord' Deaa reporting the case. APPEAL UNDER 20 GEO. II. CAP. 43. 227 are not looked at in judging of the value. Thus Appeal if the sum concluded for is under £25, appeal is Q^'^n^" competent, although the sum decerned for, plus cap. 43. ' expenses, exceeds £25.^ (2) in civil Appeal is not rendered competent by a restric- tion of the summons which brings the sum claimed under £25.— Buie v. Steven, Dec. 5, 1863, 2 Macph. 208 ; this was an advocation. Where there is a conclusion ad factum prcestan- dum, and an alternative conclusion for a money payment, the latter is taken as the test of value, and if the sum alternatively concluded for is under £25, appeal is competent.^ But if the sum alternatively concluded for is inde- finite and not necessarily under £25, appeal is incom- petent. Thus, where a petition prayed for delivery of four lambs, or payment of £10 as the price thereof, " or such other sum as should be ascer- " tained to be the value thereof," it was held that as the value of the cause was indefinite and not necessarily under £25, advocation was competent. ^ So in actions of accounting where a certain sum, " more or less," is concluded for, as being the balance due by the defender, appeal is incompetent, although the balance decerned for may be less than £25, because it might have been greater, the sum concluded for being indefinite.* In actions of multiplepoinding the test of value is the amount admitted by the common debtor, and not the amount claimed by the various claimants in the process.^ ' HopUrh V. Wilson, Dec. 21, 1855, 18 D. 299. An advocation ; decided by a majority of the whole Court. ^ Wyher v. Hendrie, Glasgow, Sept. 17, 1849, J. Shaw, 265 ; Cameron v. Smith, Feb. 24, 1857, 19 D. 517— an advocation. ^Shotts Iron Co. v. Kerr, 2d Div., Dec. 6, 1871, 10 Macph. 195. On the question again arising in Aherdeen v. Wilson, July 16, 1872, 10 Macph. 971, the case was laid before the whole Court, when, by a majority of one, the principle of decision in The Shotts Iron Co. v. Kerr was a£Srmed. * Stottv. Gray, supra; and Lamb v. Henderson, Oct. 4, 1844, 2 Broun, 311. ^ Mathison v. Monkland Iron and Steel Co. and Another, Glasgow, Sept. 17, 1849, J. S. 266. 228 THE CIRCUIT COURT AS A COURT OF REVIEW. Appeal It is a question of some difficulty whether appeal Geo^il" is competent where there is a conclusion ad factum CAP. 43.' pi'cestandum or for interdict, and no alternative (2) In civil conclusion for a money payment by which to gauge ^^^' the value of the suit. The point was touched on but not decided in Wilson v. Addison,^ there being an alternative conclusion which enabled the Court to decide the case on another ground. In Glass v. Thouf Lord MoncreifF, on Circuit, held that where there was a claim for the ipsa corpora of some sheep, appeal was incompetent. But in the subsequent case of Wilson v. Watson a different decision was pronounced. That was an appeal from the judg- ment of the Sheriff, in an action of interdict brought by a heritable creditor to prevent a personal cre- ditor from carrying of by poinding certain move- ables which were on the ground included in the heritable bond. The poinding was only for £6, interest and expenses, but the value of the poinded articles was said to be much greater. The Sheriff having declared the interdict perpetual, the personal creditor appealed. It was broadly objected to the competency of the appeal that such cases were not among those reviewable under the Jurisdictions Act. Lord Justice-Clerk (Hope), without calling for a reply, repelled the objection. He held that the Jurisdictions Act, by its terms, imposed no re- striction on the right of appeal, in respect of the nature of the action^ provided only that the real value of the subject-matter in dispute did not exceed £25. Nor did the Act require that the conclusions of the summons in the case appealed should be pecuniary, or should bear on its face, or contain materials for shewing that the value of the subject was under £25. An appeal lay in every case, except where the subject-matter in dispute exceeded £25 in value ; and in every case where a party objected to the competency, the onus of 1 Perth, Oct. 11, 1845, 2 Broun, 519. V April 24, 1848, Arkley, 468. APPEAL UNDER 20 GEO. II. CAP. 43. 229 proving that the value exceeded that sum lay with appeal the objector. He did not think that the case of™^=^[^^ Glassy. Thou was rightly decided. In a note he cap.' 43."' says, — " Appeal is excluded if the value is above a '^' J""""'^ " certain sum. That cannot be shewn in the pre- '^*°''°' " sent or similar cases." ^ Again, in questions under section 22 of the Sheriff Court Act of 1853, the burden being on the objector to shew that the value of the cause is under £25, advocation (now appeal) would probably be held competent in such cases. ^ In cases in which, although the sum sued for is under £25, the decision involves the question of liability to a greater amount, appeal is incompetent ; as where one year's rent only is sued for, but the action is brought in order to fix the tenant's liability for the rent of the same premises under a lease for years. ^ FinalDecree or Judgment. — In Wilson v. Cameron,^ it was held that a judgment in favour of one of the parties, and finding expenses due, was not " a final " judgment " to the effect of rendering appeal com- petent, as the expenses had not been taxed and decerned for. In that case the respondent, in objecting to the competency of the appeal, founded on section 131 of the then recently passed Act of Sederunt of 10th July 1839, which is to the follow- ing effect : — " In. civil causes appeals to the next Circuit Court, in terms of the Act 20 Geo. II., cap. 43, 31 Geo. II., cap. 42, and 54 Geo. III., cap. 67, are competent only after a final judgment has been pronounced, and the matter of expenses has been disposed of, and where the subjecfc-matter of the suit does not exceed in value £25 sterling." It was maintained that the true construction of this clause was that expenses, if allowed, must be 1 J. S. 49.5. » Mobertsons v. Wilscyns, March 3, 1857, 19 D. 594. ' Drummond v. Hunter, Jan. 12, 1869, 7 Maoph. 347, Court of Lords Ordinary. * Invemeas, Sept. 20, 1844, 2 Broun, 284. 230 THE CIRCUIT COURT AS A COURT OF REVIEW. Appeal taxed and decerned for before appeal became com- UNrER20 T^pfp^f Geo. II., petent. CAP. 43. The appellant founded on a previous case, Fulton ^clis.""'^'^- M'Lellan,^ in which appeal was held competent, although expenses had not been decerned for. Lord Mackenzie, in holding appeal incompetent, observed that he had a stroiig impression that the clause just quoted was framed expressly to meet the case in question. This decision, however, was overruled in The Dun- dee Whale Fishing Company v. Mavour and Paton, Perth, 13th October 1848, J. Shaw, 15, where the state of matters was identical, the Lord Justice- Clerk (Hope), who consulted Lord Wood, observing that he wished to do nothing to discourage appeals to the Circuit Courts.^ The construction thus put upon the Act of Sederunt seems to be that an interlocutor finding expenses due, or finding no expenses due, as the case may be, is a disposal of the matter of ex- penses in the sense of the Act of Sederunt. In the case of Launders v. Mann and Company^ which was decided shortly afterwards by the same Judges, Lords Justice-Clerk (Hope) and Wood, an appeal was taken within ten days of an interlocutor decerning for expenses, but more than ten days after the interlocutor disposing of the merits. It was argued with some force that there could not be two different dates from which the ten days must run ; and that, as it had been decided in the case of The Dundee Whale Fishing Company that appeal was competent after decree on the merits, and before decree for expenses, the proper time from which to count the ten days must be the date of the interlocutor disposing of the merits. The Court, however, held that the objection could not be sustained. Lord Wood observed* that it was ' Glasgow, Sept. 29, 1826, Shaw (Just.), 172. 2 J, Shaw, 16. 3 Perth, April 24, 1850, J. Shaw, 348. * J. Shaw, 348. APPEAL UNDER 20 GEO. II. CAP. 43. 231 not the intention of the Court in the case of The ^^^^^ 20 Dundee Whale Fishing Company to pronounce any geo.'ii., decision which would have the effect contended for. 'i^^- ^^: In Whitson v. Heritors of Coupar-Angus judg- case" "^' ment on the merits and finding expenses due was dated 24th September, and the decree for taxed expenses 29th October. Notice of appeal was served 8th November, within ten days of 29th October ; but in the appeal no notice was taken of the last interlocutor giving decree for expenses. Lord Wood dismissed the appeal as incompetent. It was admitted that it would have been competent if the interlocutor of 29th October had been ap- pealed against.^ In Henderson v. M'Aulay and Company an appeal was held incompetent which was taken after the expiry of ten days from the decree disposing of the merits and expenses, but within ten days of a subsequent interlocutor allow- ing a consigned fund to be uplifted.^ II. The second subdivision is as follows : — " And suet appeal it shall be lawful for the party conceiving himself aggrieved to take and enter in open Court at the time of pronouncing such decree, judgment, or sentence, or at any time thereafter, ■within ten days, by lodging the same in the hands of the Clerk of Court, and serving the adverse party -with a duplicate thereof personally, or at his dwelling-house, or his procurator or agent in the cause, and serving in like manner the inferior Judge himself, in case the appeal shall contain any conclusion against him by way of censure, or reparation of damages, for alleged wilful injustice, oppression, or other malversation ; and such service shall be sufficient summons to oblige the respondents to attend and answer at the next Circuit Court which shall happen to be held fifteen days at least after such service." Section 36, which must be read in connection with this subdivision of section 34, is as follows : — " Provided always, that wherever such appeal shall be brought, such complainer, at the same time he enters his appeal as afore- said, shall lodge in the hands of the Clerk of Court from which the appeal is taken a bond, with sufficient cautioner, for answering 1 Perth, April 27, 185.?, I Irv. 221. 2 Glasgow, April 26, 1849, J. S. 219. Appeal UNDER 20 Geo. II., CAP. 43. Mode of taking an appeal. 232 THE CIRCUIT COURT AS A COURT OP REVIEW. and abiding by the judgment of the Circuit Court, and for paying the costs, if any shall be by that Court awarded ; and the Clerk of Court shall be answerable for the sufficiency of such cautioner." 1. — Mode of taking and entering an Appeal in open Court at the time of Pronouncing Judgment. The words of section 34 may be read in two senses without doing violence to the words used.^ First, by holding the words " by lodging the same " in the hands of the Clerk of Court, and serving " the adverse party with a duplicate thereof," &c., as referable both to the case of an appeal taken in open Court at the time of pronouncing judgment, and also to the case of an appeal taken within ten days thereafter. Secondly, by holding that these words apply only to the latter case ; and that if an appeal is taken and entered in open Court when judgment is pronounced, it is not necessary to serve the opposite party with a duplicate. The reason usually given in support of the latter view is that the adverse party is sufficiently certiorated of an intention to appeal by. an appeal being taken in his presence in open Court.* Section 132 of the Act of Sederunt of 10th July 1839, in regard to civil appeals, does not clear up this ambiguity ; it merely re-echoes the statute, the only addition being the word loth. " The appeal may be taken in open Court at the time of pro- nouncing the judgment, or within ten days thereafter, by both lodging the appeal in the clerk's hands, and serving the other party or his procurator in the cause with a copy thereof." It is not of much importance to consider which view is the true one ; but it is safer to proceed on the assumption that service is necessary in both cases. To proceed to the question what the appeal taken ^ See opinion of Lord Justice-Clerk (Moncreiff) in Anderson and Others v. Jamieson, 2 Couper, 366. » Hume, ii. 516. APPEAL UNDER 20 GEO. II. CAP. 43. 233 and entered must consist of — a verbal intimation appeal of appeal is not sufficient. Geo^ii^" In Anderson and others v. Jamieson} the appel- cap. 43. ' lants were convicted of an offence under 34 and 35 J^°^^ °^ Vict., cap. 32, and sentenced to imprisonment, on appeJ.*" 16th May 1872. Immediately after sentence was pronounced they intimated verbally in open Court that they intended to appeal to the next Circuit Court, and on the same day they lodged a bond of caution. The record bore the following minute, which was also dated 16th May 1872 : — " The foregoing judgment and sentence having been appealed to the Autumn Circuit Court of Justiciary, and caution having been found Lq terms of the statute, I hereby certify that such caution has been duly found to my satisfaction for each of the parties complained against and convicted by the foregoing sen- tence. (Signed) A. M'Kenzie. Deputy-Sheriff Clerh of Perthshire.'' On 11th September a note of appeal was lodged by the appellants with the Clerk of Court, and the Circuit Court was held on 19th September. The appeal was dismissed as incompetent, in respect that there was no judicial attestation of an appeal having been taken. Lord Cowan said,^ " No written " appeal was lodged with the Clerk, or served on " the other party. There is in fact no evidence at " all that an appeal was taken. The certification " by the Sheriff-Clerk annexe'd to the complaint is " simply that the bond of caution was lodged, and " that the caution was satisfactory to the clerk. " Supposing the appellants' agent had entered an " appeal, and got a regular minute entered stating " that such appeal had been entered in open Court, " or had a written appeal been lodged, a similar " certificate by the clerk would have been written " out." This case shows very strongly the necessity of there being some written judicial attestation of the ' H. C, Oct. 28, 1872, 2 Oouper, 359, certified from Perth Circuit Court. ' 2 Oouper, p. 366. 234 THE CIRCUIT COURT AS A COURT OF REVIEW. ^^^^^\o ^^^^ °^ ^^ appeal having been taken and entered. Geo. II., There is no imperative rule as to how this attesta- CAP. 43. tion should be made ; that depends upon whether tekfng°an ^^16 appellant lodges a separate note or minute of appeal, appeal or not. It would be sufficient, it is thought, to lodge a note or minute bearing the date of the judgment, and signed by the appellant, or his pro- curator or agent, setting forth the judgment com- plained of, and adding, " I appeal in open Court " against the prefixed judgment {or interlocutor or " sentence) to the next Circuit Court of Justiciary, " to be held at {name of Circuit Court)." This minute should be docqueted or certified in writing by the Clerk of Court or the inferior Judge, as having been lodged in open Court in terms of the statute. It is manifest that an appeal taken hurriedly in open Court cannot reasonably be expected to con- tain a detailed statement of the grounds of appeal. Accordingly, it has been decided that the paper lodged need not contain "reasons of appeal." In the case of Orrock v. Landale,^ a minute of appeal was entered for Orrock (apparently in open Court^), which bore that appeal was taken " for reasons set " forth in the said process, and which will be stated " at the bar of the said Circuit Court of Justiciary." It was objected to the competency of this appeal that no " reasons of appeal were stated," and it was argued that the Court could not determine whether " the reasons of such appeal" were " not relevant " or not instructed,"^ unless reasons were set forth. Lord Cockburn, after consulting with Lord Mon- creifi", repelled this objection.* It is not certain whether this decision would be held to be confined to appeals taken and entered in open Court /^ but there seems to be no solid 1 Perth, May 3, 1844, 2 Broun, 189. ' This does not appear from the report. ' Sec. 34, 3d subdivision, infra. * See a similar question under 2 and 3 Will. IV., cap. 68, sec. 14, in Mac- gregor v. Latour, H. C, Nov. 13, 1854, 1 Irv. 579. ^ Per Lord Justice-Clerk (Moncreiff) in Anderson and Others v. Jamieson, 2 Couper, 365. APPEAL UNDER 20 GEO, II. CAP. 43. ~ 235 reason why it should not apply also to appeals appe^vl lodged within ten days thereafter, in as far asoBo^iL^ giving the respondent notice is concerned. cap. 43. ' Again, where no separate writing is lodged by the ^kfng"L appellant, a note of appeaP should be written on the appeal. principal summons or complaint, or in the minute- book of Court, and signed by the appellant or his pro- curator, and certified or countersigned by the Clerk of Court or the inferior Judge, as having been taken and entered in open Court in terms of the statute. At the time he enters his appeal the appel- lant must lodge in the hands of the Clerk of Court a bond with sufficient cautioner — (1), for answering and abiding by the Judgment of the Circuit Court ; and (2), for paying the costs, if any shall be by that Court awarded.^ Where the bond did not find caution for expenses, an appeal was dismissed as incompetent.^ It has been held not to be necessary under the statute that the bond should be signed by the appellant, " a bond with a sufficient cautioner " being all that is required.* It has also been held not to be a fatal objection to an appeal that there was no certificate that caution had been foimd, if in point of fact it had been found ;^ but as the time of lodging the bond is as essential as that of taking the appeal,^ some judicial attestation of the fact made at the time seems to be necessary. In practice, the Clerk of Court certifies in writing on the appeal, or record, that caution has been found to his satisfaction in terms of the statute.'' 1 To the same effect as that on p. 234, taking care to identify the judg- ment appealed against as " foregoing," if it is so, or by description. 2 Sec. 36. 3 Christie v. Johnston, Sept. 14, 1854, 1 Irv. 660. * Wyllie V. Lawson, Ayr, Sept. 16i 1863, 4 Irv. 441, per Lord Ardmillan. ' Marshall v. Turner, Glasgow, April 26, 1849, J. Shaw, 222. ' See note 4. ' " [Place and Date] The appellant has found caution acted in the books " of Court to abide by the judgment of the Circuit Court, and for the ex- " penses, if any, that shall be by that Court awarded in this appeal " [Signed] A B, Depute Sheriff-Clerk." 236 THE CIRCUIT COURT AS A COURT OF REVIEW. Appeal The bond luust be lodged at the time the appeal GEo^if ! is taken ; if this is not done the appeal will be dis- CAP. 43. ' missed, even although the bond is lodged within Sgin ^6^ days thereafter.' The Clerk of Court is answer- appeal, able for the sufficiency of the cautioner.^ From the wording of section 34 of the Act, and also of section 132 of the Act of Sederunt,^ it may be doubted whether service on the respondent is necessary when the appeal is taken in open Court; but in Gall v. Potts Lord Ivory dismissed an appeal as incompetent where service was not made within ten days, though the appeal had been duly taken in open Court.* 2. Mode of taking an Appeal within ten days of Judgment Pronounced. First, The principal appeal must be lodged in the hands of the Clerk of Court in which the judg- ment complained of was pronounced, and a dupli- cate served on the respondent or his agent within ten days of the date of the judgment. Form of Appeal. — It cannot be said that there is any uniform rule or practice in regard to the form or contents of the appeal. As to form, the observa- tions made in regard to bills of suspension may be held as repeated.^ The appeal is addressed, " Unto " the Right Honourable the Lord Justice-General, " the Lord Justice-Clerk, and the Lords Commis- " sioners of Justiciary, or such of their Lordships " as shall be present at the next Circuit Court of " Justiciary to be holden by them, or one or more " of their number, within the city (or burgh) of " , in the Spring (or Autumn) of 18 ." It may either be in the shape of a petition con- 1 M'Millan v. Campbell, Jan. 21, 1832, 10 S. 220 ; SUnner v. Robertson, Perth, May 2, 1844, 2 Broun, 185 ; Keane v. Lang, Glasgow, May 3, 1866, 5 Irv. 248. = Seo. 36. 3 A. S., July 10, 1839, seo. 132. * Ayr, Sept. 25, 1857, 2 Irv. 704. ' Supra, p. 174. APPEAL UNDER 20 GEO. II. CAP. 43. 237 taining the reasons of appeal, and concluding with a appbai, prayer ; or it may consist of an abbreviated petition o^o!^ il° and prayer, with a statement of facts and pleas in ca.v. 43. law annexed. The appeal should be signed by the tj[kfng°L appellant or his agent. appeal. As to the contents of the appeal, it may be doubted whether it is necessary to the competency of the appeal that reasons should be stated;^ but it is usual and proper to state them. If no reasons are stated, it will always be in the power of the respondent to complain of having been taken by surprise, and the omission may be punished by the case being delayed, or expenses refused to or awarded against the appellant. Whether reasons are stated or not, there should be a distinct state- ment of the procedure in the inferior Court, and the judgment or interlocutors complained of should be quoted at length. The prayer should be care- fully drawn, and contain everything which the ap- pellant demands. The appeal may be signed either by the appellant or his procurator or agent. When lodged, the appeal should be docqueted and initialedby the Clerk of Court as having been lodged.^ Service. — There are no special directions in the Act as to the mode or proof of service on the re- spondent or inferior Judge. The duplicate appeal need not be served by an officer of Court, or by any person in particular ; but there must be a pro- bative attestation of the fact of delivery before wit- nesses,^ or a notarial instrument, unless the re- spondent or his agent accepts and acknowledges service.^ In the latter case there should be a holograph acceptance of service written on the principal appeal if possible ; if separate, it should be lodged with the Clerk of Court. A certificate of ' See the case of Orrock v. Landale, supra, p. 234. ' For inatance, " Perth, 18th February 1876. —Lodged. " [Initialed] A B." ' M'Millan v. Campbell, infra. This attestation or certificate should be written on the principal appeal ; if on a separate paper, it should be lodged with the Clerk of Court. * Weaiherstone v. Gwrlay, April 13, 1860, 3 Irv. 589. 238 THE CIRCUIT COURT AS A COURT OF REVIEW. Appeal senice by the appellant's agent, not attested by ™^^^2o witnesses, is not sufficient. ^ CAP.' 43,' Service may be made either on the respondent or Mode of on his procurator or agent. ^ If the appeal con- appe"i^" tains any personal conclusions against the inferior Judge, service must be made on him in like manner and within the same time. Secondly, Both the lodging and the service must take place within ten days after the date of the judgment, and fifteen days at least before the diet of the Circuit Court. ^ In Allan v. Stewart^ judgment was dated 24th July, the appeal was lodged timeously on 3d August, but service was not made till 12th August. Lord Cowan held the appeal incompetent, in re- spect that service was not made within ten days after the date of judgment. As appeals may be taken up for discussion at any time during the sitting of the Circuit Court, the diet fixed for the meeting of the Court is the punctum temporis looked to in counting the fifteen days. A duplicate appeal was held to be well served on the 16th day before the diet, including in the computation both the day of service and the day on which the Court met. In other words, the fifteen days may include either the day of service or the day of the diet, but not both days.^ It may happen, through no fault of the appellant, that although the appeal is lodged and served within the ten days, there are not fifteen free days between service and the meeting of the Circuit Court. In a case in which this occurred, sentence being dated 14th September, and the Court meeting 1 M'Millan v. Campbell, 10 S. 220. = See. 34. 2 Sec. 34 and see. 132 of A. S. lOth July 1839 ; but see sec. 11 of 38 and 39 Vict. , cap. 62, as to appeals against sentences of imprisonment. * Inverary, Sept. 17, 1857, 2 Irv. 699. ' M'Ritcfde v. Thomson, Perth, April .30, 1847, Arkley, 270. As to the computation of time in questions of deathbed and bankruptcy see 2 Bell's Com. (Maolaren's edition), 168, and Er^kine, iii. 8, 96, and iv. 1, 41, pp. 980 and 1073 (Nicholson's Edition), and notes. APPEAL UNDEE 20 GEO. II. CAP. 43. 239 on the 28th of the same month, it was held compe- Appexl tent to withdraw the appeal, "reserving to theGEo^iil* " appellant all right competent to him to prosecute cap. 43. ' " the same before the next Circuit Court for the ^^^ °^ " hearing of appeals to be holden in Glasgow," and appeaf.^" to proceed with the appeal at the next Circuit without serving of new.^ Lord Cowan held^ that the notice given for the first Circuit, although a bad one for that Circuit, was a good one for the next. An important alteration was made by section 11 of the Summary Prosecutions Appeals Act of 1875, in regard to the time for lodging appeals against sentences of imprisonment. The statutory rule that the appeal must be lodged at latest ten days after sentence pronounced sometimes operated harshly where the sentence was one of immediate imprison- ment, which prevented the prisoner from taking the necessary steps to have his appeal lodged and served • within the ten days. To remedy this it is provided^ that in appeals to the Court of Justiciary, or any Circuit Court thereof, under the Act 20 Geo. II., cap. 43, or under any Act amending it or incorporating any or all of its provisions, as to appeals against a sentence of imprisonment, such appeal shall, if otherwise well taken, be held to be timeously made, if lodged with the Clerk of Coiut and intimated to the respondent at any time during the appellant's imprisonment, or within ten days from the date of his liberation ; but this enactment is declared not to apply to any appeal against a sentence of imprisonment, " unless " the imprisonment under such sentence commenced " within ten days after the same was pronounced,"* as in such cases the imprisonment forms no impedi- ment to appealing. It may be a question whether 1 Newlands v. Stewart, May 3, 1866, 5 Irv. 245. 2 Ibid., p. 247. 3 38 and 39 Vict., cap. 62, sec. 11. * This excludes from tlie provisions of the clause cases where ten days or more are allowed for payment, or for execution by poinding, &c. before sentence of imprisonment is ordained to be enforced. 240 THE CIRCUIT COURT AS A COURT OF REVIEW. ^f^^A^ this clause does not, in regard to the cases to which Geo. II., it appHeSj do away with the necessity of allowing CAP. 43. fifteen days between service and the meeting of the Court. On the one hand, the words " such appeal "shall be held to be timeously made" are wide enough to cover everything relating to the time of lodging; and besides it maybe said thatimprisonment may not only run beyond the ten days but within the fifteen days. On the other hand, if these words are to be held to repeal the provision as to fifteen days, there is no security for the respondent being sum- moned, on sufiicient, or, indeed, on any inductee. The question has not yet arisen for decision, but it seems to be the safer view that fifteen days must still be allowed between service and the meeting of the Circuit Court, when the appeal is to that Court. Caution. — The bond of caution must be lodged at the same time as the appeal. III. — Procedure before the Circuit Court. On the Court being fenced the Circuit Clerk of Justiciary calls upon parties having appeals to lodge them in his hands ; the appeals and all necessary productions should then be lodged. The Court must have before them proper evidence that the decree or judgment complained of has been pro- nounced. In criminal cases the sentence is written on the principal complaint, which must therefore be produced. In small debt cases the principal sum- mons or complaint, with the decree annexed, as directed by section 13, and in the form provided in Schedule A of the Small Debt Act,^ or a certified copy thereof, or the book of causes kept in terms of section 17, should be produced. In Baxter v. Kennedy^ an appeal under 1 Vict., cap. 41, was dismissed by Lords Deas and Neaves, on the ground that there was no evidence of the ' See I Vict., cap. 41, sec. 13, and Schedule A. » Perth, Sept. 11, 1861, 4 Irv. 84. APPEAL UNDER 20 GEO. II. CAP. 43. 1241 decree having been pronounced. It was pleaded appeal for the appellant that the book of causes kept in CEo.'^n.,' terms of section 17 was the best evidence of the "ap- 4.3. decree, and that as the Sheriff-Clerk, in whose before'^Sie hands it was, was, quoad that process, clerk of the ciiouit Court of appeal also, the decree was in manibus curice. The Court did not decide whether the copy decree in the book was equivalent to the decree, but held that " there was no evidence before the " Court that any such decree had been pronounced, " as the Court were asked to review."^ In a later case, where the book of causes was lodged in the hands of the Circuit Clerk, the Court (Lords Neaves and Jerviswoode) held that the decree contained in the book was the best evidence that could be produced, it being the only thing- authenticated by the Sheriff. ^ If no appearance is made for the appellant the respondent lodges a minute craving protestation and dismissal of the appeal, with expenses. Appeals are usually heard at the conclusion of the criminal trials ; but if two Judges are present it is not unusual, if they are not sitting simulta- neously trying criminal causes, for one of them to dispose of the appeals. Where the appellant has been sentenced to a term of imprisonment and liberated on caution, he must appear personally in Court on the day or days fixed for the hearing and disposal of his appeal under the penalty of being held to have abandoned it. 3 In such cases the appellant should be present at the meeting of the Court, and remain within reach till his case is disposed of The following are the provisions of the Jurisdic- tion Act as to procedure and disposal of the appeal : — " And thereupon the Judge or Judges at such Circuit Court ' Per Lord Deas, 4 Irv. 85. 8 Sinclair v. Mosa, Glasgow, April 25, 1863, 4 Irv. .390- » 38 and 39 Vict., cap. 62, sec. 10. Q 242 THE CIRCUIT COURT AS A COURT OF REVIEW. Appeal shall and may proceed to cognosce, hear, and determine any such UNDER 20 appeal or complaint, by the like rules of law and justice as the cj^p" 43 ' ^°^^ °f Session or Court of Justiciary respectively may now Procedure ""S'^o^'^s and determine in suspensions of the interlocutors, decrees, tefore the sentences or judgments of such inferior Courts ; but the said Cir- Circuit cuit Court shall proceed therein in a summary way ; and in case Court. they shall find the reasons of any such appeal not' to be relevant, or not instructed, or shall deteimine against the party so com- plaining or appealing, the said Judge or Judges shall condemn the appellant or complainer in such costs as the Court shall think proper to be paid to the other party, not exceeding the real costs bona fide expended by such party ; and the decree, sentence, or judgment of such Circuit Court, in any of the cases aforesaid, shall be final." As to the hearing and disposal of the appeal the same rules are observed in criminal causes as those in force in suspensions or advocations, which have already been fully explained.^ Civil causes are heard and disposed of in accordance with the rxiles of civil procedure, but in the most summary manner. Summary disposal of the cause is of the essence of this mode of review; it is better that a rough and ready mode of decision should be adopted than that further expense and delay should be in- curred in cases which are unable to bear them. At the same time it often unfortunately happens that points of great importance as to the construction of penal statutes, or procedure in the inferior Courts, arise for decision in trifling appeals. A single Judge, or even two Judges, may well hesitate to decide such points without consultation with their brethren. Moreover, the Circuit Court is not a very favourable place for deciding intricate points of law ; there is always more or less hurry during the hearing, not much time for avizandum, owing to the lateness of the sittings, and often a dearth of the necessary books of reference. Add to this that the papers are sometimes placed in the hands of counsel when they are engaged in the conduct of criminal trials with the result that there is a risk of the case being imperfectly argued. 1 Supra, pp. 168 and 177. APPEAL UNDER 20 GEO. II. CAP. 43. 243 To provide for this it is enacted by section appeal 07 UNDER 20 ^'' Geo. II., " Provided always, and it is hereby enacted by the authority '^^' aforesaid, that in case such Circuit Court shall, in cognoscing or i^efore the proceeding upon such appeal, find any difficulty to arise, that by Circuit means thereof such Circuit Court cannot proceed to the determina- Court. tion of the same consistently with justice and the nature of the case ; in any such case, and not otherwise, it shall and may be lawful to and for such Circuit Court to certify such appeal, together with the reasons of such difficulty, and the proceedings thereupon had before such Circuit Court, to the Court of Session or Court of Justiciary respectively, which Courts are hereby respectively autho- rised and required to proceed in and determine the same." This provision is often taken advantage of. The Judge or Judges pronounce an interlocutor in which, in respect of the importance of the questions raised, they certify the case, if it is a criminal one, to the High Court of Justiciary, to meet on a day named, and appoint the parties to be prepared to discuss the appeal at that sederunt, or at such other time as may then be jBxed by the High Court. This interlocutor is written on the principal appeal, and signed by the Judge or Judges.^ If the case is a civil case, it is certified in the same way to one of the Divisions of the Court of Session. Strictly speaking, " the reasons of such difficulty" should be stated in the interlocutor. But the course usually followed is that, on the case being called before the High Court, the Judge who certi- fied the case, or the senior Judge if there were two, states orally to the Court the nature of the case and the reasons of certification.^ ' Lords N and J. Circuit Oowt of Justkiary, Perth, nth April 1876. A(A. C, for Appellant — Alt. D, for Eespondent. In respect of the general importance of the questions raised in this ap- peal, and that it is expedient that the same should be authoritatively settled hy a judgment of the High Court, Certify this case to the High Court of Justiciary, to meet on Monday, the 24th day of May next ; and appoint the parties to be prepared to discuss the same at that sederunt, or at such other times as may then be fixed by the said Court. [%»c(i] C N C B ' Whatman v. Ogilme, H. C, June 3, 1854, 1 Irv. 483. 244 THE CIRCUIT COURT AS A COURT OF REVIEW. uNDEf20 The case is usually heard before a full bench, or Geo. II., as many Judges as can attend. Procedure ^^' °^ ^^® ^^^® coming bcforc the High Court, on°certit they are of opinion that from its nature it will be cation, jj^oj-e fitly dealt with in the civil Court, they remit it to one of the Divisions of the Court of Session.^ When a civil case had by mistake been certified to the Sigh Court instead of to the Court of Session, it was remitted to the Second Division of the Court of Session for their decision. ^ An objection to the competency of an appeal cannot be stated for the first time before the High Court if it was not stated before the Circuit Court. ^ Again, a respondent was held not entitled to plead before the High Court a ground of conviction which was not pleaded before the Sheriff or the Circuit Court, and which did not appear ex facie of the complaint and proceedings to be the ground on which the Sheriff convicted.* In hearing and disposing of the case, the High Court proceed in the same manner as if the case had been brought before them for review in the first instance. 5 If the appellant has been liberated on caution, he must be personally present at the hearing and dis- . posal of the case.^ In regard to certification, a practical suggestion may be made for the consideration of appellants. If the question involved is one of novelty or diffi- culty, the more rapid and less expensive course is to bring the case at once before the High Court, if this be otherwise competent, by advocation or sus- pension. If it is really a question of difficulty and importance, it runs a great risk of being certified ; 1 Beattie v. Gemmel, Feb. 4, 1862, 24 D. 4.31 ; Burrell and Son v Foster H. C, Nov. 2, 1868, 1 Couper, 103. 2 Caw.buslang, cfcc. Soad Trustees y. Graham, H. C, Nov. 24, 1845 2 Broun, 550. 2 Whatman v. Opilvie, supra, p. 24.3. * Macdonald V. Gordon, H. C., Nov. 2 and 3, 1868, ] Couper, 105. ^ Supra, p. 177. « 38 and 39 Vict,, cap. 62, sec. 10. APPEAL UNDER 1 VICT. CAP. 41. 245 and certification involves not only delay, but a Appeal double appearance by counsel and agent, the ex- 1 vict., pense of which will probably not be compensated cap. 41.' by any expenses which may be awarded. SECTION II. Appeal under 1 Vict., cap. 41, The Small Debt Act, 1837. By section 30 of the Act it is declared " that no " decree given by any Sheriff in any cause or pro- " secution decided under the authority of this Act,^ " shall be subject to reduction, advocation, suspen- " sion, or appeal, or any other form of review, or " stay of execution, other than provided by this " Act, either on account of any omission, or ir- " regularity, or informality in the citation or pro- " ceedings, or on the merits, or on any ground or " reason whatever." The means of review provided by the Act in section 31 are limited in more ways than one — -first, as to the Court of review ; and secondly, as to the grounds of appeal. The Court of review. — Any person conceiving himself aggrieved by any decree given in any cause or prosecution raised under the authority of this Act, may bring the case by appeal before the next Circuit Court of Justiciary ; or where there are no Circuit Courts {i.e., in the three Lothians and Peeblesshire) before the High Court of Justiciary. It is sufficient here to observe that it is incompe- tent, unless in exceptional circumstances, which will 1 These are, ' ' All civil causes and all prosecutions for statutory penalties, " as well as all maritime civil causes and proceedings wherein the debt, de- " mand, or penalty in question shall not exceed the value of £8, 6s. 8d. " (raised to £12 by section 12 of the Sheriff Court Act, 1853), " exclusive of •' expenses and fees of extract." — 1 Vict., cap. 41, sec. 2. As to remitting cases from the ordinary to the Small Debt EoU, see sec. 4 ; and as to re- mitting cases of a higher value than £12 to the Small Debt KoU, see sec. 23 of the Act of 185.'J. As to whether suits for statutory penalties are still competent under the Small Debt Act, see suprO,, pp. 107 and 108. UNDER ] Vict CAP. 41. 246 THE CIRCUIT COURT AS A COURT OF REVIEW. Appeal ]jq afterwards explained, to bring before the High 1 Vict., Court of Justiciary, in the first instance, by ad- vocation, suspension, or appeal, any case which could be appealed to the Circuit Court under this clause. Mode of Appeal. — The appeal is to be taken in the manner and by and under the rules, limitations, conditions, and restrictions contained in the Juris- dictions Act, " except in so far as altered by this " Act." Passing over in the meantime the grounds of appeal, it is provided that no sist or stay of the process and decree, and no certificate of appeal shall be issued by the Sherifi'-Clerk, except upon " consignation of the whole sum, if any, decerned for " by the decree and expenses, if any, and security " found for the whole expenses which may be " found due under the appeal." In other respects the rules already explained as to taking and entering, and lodging and serving an appeal, and as to finding caution and lodging the bond under the Jurisdictions Act, apply to cases under this Act. The grounds of appeal competent. — The object of this and similar clauses which restrict the grounds of appeal, is to render the judgment of the inferior Judge final, in so far as this is possible consistently with preventing injustice and oppression, or a gross disregard or abuse of statutory directions and rules of procedure. The grounds of appeal, therefore, are intended to be exhaustive ; but it will be seen presently that being coupled with a limitation of the right of appeal as to the Court of review, they do not afford a complete protection against all cases of oppression and injustice. Before describing the .grounds of appeal, it may be convenient to note shortly some of the grounds on which appeal is not competent. Review on the merits is expressly excluded, and this renders incompetent any inquiry into the facts, APPEAL UNDER 1 VICT. CAP. 41. 1^47 although the result in law may have been affected appeal by thefacts proved.^ S"V"i^^.^ Review is also expressly excluded on the ground cap. 4i.' of any omission or irregularity or informality in the ^^^^^g ^f citation or proceedings which the Court shall think appeal. did not take place wilfully, or have not prevented iiiiL^^"^^^" substantial injustice from having been done.^ Lastly, review on the law is incompetent, unless the objection can be brought under one of the grounds of review mentioned in section 31. The grounds of appeal are, — (1), Corruption or malice and oppression on the part of the Sheriff. Corruption need not necessarily be moral corrup- tion, such as that attributable to bribery, undue influence or partiality. It is sufficient if there be legal corruption ; such as hearing one party and refusing to hear the other ; or hearing one party in the absence of the other. In arbitration law there are numerous instances of decrees-arbitral having been reduced on this ground where there was no reason to impute bad faith to the arbiter.^ The same observation applies to the words " malice and oppression." Personal malice on the part of the Sheriff is not required. " What was done " might be so grossly unjustifiable that the law " would hold it equivalent to personal malice."* This definition of malice is one well known in actions of damages for the illegal use of diligence, judicial slander, and other privileged cases. Pro- cedure regular in itself, and which in most cases would be competent and justifiable, may in excep- tional circumstance be unjustifiable and oppres- sive ; and yet there may be no personal malice on the part of the Judge, but only an unthink- ing or reckless adherence to routine, where a little reflection would have shown that an applica- 1 See. 30. = Sec. 30. ' Bell on Arbitration, p. 36. * Per Lord Deas in Philip and Others v. The Forfar Building Invettmen Cvmpany, Sept. 16, 1868, 1 Couper, 87. 248 THE CIRCUIT COURT AS A COURT OF RKVIEW. t^llt^ tion of the usual rules to that particular case would UNDER , , i^ - , . iVicT., operate unjustly. Again, a Judge through ignor- c^^. 41. g^jjgg j^g^y. ^j,y ^^^ decide a case not competently grounds of before him ; or through slovenliness may neglect appeal, qj. yiolate some of the statutory forms in an sion.^^"^^^ essential respect. This leads to the observation that the grounds of appeal given in this section run somewhat into each other. For instance, there may be deviations from statutory forms so wilful, or so grossly unjust in their character, as to con- stitute oppression ; or the Sheriff may entertain a case so palpably incompetent or beyond his juris- diction as to bring his acts under that category. Accordingly, what in one case is called oppression, may in another be regarded as incompetency or defect of jurisdiction. Nothing is here said of malice and oppression on the part of any one except the Sheriff. It is not often that malice or oppression on the part of one of the litigants can affect the conduct or decision of a case, unless the Judge lends himself to the op- pressive proceedings. Such cases, however, may occur, as, for instance, when the pursuer prevents the defender's witnesses from coming forward to give evidence ; and if this happens the defender can bring his case before the supreme Court by suspension, or by appeal under the Jurisdictions Act, notwithstanding the exclusion of review. The following cases, which were prosecutions at common law, and under various police statutes, are instances in which convictions or judgments have been set aside on the ground of oppression : — A person was precognosced and cited to attend as a witness at a criminal trial ; on his attending he was forthwith put to the bar and tried for the oflmce in regard to which he was precognosced. ^ A girl of thirteen years of age, against whom a warrant for examination on a charge of assault had 1 Bikhie V. Filmer, H. C, Dec. 20, 1848, .1. S. 142 ; see also Robertson v Madcaij. II. C, July 21, 1846, Arkley, 114. API'EAL UNDER 1 VICT. CAP. 41. 249 been granted by the Sheriff, was apprehended at appeal eleven p.m., detained all night in the Police Office, J'vict., without being taken before the SheriflF, and on the cap. 41. day following her apprehension was tried summarily J^unds of and convicted.^ appeal. A married woman, a licensed broker in Edin- gid^ p^"^®^' burgh, was apprehended on a Monday morning, on a warrant granted on the Saturday immediately preceding. She was immediately tried summarily in the Police Court on a charge of reset of theft, vmder the Edinburgh Police Act, 11 and 12 Vict., cap. 113, and convicted. The decision in this case rested not on the ground that in all cases under the Police Act such summary proceedings were illegal, but on the serious nature of the charge, reset of theft, and the fact that although warrant was granted on the Saturday to cite witnesses for both parties, the suspender was unable to compel the attendance of her witnesses, who required twenty- four hours notice, as the warrant was not brought to her knowledge. 2 A refusal of delay in proceedings under the same Act was held a good ground of suspension.^ A person was charged with a contravention of section 209 of the General Police Act, 13 and 14 Vict., cap. 33. Before his plea was entered he applied for delay to enable him to obtain advice, and to have an opportunity of examining witnesses. This application was refused by the magistrate, and no note was taken of the refusal, although the clerk was bound to note such refusal, in terms of certain rules framed under section 349 of the Act.* The grounds of appeal competent under section 33 of that Act are the same as those in section 31 of the Small Debt Act. 1 Crawford v. Blair, H. C, Nov. 17, 1856, 2 Irr. 511. ^ Oraliam v. Linton, H. C, Nov. 24, 1856, 2 Irv. 5.58. See also Cogan or Dcvany \. Anderson, H. C. , Dec. 16, 1854, 1 Irv. 588. 3 O'Brien and Others v. Linton, H. C, Feb. 21, 1857, 2 Irv. 603; and Oir V. M'Callumy H. C, June 25, 1855, 2 Irv. 183. Mahon v. Morton, H. C, Feb. 6, 1856, 2 Irv. 383. 250 THE CIRCUIT COURT AS A COURT OF REVIEW. under'' -'■^ ^^^^ ^- M:'Gill,'^ a child of eight years of age 1 Vict., was apprehended, placed at the bar of the Police CAP. 41. Court, and tried summarily on a charge of theft grounds of ^^der the Glasgow PoHce Act, 6 and 7 Vict, cap. appeal. 99^ and convicted, without any communication being ^|]Opp''^=- made to the child's father or friends, or any oppor- tunity given of obtaining legal assistance, or ad- ducing evidence. Notwithstanding a clause (section 282) providing for appeal to Circuit, the proceed- ings were held to be so illegal and oppressive as to make suspension by the High Court competent. In Jamieson and others v. Mackay,^ a convic- tion obtained against young boys under the Gene- ral Police Acts, 13 and 14 Vict., cap. 33, and 19 and 20 Vict., cap. 103, in somewhat similar cir- cumstances, was quashed in respect of the oppres- sive nature of the proceedings. Lord Deas made the following remarks,^ which are instructive, as showing that an oppressive use may be made of procedure in itself regular and competent in some cases : — " There are here two grounds of sus- " pension — incompetency and oppression. I agree " that in certain circumstances there is no absolute " incompetency in proceeding summarily as was " here done. I think the statute gives the power " with a view to certain exigencies, but not with a " view to the power being exercised in all cases. " It is a power to dispense with the usual delibera- " tion and forms of procedure If the " dispensing power, for as such I regard it, is acted '' on without its being necessary to act on it, great " care must be taken that there are no grounds for " suspecting injustice in the result, otherwise the '' proceedings may be set aside on the ground of " oppression." nli'delTa- ('^)' Such dcviatious, in point of form, from the tions in statutory enactments as the Court shall think took point of ^°"^ ' H. C, Feb. 27, 1858, 3 Irv. 29. •■ H. C, Nov. 24, 1862, 4 Irv. 246. 3 4 Irv. 250. APPEAL UNDER 1 VICT. CAP. 41. 251 place wilfully, or have prevented substantial justice Appeal from having been done. i "vict., This is an important and salutary limitation, and cap. 41.' one which has saved many a judgment where the "^^ proceedings have been irregular, but not productive f^p"ai.^ ° of injustice. (2)Ma- The following cases serve to illustrate the appli- virtions^in cation of this provision : — point of Section 3 of the Act enacts that causes are to °^'"' proceed upon summons or complaint in the form of schedule (A). In schedule (A) the pursuer is directed " to insert the origin of debt or ground of action." Where in an action of damages the origin of debt or the ground of action was not set forth, but the account produced bore to be for goods sold, an appeal was sus- tained on the ground that the true ground of action and the account were inconsistent, and that it was material that the ground of action should be stated.' On the other hand, where the summons did not state the grounds of action, but referred to them as contained in a statement annexed. Lord Deas dis- missed the appeal, holding that this informality, if such it was, had not prevented the appellant receiv- ing substantial justice.^ It is not per se a relevant ground of appeal that the summons simply refers to an account annexed. See Mowat v. Marline, H. C, 20th June 1856, 2 Irv. 435 ; and Aitken v. Learmonth, Stirling, 27th April 1855, 2 Irv. 156, to the same effect. Section 11 of the Act provides that where a defender intends to plead any counter account or claim, he must serve a copy on the pursuer, " other- " wise the same shall not be heard or allowed to be " pleaded, except with the pursuer's consent." In Weatherstone v. Gourlay,^ the SheriflF gave effect to '■ Glasgow and South- Western Railway Company v. Wilson, Glasgow, May 5, 1855, 2 Irv. 162. That case was regarded as not a sound decision in Sturrock v. Anton, 5 Irv. 236, by Lords Neaves and Ardmillan, on the ground that the Judges somehow went into the merits of the case, which was not competent. " Gra/nge v. Mackenzie, Glasgow, Sept. 28, 1866, 5 Irv. 324. s Jedburgh, April 13, 1860, 3 Irv. 589. 252 THE CIRCUIT COURT AS A COURT OF REVIEW. ^.™f ^ ^ counter claim whieh was admitted, but in regard to UNDER i-i -iiT 1A 1- 1 Vict., which no notice had been served. An appeal agamst CAP. 41. ^]^^g jufjgment was dismissed by Lord Ardmillan, o/appeai. ^^^ held that justice had been done, and that the (2) Mate- deviation from the statute was not material. vution ■ "^^^ Sheriff, in an action for the amount of busi- poiutof ness accounts, decerned against the defender for form. ^jjg amount "subject to taxation" on 9th July. The Auditor's report, which was dated 15th July, was neither seen nor approved of by the Sheriff, but the pursuer in the action, who was Sheriff-clerk- depute, issued an extract decree in his own favour for the taxed amount and expenses, dated 9th July. In an appeal it was pleaded, founding on section 13 of the Act, that the remit should have preceded the Sheriff's judgment, and th^t he was bound to find in specific terms the precise amount of the sum decerned for (Schedule No. 7). It was held that there had been a wilful departure from the pro- visions of the Act ; the appeal was sustained, and the Court remitted to the Sheriff " to proceed with " the case in accordance with the statute."'' Without multiplying instances, the following cases may be consulted in which deviations were held not to be material : — Flowerdew v. Reid, Perth, 30th Sep. 1852, 1 Irv. 91 ; Sinclair v. Rom, Glasgow, 25th April 1863, 4 Irv. 390 ; Scottish North-Eastern Railway Company V. Cargill, Dundee, 13th Sep. 1866, 5 Irv. 298; Bissell and M'Caig v. Buchanan, Glasgow, 4th May 1871, 2 Couper, 43. Some statutory directions as to procedure are of so specific and peremptory a nature that neglect of or deviation from them is sufficient to render appeal competent under such a clause, without inquiring whether the neglect or deviation complained of was wilful or productive of substantial injustice. In Mahon v. Morton, already noted, where there 1 Guthrie v. M' William. Ayr, Sept. 23, 1856, 2 Irv. 476. See also M'Al- lister V. Cowcm, 1 Couper, 302, an appeal under 31 and 32 Vict., cap. 123. APPEAL UNDER 1 VICT. CAP. 41. 253 was a limited right of appeal (13 and 14 Vict., cap. appeal 33, sec. 369), in the same terms as those in the i^ict. Small Debt Act, a refusal by the Magistrate of a cap. 4i. motion for delay was not noted by the Clerk, (Grounds 1 • •!! T Til- 1 11™ appeal. although it was specially directed that this should ^g) Mate- be done by section 6 of certain rules and regula- rial devia- tions framed under the authority of section 349 of ^^"tof the Act, and having the force of statutory enact- form ments. The Lord Justice-Clerk (Hope) said,^ " A " proved and notorious corrupt object on the part " of the Magistrate, is not what is to be prevented " or guarded against by these regulations. I can " understand that where no form whatever has " been prescribed for conducting such trials, it may " be necessary to aver wilful error. But where forms " have been prescribed by authority, they must " be observed in order to validate the conviction." And Lord Cowan said,^ " Our power to judge " whether the grounds of refusal were justifiable, or " whether justice did not require delay to be " granted, is not to be interfered with by the Clerk's " non-compliance with this regulation. The object " of it was to prevent the necessity of that proof " we have had to order and now before us." (3), Incompetency, including defect of jurisdiction (3) inoom- of the Sheriff. P^^^'^^y- More difficulty is found in defining the precise limits of this ground of appeal than those of the grounds already mentioned. Where the Sheriff entertains a case plainly beyond his jurisdiction, or one which on the face of the proceedings is incompetent, there is no difficulty. But where he has to decide mixed questions of fact and law, or questions of law which partly depend upon the facts of the case, it is not easy to draw the line between those decisions which involve such incompetency as to admit of appeal, and those which are truly on the merits, or deal with such questions of law as it was the inten- ^ 2 Irv. 391. 2 2 Irv. 393. 254 THE CIRCUIT COURT AS A COURT OF REVIEW. Appeal tion of the Statute should be left to the final de- 1 Vict, cislon of the Sheriff. CAP. 41. Under this head is included not only defect of S^ppfai jurisdiction but want of jurisdiction, of whatever (3) incom- kiud.^ In other words it is competent to appeal peteucy. on the ground of any excess of jurisdiction on the part of the Sheriff. Excess of jurisdiction, again, may be held to include not only the case of the Sheriff exceeding his powers but also the converse, namely, his refusing to exercise the jurisdiction which he possesses. As Lord Justice-Clerk Inglis said in the case of Dick,^ " The Sheriff in holding " that there is bad service, was in effect holding " that there was no ground for his own jurisdiction " as Sheriff. In that respect I think the Sheriff " has gone wrong in a matter which does not come " here to be set right in a process of review, but " which really amounts to an excess of jurisdiction, " because it is a great constitutional maxim, ' Judex " ' tenetur impertiri judicium suum.' And whenever " that rule is not followed by a Judge refusing to " exercise his jurisdiction, he is committing an " excess of power which is the same in kind as if " he were exercising jurisdiction over a subject- " matter or territory over which he had no " jurisdiction." This view is confirmed by the consideration that it is the presumed intention of the Legislature in such clauses to enumerate all competent grounds of appeal, and among them a refusal to exercise jurisdiction, which is quite as serious an obstacle to substantial justice being done as an excess of juris- diction in the ordinary sense of the term. If not included under this head such cases must fall under the head of oppression. The result of any other view would be either to give no right of review in such cases, or to leave them to be dealt with by the High Court under its ordinary powers; thus 1 Graham v. Machay, Feb. 25, 1845, 7 D. 515, and 6 Bell's App. 214. = 3 Irv. 620. APPEAL UNDER 1 VICT. CAP. 41. 255 making two Courts of review, which is against the appeal scope of the section. i v*!™. The following cases show some of the difficulties °^^' ^i- connected with this ground of appeal : — S'^r^eai In BucJianan v. Glasgow Corporation Water (3) incom- Worhs Commissioners} it was pleaded before theP^*^""?- Sheriff by the defender that the account sued on was prescribed ; the Sheriff repelled the plea. The defender having appealed, partly on the ground that the Sheriff" had erred in repelling the plea of prescription, the respondent objected that this was not a competent ground of appeal. Lord Ardmillan sustained the objection, and said, " The plea of " prescription was disposed of by the Sheriff". " He may have done so erroneously — I don't say " he did — but I cannot review his judgment upon " it." On the other hand, in a case where the plea of prescription had also been repelled by the Sheriff", an appeal was sustained in respect that ; (1) the account sued on had ex facie undergone the trien- nial prescription ; (2) it was admitted that, no writ was produced ; (3) the oath of the debtor was not taken ; and (4) there was no express admission of resting-owing. Lord Neaves gave the following reasons for sustaining the appeal.^ " The ground " upon which I proceed is not that on which the " appellant mainly rested his case, viz., malice and " oppression, of which I see no trace, but another " of the statutory grounds of review, viz., incom- " potency. This account has, on the face of it, " undergone the triennial prescription ; and so, " under an Act of Parliament, the only way in " which it could be proved was by the debtor's " writ or oath. It is conceded that there was " neither writ nor oath here, and it is further " evident that there was no express admission of " the claim as resting-owing." In commenting on 1 Glasgow, Sept. 19, 1862, 4 Irv. 225. ' Murray v. Mackenzie, Inverness, April 21, 1869, 1 Conper, 247. 256 THE CIRCUIT COURT AS A COURT OF REVIEW. Appeal the case of Buchanan he said,' " That case is not 1 V[CT. " quite analogous. The question there was as to CAP. 41. " the continuity of the account sued for.^ If the Grounds T\ ^^'^' ^ suspension in the Bill Chamber was enter- vicT.^ c. tained where it was objected that the Sheriff-clerk- ■*!• depute signed in his oflBcial capacity a small debt summons which was raised at his instance as an individual. Lord Benholme dissented. In Shiell v. Mossman, Nov. 7, 1871, 10 Macph. 58, the competency of a suspension in the Bill Chamber was sustained, in respect of irregular pro- ceedings following upon a small debt, decree. SECTION III. Appeals to the Circtjit Court of Justiciaet under OTHER Acts of Parliament. In many penal statutes there is given a right of appeal to the next Circuit Court of Justiciary for the district ; but as the mode of appeal thus given is almost invariably either that provided by the Jurisdictions Act, incorporated at length or by reference, or modified, as in the Small Debt Act, it is unnecessary here to do more than refer to the two preceding sections of this chapter. At the same time, it must be remarked that sometimes procedure is enjoined which is not identical with that by the Jurisdictions Act, on the one hand, or the Small Debt Act on the other ; and this makes it indispensable to examine each statute carefully.^ The following may be taken as examples of such appeal clauses. Section 4 of 34 and 35 Vict, cap. 32 (Criminal Law Amendment Act), runs thus : — " In Scotland it shall be competent to any person to appeal against any order or conTiction tinder this Act to the next Circuit " See 25 and 26 Vict , cap. 35, sec. 33. APPEALS UNDER OTHER ACTS OF PARLIAMENT. 261 Court of Justiciary, or where there are no Circuit Courts to the Appeals High Court of Justiciary at Edinburgh, in the manner prescribed under by, and under the rules, limitations, conditions, and restrictions s™^m™j.s contained in the Act passed in the twentieth year of the reign of His Majesty King George the Second, chapter forty-three, in re- gard to appeals to Circuit Courts ia matters criminal, as the same may be altered or amended by any Acts of Parliament for the time being in force.^ " All offences under this Act shall be prosecuted by the Procu- rator-Fiscal of the County." Here the provisions of the Jurisdictions Act are incorporated by reference per aversionem. The appeal clauses of the Glasgow Police Act, 1866, 29 and 30 Vict., cap. cclxxiii, are as follows : — Sec. 131. — " No warrant granted by the Magistrate or cita- tion made in pursuance of the provisions of this Act, and no charge or complaint, and no proceeding or trial before the Magis- trate, and no order or sentence of the Magistrate thereon, or the extract thereof, .shall' be quashed or vacated for any misnomer or informality, or be subject to suspension, reduction, advocation, or appeal, or to any other form of review or stay of execution, unless in manner and on some one or more of the grounds hereinafter mentioned." Sec. 132.—" Any person who feels aggrieved by any order or sentence of the Magistrate may, within fourteen days after its date, appeal to the Court of Justiciary at the next Circuit Court to be held at Glasgow, in the manner and under the rules, limitations, and conditions contained in an Act passed in the twentieth year of the reign of His Majesty King George the Second, chapter forty-three, 'for taking away and abolishing Heritable Jurisdictions in Scotland,' on the ground of corruption, malice, or oppression on the part of the Magistrate, wilful deviations in point of form from the statutory enactments, incompetency, or defect of jurisdiction, but on no other ground." Sec. 133. — " Such appeal shall not operate as a suspension or stay of execution of any order or sentence of the Magistrate re- quiring the payment of any penalty, unless on consignment thereof in the hands of the Treasurer, nor of any order or sentence of the Magistrate awarding imprisonment, unless on sufficient caution to the satisfaction of the Magistrate for the appearance of the person appealing at such tiiiie and place as hfe shall direct, and that without prejudice, in either case, to the caution or security 1 For instance, sec. 11 of the Summary Prosecutions Appeals Act, 1875, makes an alteration as to the time of taking an appeal in certain cases. 262 THE CIKCUIT COUKT AS A COURT OF REVIEW. Appeals required by the said Act for taking away and abolishing Heritable UNDER Jurisdictions in Scotland." OTHER Statutes. The last example which need be given is from 25 and 26 Vict., cap. 35 (The Public Houses (Scotland) Act Amendment Act), the appeal clauses of which differ slightly from those last quoted, and do not incorporate by reference the provisions of 20 Geo. II., cap. 43 : — Sec. 33. — " It shall be competent to any person conceiving him- self aggrieved by any warrant, sentence, order, decree, judgment, or decision, made or given by any Sheriff, Justice, or Justices of the Peace, or Magistrate, in any cause, prosecution, or complaint, raised under the authority of the recited Acts, or of this Act, for breach of certificate, or for trafficking in spirits or other excisable liquors without a certificate, to bring the case by appeal before the next Circuit Court of Justiciary, or where there are no Circuit Courts before the High Court of Justiciary at Edinburgh, in the manner, and by and under the rules, limitations, conditions, and restrictions which shall from time to time be prescribed by the said High Court of Justiciary : Provided always that such appeal shall be competent only when founded on the ground of corruption, or malice and oppression on the part of the Sheriff, Justice or Justices of the Peace, or Magistrate, as the case maybe, or on such deviations in point of form from the statutory enactments as the Court shall think have prevented substantial justice from having been done : Provided also that such appeals shall be heard and determined in open Court, and that it shall be competent to the Court to correct such deviation iu point of form : Provided further, that notice in writing of such appeal shall be given to the opposite party, and to the Clerk of the Court pronouncing such warrant, sentence, order, decree, judgment, or decision, within eight days of the date thereof, and that no appeal shall be received or enter- tained unless the party appealing shall, along with his appeal, deposit with the Clerk of the Circuit Court or of the High Court of Justiciary, as the case may be, a certificate under the hand of the Sheriff-clerk, Town Clerk, or Clerk of the Peace, or Clerk to the Magistrates, as the case may be, that he has made consignation in the hands of such clerk of the whole sum and expenses, if any, decerned for by the warrant, sentence, order, decree, judgment, or decision appealed from, and unless he shall have found sufiioient security for the whole expenses which may be incurred and found due under the appeal : Provided always that nothing herein con- tained shall be held to exclude or interfere with the right of appeal Lo Quarter Sessions, which at present exists, provided the appel- lant shall forthwith deposit with the Clerk of the Peace the amount of penalty and costs awarded against him." APPEALS UNDER OTHER ACTS OF PARLIAMENT. 263 Sec. 34. — " No wairant, sentence, order, decree, judgment or Appeals decision made or given by any Quartei; Sessions, Sheriff, Justice under or Justices of the Peace, or Magistrate, Ln any cause, prosecution, ^^^^ or complaint, or in any other matter under the authority of the said recited Acts, or of this Act, shall be subject to reduction, advocation, suspension, or appeal, or any other form of review, or stay of execution, on any ground, or for any reason whatever, other than by this Act provided." The following statutes are a few out of many containing such appeal clauses : — 13 Geo. III., cap. 54, sees. 11-13 — Game Act. 5 and 6 Will. IV., cap. 63, sec. 38— Weights and Measures Act. 20 and 21 Vict., cap. 148, sec. 96— Tweed Fisheries Act. 25 and 26 Vict., cap. 97, sec. 28 — Salmon Fisheries (Scotland) Act. 25 aiid 26 Vict., cap. 101, sec. 430— Police Improvement Act.^ The right of appeal- to the Circuit Court is usually coupled with a declaration that no other mode of review shall be competent. As to how far such clauses exclude the jurisdiction of the High Court of Justiciary, see Chapter VI. infra. ' Quoted p. 47, supra. CHAPTER V. Application by Petition to the High Court of Justiciary in Extraordinary Circumstances. In addition to its powers of review, the High Court of Justiciary, as the supreme Court in criminal matters, has, in respect of its nobile officium, the power of interfering in extraordinary circumstances, for the purpose of preventing injustice or oppres- sion, although there may not be any judgment, conviction, or warrant brought under review. Numerous instances of the exercise of this power are to be found in the Books and in the Records of the Court of Justiciary ; but the limits of this work will not admit of an examination of the older cases. The following comparatively recent cases will serve as illustrations : — Petition for recal of sentence of outlawry and relief from penalty in bond of caution. — In the case of Marion Lindsay or Webster, and Others, H. C, Nov. 29, 1858, 3 Irv. 285, a petition was presented by the widow and cautioner of one Alexander Webster, against whom sentence of outlawry had been pronounced at the Circuit Court of Glasgow in April 1856, praying that the said sentence should be recalled, and that the cautioner should be relieved from the penalty in his bond, on the ground that Webster was dead at the time when sentence was pronounced. The petition was not opposed by the Crown, and the Court pronounced the following interlocutor : — " 29;A November 1858. — The Lords Commissioners of Jus- ticiary having heard counsel for the petitioners, and considered the petition and productions made therewith, together with the PETITION TO HIGH COURT OF JUSTICIARY. 265 letter of the Crown Agent, also produced, stating that no opposi- Applica- tion would be made on the part of the Lord Advocate, Recal the tion by sentence of outlawry mentioned in the petition, pronounced against I'i^tition the deceased Alexander Webster on the 29th day of AprU 1856 : Hia™ Declare the moveable goods and gear of the said deceased freed Couht of from the escheat of the Crown, and free and relieve the petitioner, Justi- Thomas Barclay, from the penalty contained in the bond granted ''"*''^- by him for the appearance of the said Alexander Webster." Again, in the case of Michael Hinchy, H. C, July 18 and 20, 1864, 4 Irv. 559, a petition was presented by Michael Hinchy for recal of a sen- tence of outlawry pronounced against him at Perth Circuit Court in May 1864. The petitioner, who had again been apprehended, alleged that he had failed to appear at the Circuit Court in consequence of iUness, and that, in order to enable him to pre- pare for his defence, it was necessary that the sentence of fugitation and outlawry should be re- called. The Crown opposed this application on the ground that the statements in the petition were untrue, and that it was believed that, if re- poned, the petitioner would offer bail and abscond. Notwithstanding the opposition of the Crown, the Court, "in the whole circumstances of the " case," reponed the petitioner against the sentence of outlawry. Although sentence of fugitation or outlawry is not competent in inferior Courts, the above pre- cedents may be of use in cases in which bonds of caution have been forfeited in similar circumstances. In such cases, either the accused or his cautioner may apply to the Court by petition. Petition for interim liberation pending appeal. — On 30th May 1867 John Pirrie was convicted before the Justices of the Peace in Petty Sessions, upon a complaint which charged a contravention of 13 and 14 Vict., cap. 92 (Prevention of Cruelty to Animals (Scotland) Act), and sentenced to six weeks imprison- ment. Pirrie appealed against this -sentence to the next Quarter Sessions for the County of Edinburgh, and, pending appeal, presented a petition to the 266 PETITION TO HIGH COURT OF JUSTICIARY Applica- tion BY Petition TO THE High ooitrt of Justi- ciary. High Court of Justiciary, praying for interim libe- ration. The Court, notwithstanding a doubt as to the competency of the petitioner's appeal to Quarter Sessions, granted the prayer of the petition; under certain reservations inserted in the interlocutor. The Lord-Justice Clerk (Inglis) said : ^ "1 have ' great difficulty as to the competency of the appli- ' cation. Perhaps it vrill be sufficient for the 'justice of the case to find that di, prima facie case ' has been made out. Suppose the appeal is found ' competent by the Justices in Quarter Sessions, ' and the judgment of the Justices in Petty Ses- ' sions is reversed, the petitioner would have ' served out his sentence, which would ultimately ' have been found illegal. Although the procedure ' in the petition may not be quite regular, I think ' that the necessity of the case may warrant the ' Court in relieving the petitioner by granting ' interim liberation, the question as to the com- ' petency of the appeal being always reserved to ' be discussed when the case comes before the ' Quarter Sessions." The Court pronounced the following inter- locutor : — " The Lord Justice -Clerk and Lords Commissioners of Jus- ticiary having considered this petition, and heard counsel hinc inde, the Procurator-Fiscal not opposing, and without prejudice to any objection that may be stated to the competency of the appeal to the Quarter Sessions against the judgment of the Justices, and in the circumstances set forth in the application. Grant warrant for the interim liberation of the petitioner on his finding caution in the Justice of Peace Court Books of Edinburgh to the extent of £10 sterling, that he shall return to prison, and undergo the unexpired period of the imprisonment under the sentence, in the event of his appeal to the Quarter Sessions being dismissed or disallowed." ^ In this case the application for liberation was ■considered and granted by a quorum of the Court. But it is believed that there have been cases in 1 Pirria v. Lixt, = Ibul., p. 4S6. H. C, June 8, 1867, S Irv. 433. IN EXTRAORDINARY CIRCUMSTANCES. 267 which interim liberation pending appeal has been appmca- granted by a single Judge. It may have beenp^^lMON observed that, while under sec. 36 of 20 Geo. IV., ™ ™e cap. 43, the finding of caution is a necessary condi- oodbt of tion of a well taken appeal, nothing is said as to '^^^^^^■ liberation of the prisoner pending appeal. In practice, the appellant, if in prison, is liberated on finding caution ; but cases have occurred under statutes containing appeal clauses similar to those in 20 Geo. II., cap. 43, in which the Magistrate has refused to grant interim liberation, doubting his power to do so in the absence of express statutory authority. It is thought that where there is a right of appeal subject to finding caution or making con- signation, there must be an implied right to obtain interim liberation in the absence of statutory di- rection on the matter.^ And if so, it would entail hardship on an appellant to postpone consideration of his petition until a quorum of the Court could be called together.. Before this could be done the term of imprisonment might have expired. But a good deal will depend upon the circumstances of the case. If the hardship complained of arises simply from the inferior Judge declining to exercise powers which he undoubtedly possesses, a single Judge might competently interfere ; while it might be otherwise if the difficulty arose from want of statutory direction or power, which really pre- vented the inferior Judge from granting the redress sought. Petition for Liberation pending Trial. — In the case of William Taylor Keith, H. C., June 4, 1875, 3 Couper, 113, an appeal to the nobile offlcium of the Court was made, which raised the important question whether the Court have the power of ' See sec. 3, subdivisions 1 and 6, of The Summary Prosecutions Appeals Act, 1875, and notes 8 and 15 to sec. .3. The terms of these subdivisions raise a curious question as to whether the appellant is entitled to imme- diale liberation on caution or consignation, and if not, whether it is compe- tent, to apply to the High Court for hilnriin liberation before the case is lodged in the superior Court, 268 PETITION TO HIGH COURT OF JUSTICIARY applica- authorising the liberation of a prisoner on account Petitwn of delay in bringing him to trial, when he is unable TO THE through poverty to force on his trial, under the Act Court OP 1701, Cap. 6. The circumstances "wcrc thcse : — The ciARY petitioner was committed for trial on 29th Septem- ber 1874 ; he was indicted for the Glasgow Winter Circuit of that year, but an objection to the rele- vancy of one of the charges having been sustained, the diet was deserted pro loco et tempore. He was again indicted for the Spring Circuit held in April 1875, but the diet was not called, although counsel for the panel moved that this should be done ; the Court declining to interfere with the discretion of the public prosecutor. Being still in custody, and no new libel having been raised, the petitioner, on 17th May, presented a petition for liberation to the High Court of Justiciary, setting forth the delay which had occurred, and stating that on 29th January 1875 he had made the Crown authorities aware that he had caused letters of intimation to be expede under the Act 1701, cap. 6 ; but that his poverty prevented him getting delivery of the said letters, so as to make formal intimation to the Lord Advocate, unless the Crown relieved him of the usual revenue duty of 17s. 6d. exigible thereon, and that his request had been refused. It was argued for the petitioner that " the Crown " authorities were made aware that he had obtained " the usual letters of intimation on 29th January " 1875, and that he was unable to pay either the " government duty or the expense of formal inti- " mation by a messenger-at-arms. They ought " therefore either to have relieved him of the duty, " or to have agreed to hold him in the same situa- " tion as if the letters had been formally intimated. " This of itself is suflRcient to entitle the petitioner " to have the warrant of commitment of 23d " December 1874 recalled, and liberation granted " under his present petition. The Court were in " use to grant liberation on cause shown before the IN EXTRAORDINARY CIRCUMSTANCES. 269 " passing of the Act 1701 (Hume, vol: ii., pp. 265, apphoa- " 6, 7). They have still that power, and the pre- I'ZtZ^ " sent, under all the circumstances, is a case of to the "oppression in which the power ought to beco™TOF " exercised." J™"- For the Crown an explanation was given of the °^^''' causes that led to delay in bringing the peti- tioner to trial ; and further, it was contended that the Act 1701, cap. 6, alone regulates the discharg- ing of warrants of apprehension and commitment, and that the Court could not hold that there was here intimation to the Lord Advocate under that Act. It was stated, however, by the Solicitor- General that a new indictment would forthwith be served on the petitioner. In respect of this assurance the prayer of the petition was refused ; but the Court expressed an opinion that where there was no sufficient cause for delay in bringing a prisoner to trial, they had the power, and that it would be their duty, in the absence of sufficient explanation on the part of the prosecutor, to grant liberation pending, but not as a bar to, trial. Petition to compel Public Prosecutor to grant his Concourse to a Private Prosecution at the Petitioner's instance; or otherwise, should he refuse, to grant leave to the Petitioner to prosecute at his own instance without the Public Prosecutor's concurrence. — This interesting question was considered by the High Court of Justiciary in the case of Angus Mackin- tosh, H. C, Nov. 4, 1873, 2 Couper, 367. The Court were of opinion that in that particular case the prayer of the petition should be refused ; but the majority expressed an opinion that they had the power, should a suitable occasion arise, to grant the relief sought. Lord Ardmillan said,^ " I do not entertain any " doubt, and I rather think your Lordships are of " the same opinion, that if a case were made out ' 2 Couper, 374. CIARV. 270 PETITION TO HIGH COURT OF JUSTICIARY applica- " showing that the Lord Advocate ought to have TION BY • Petitiok " given his concourse, and was capriciously, wrong- HiG™ " fii%^ or oppressively withholding it, this Court couKT OP " could interpose. Such a case may be supposed Jdsti- u jj^ argument. It is scarcely conceivable in fact. ^ " But if it should occur it would be a wrong, and " it would not be without remedy. I think that " we have the authority of Sir George Mackenzie, " and the recent authority of certain very valuable " and weighty observations made by the Judges in " the attempted prosecution of Hare after Burke's " trial, to sustain the proposition that we could " give redress by permitting, in the particular circum- " stances of such an exceptional case, the prosecu- " tion to proceed at the instance of the private " prosecutor without the concourse of Her Majesty's " advocate. But it must be obvious to all that " nothing but very grave and extraordinary circum- " stances could possibly warrant the Court to take " such a proceeding." The Lord Justice-Clerk said ' — " It is not, I think, " in the power of the public prosecutor at all times " both to refuse himself to prosecute, and refuse his " concourse to the private prosecutor capriciously, " oppressively, or unreasonably, and so prevent all " prosecution at the instance of a private party. " There is a remedy should such a case occur, " although fortunately for this country it has very " rarely been required. ... I incline to the opinion, " as I said formerly, that we have power either to " permit the private prosecutor, on good cause " shown, to proceed without concom-se, or to ordain " the public prosecutor to grant his concourse. I " think either course competent, and I find that in " his second volume, p. 126, Baron Hume lays " down the law substantially in that way. ... If, " then, the petitioner here had shown the Court " good ground upon which to exercise this power, " or to lead us to suppose that the Lord Advocate ' 2 Couper, 378. IN EXTRAORDINARY CIRCUMSTANCES. 271 " had acted otherwise than with reasonable discre- " tion in the special circumstances of this case, we " could have taken whichever step we considered " most proper." Lord N eaves ^ doubted the power of the Court to compel the Lord Advocate to concur, and also their power to grant criminal letters to a private party to prosecute without the Lord Advocate's concurrence. Such a case is not likely to occur often, but it serves to show the extent of the powers possessed by the High Court of Justiciary. 1 2 Couper, 375. CHAPTEE VI. On Objections to the Jurisdiction of the Coukt OF Justiciary, and on the Finality of Con- victions AND Judgments of inferior Courts. In civil causes the jurisdiction of the Court of Justiciary is limited by the statutes which confer it. On the other hand, in criminal matters the jurisdiction of the Court of Justiciary cannot, in one sense, be excluded. It can always afibrd redress against irregularities or abuse of statutory powers, notwithstanding the most express declaration that review shall not be competent. In a wider sense, the Court of Justiciary is said not to have jurisdiction, when review is entirely or partially excluded by the statute, and that either expressly, or by necessary implication ; although, perhaps, to speak correctly, it shotdd be said, not that juris- diction is excluded, but rather that convictions and judgments pronounced under such statutes are made final, and suspension, advocation, or appeal incom- petent. On the head of want of jurisdiction, the follow- ing are the objections most frequently urged against the competency of processes of review : — 1. That the Jurisdiction quoad Review is civil. Previously to the passing of the Summary Pro- cedure Act, the only way in which to fix the Court of review, in the event of its not being specified by the special statute, was to ascertain whether the proceedings in question were of a criminal natm-e or not. This was often by no riieans an easy matter. In considering the 28th section of the Summary Procedure Act, some illus- trations have already been given of the perplexing JURISDICTION OF COURT OF JUSTICIARY. 273 questions which frequently arose previously to that Oejec- Act, in regard to the limits of civil and criminal 7dsMc- jurisdiction, in consequence of there being no de- tion, &c. cisive and accepted test, capable of being applied to [^ "^^^^ . all causes, by which to fix the Court of review. oi^dL*^*^ '^ Tests there were, but unfortunately too many ; and while many penal statutes contained provisions which tended to give the proceedings under them a criminal aspect, they had often just as many which could be plausibly appealed to in support of the contention that the jurisdiction was civil. One hackneyed subject of discussion was whether the subject-matter of the prosecution was malum in se or malum prohibitum; and if the latter, whether the nature of the procedure directed, and of the punishment which could competently be imposed, gave a criminal complexion to offences not in them- selves of a criminal nature. Some Judges solved the question by considering whether the proceed- ings were ad civilem effectum or in vindictam pub- licam. But one is disposed to sympathise with Lord Deas in the perplexity which he experienced in applying this test. In Blai7' v. Mitchell he said : ^ " Of one thing I am very clear, that the question " whether this is to be held a civil or a criminal " proceeding cannot be determined by any abstract " definition of a criminal. It has been suggested " that everything is a criminal offence which is " made punishable by statute, with a view to deter " others from committing the Hke offence. I " cannot concur in that view. It would make " criminal all those innumerable acts which are " declared in police statutes, local and general, " to be offences subjecting parties to penalties. " Many of these acts do not even require to be " committed by the party who is held to be the " offender, and against whom the complaint is " directed. . . . The question, "What is to be held " civil or criminal under any particular statute, can ' 4 In-. 551. * 274 OBJECTIONS TO THE JURISDICTION OF objeo- " only be solved by looking carefully at the words JusKMc- " of the statute itself and considering what the TioN, &c. " Legislature really intended. When I come to do thl^* is " ^^^ ^^ ^^^^ statute, I find the question very civiL " perplexing. There are many things prohibited " in the statute which it is dijBftcult to suppose the " Legislature could have intended to make criminal " offences. Take, for instance, the having in one's " possession foul or unseasonable salmon. It is " not necessary to constitute this offence that there " should be any guilty knowledge on the part of the " individual. It may be his misfortune, and not his " fault, that his fishmonger or his servants have " allowed foul salmon to be used at his table. " Nevertheless he may be subjected in the penalty. " But is he to be branded as guilty of a crime or " criminal offence 1 I am not prepared to come to " that conclusion. At the same time, I admit that " there is such perplexity in regard to the forms of " procedure directed by the Act, as to make it " almost impossible to form a satisfactory opinion, " whether the proceedings are meant to be civil or " criminal." The subject is well illustrated by some important discussions and decisions upon the question whether in certain statutory prosecutions the respondent was competent or compellable as a witness for or against himself — ^this depending upon whether the proceedings were criminal in the sense of the Evi- dence Act, 16 and 17 Vict., cap. 20, sec. 3. Cases held Perhaps the most exhaustive statement of the criminal, ^gg^g usually appHcd is to be found in Lord Ivory's opinion in Stevenson v. Scott, Jedburgh, September 8, 1854, 1 Irv. 603. The question in that case was whether in a prosecution under 11 Geo. IV., cap. 54 (The Tweed Fishery Act), it was competent to examine the accused party who tendered himself as a witness. It was objected by the prosecutor that it was incompetent to examine the accused in respect that the prosecution was a criminal proceeding in THE COURT OF JUSTICIARY, ETC. 275 the sense of the Evidence Act, 16 and 17 Vict., cap. objkc- 20, sec. 3. The Sheriff repelled the objection, andJZLTc the accused was examined as a witness, and there- twn, &c. after assoilzied. The Procurator-Fiscal appealed 11*'^!'^ ■ to the Circuit (jourt. oivU. It may be explained that the 51st sec. of the Tweed Fishery Act provides for the prosecution of offences, the recovery and application of penalties, and the imprisonment of offenders, failing payment or recovery. The following are its provisions as to imprisonment : — " And in case sufficient distress or distresses shall not be found, or such penalty or penalties and costs shall not be paid, then it shall be lawful for any such Magistrate or Magistrates, and he and they is and are hereby respectively authorisesd, empowered, and required, for the first ofience, to commit every such ofiender or offenders, to such gaol or house of correction as aforesaid, for any time not exceeding two months, or less than one month ; for the second offence, any time not exceeding four months, or less than two months ; and for the third and every other offence, for any time not exceeding six months, nor less than three months, or until such offender or offenders shall have paid such penalty or penalties, forfeiture or forfeitures, and all costs and charges attend- ing such proceedings as aforesaid, to be ascertained by such Magis- trate or Magistrates, or shall otherwise be discharged in due course of law." Lord Ivory held the prosecution to be a criminal proceeding within the fair meaning of 16 and 17 Vict., cap. 20, and in respect thereof found it was incompetent to receive the evidence of the accused as a witness in the cause, either for or against him- self In his opinion his Lordship gave six reasons for his judgment ; no apology is required for quot- ing some of them in full, as they have been fre- quently referred to with approval, as containing an exhaustive enumeration of the tests usually relied on as indicating that the proceedings were criminal. "I.i The proceeding itself is one undoubtedly not a(^ oimlern effectwm but in vindictmn puhliccmh, and its end and object not the constitution and enforcement of a mere debt, but conviction as for an offence and sentence in modvm, panm. It is true, as observed 1 1 Irv. 610. 276 OBJECTIONS TO THE JURISDICTION OF Oejec- for the respondent, that the offence lay in the commission more of TioNs TO a, malvrni prohibitwm than of a malum in se. But what the law TioN &c ' <^6clares to be an offence, there must, in genere, as implying a de- (1) That fis^ce and infringement of the law, be criminality in committing, the case is Accordingly, had the statutory punishment been imprisonment, or civil. a corporeal pain instead of a pecuniary penalty — ^itself, however, in certain cases, convertible into a limited imprisonment — ^there could have been no room for doubt. " II. The form of proceeding as directed by the statute, or, in other words, the machineiy for arriving at conviction and punish- ment, in like manner, savours throughout of criminal, and not of civil process. For example, the prosecution is to be at the instance of the public prosecutor or other corresponding official ; the tribunal alternatively the Court of the Sheriff or Justices of Peace, but both, as the context shows, in the capa The Statute was 6 and 7 Viot., cap. 68, see. 19. 284 OBJECTIONS TO THE JURISDICTION OF Objec- tions TO JUEISDIC- TION, &C. (2) That review is excluded. said to be almost universal. And first, it is hardly subject to any limitation with respect to the magnitude of the cause of complaint, and is open alike for the trial of the highest crimes and the more venial offences. How mean soever the injury, stUl, if it ainount to a crime, and be cognisable to the effect of awarding punishment for correction or example, and woujd be the subject of a proper criminal process in any of the inferior Courts, the accusation may competently be laid before the Lords of Justiciary. There is no rule of limitation here, as in civil matters, — nor woidd it be easy or desirable to contrive one, — for confining the trial of the less important cases in the first instance to the inferior Coui-ts ; and the accused cannot well complain that he is tried by an assize, before the highest and purest Judicature of the kingdom, instead of some inferior and less enlightened Judge, who might proceed per- haps without any such assistance." Again, at page 37 of the same volume he says, — " To the exception of proper maritime causes I have only to add those few offences whereof the trial has been committed to other Courts by the express appointment of the Legislature. This seems to be the case with the crime of fraudulent bankruptcy, which the Act 1696, cap. 6, remits to the cognisance of the Lords of Ses- sion ; and perhaps the same is true (though this is not so clear) as to that of wrongous imprisonment, which, by the Act 1701, c. 6, seems to be reserved for the same Judicature in those instances where the complaint is grounded on the new provisions of that valuable law, and concludes for the pecuniary amends there appointed for the party wronged. " But here I must observe generally that to authorise a con- struction so unfavourable to our supreme criminal Judicature, which has a natural pretension to take cognisance of all offences, either the statute must bear a precise declaration on the subject, or the matter and circumstances of the enactment must be such as plainly to warrant an inference to that effect ; as, for instance, if a statute create a new offence, and make special mention of certain Courts as competent to the trial, without alluding to or taking notice of any other. But with respect to any crime which is already known in the law, and is within the province of the Court of Justiciary, they are not despoUed of their jurisdiction, though this crime should be made the subject of additional and statutable provisions, in which notice is taken of other Judges as competent to dispense the law, and without any mention of the Court of Justiciary. The effect of such a law is only to bestow a jurisdic- tion on those Judges to which they could not otherwise have pre- tended, but cumulative always with that of the supreme Court, and subject to their review." And again, at page 38, — " I'urther still, iii the construction even of those statutes which THE COURT OF JUSTICIARY, ETC. 285 create new offences, and have relation only to matters of revenue, OsjEr- or tlie like, it will not readily, or on slight groiinds, or for doubt- ^ions to ful expressions, be presumed that the Legislature have had a pur- J^^i-''kcc- pose of vesting the execution of criminal justice in any other ,„> m. Court, to the exclusion of the supreme. Any ambiguous clause or review* is phrase will rather be construed in favour of this high tribunal, excluded, which, dejure and without the aid of statute, has a natural and inherent jurisdiction to try for crimes and offences of every sort as soon as the law has given them birth." i The law of England on the subject is thus stated by Lord Mansfield in Hex v. Robinson, 2 Burr. 803, and in the opinion of the Court in the case of Harris, 1791, 2 Leach, 551 : — "Where a statute " creates a new offence by prohibiting and making " unlawful anything which was lawful before, and " appoints a specific remedy against such new " offence by a particular sanction and a particular " mode of proceeding, that particular mode of pro- " ceeding, and no other, must be pursued;^ but " where the offence was antecedently punishable " by a common law proceeding, and the statute " prescribes a particular remedy by a summary " proceeding, either method may be pursued." Accordingly, in those cases in which the juris- where diction of the Court of Justiciary has been held to exprelsiy be excluded, there has been in the penal statute a excluded. clause expressly excluding review, or it has been inferred from its terms and provisions that review is excluded by necessary implication ; such exclu- sion being more readily inferred where the offence is of new creation. But such clauses do not pre- vent the interference of the supreme Court, if the proceedings complained of are not " under the " authority of the Act," either in respect of the prosecution not being competent under the Act, or of material deviations from its provisions. By the 14th section of 2 and 3 Will. IV., cap. 68 (The Day Trespass Act), it is provided that parties 1 Compare the cases of William Trotter, Jedburgh, Oct. 5, 1842, Bell's Notes to Hume, 74, and James Cooper, Glasgow, Sept. 19, 1842, 1 Broun, 389, with the case of Eohert Kowet, Ayr, April 27, 1843, 1 Broun, 540. ' Quoted in Bex v. Robinson as being the resolution in Castle's case. Cro. Jac. 1543. 286 OBJECTIONS TO THE JURISDICTrON OF tionTm ^gg'^i^v^d may appeal to the Quarter Sessions on JuRisuio- the observance of certain conditions therein speci- 02m!t' ^^^' ^^^ ^^ section 15 it is provided, "that no review^ia " conviction in pursuance of this Act, or judgment excluded. '< given ou appeal therefrom, shall be quashed for " want of form, or be removed hy advocation, suspen- " sion or reduction, into any superior Court of law." Here the exclusion of review is express ; and pro- vided the proceedings have been under the statute, the supreme Court cannot interfere. — Porter v. Stewart, H. C, March 22, 1858, 3 Irv. 57. But it will be otherwise if the proceedings have been outwith the statute, or if there has been a material deviation from its requirements. The Court of Justiciary, in such a case, will not be called upon to review the judgment of the inferior Judge, but to quash the proceedings as funditus illegal and null. Thus a conviction was quashed where a warrant was issued for the apprehension of the accused instead of a summons proceeding on sworn information as required by the Act : — Smith, H.C., July 22, 1848, Arkley, 508 ; see also Smellie v. Lockhart, H. C, June 1, 1844, 2 Broun, 194 ; Russel V. Lang, H. C, June 1, 1844, 2 Broun, 211 ; Russell V. Sprot avid Lang, H. C, Nov. 18, 1844, 2 Broun, 321 ; Simpson, Dec. 22, 1851, 1 Stuart, 239 ; and Earl ofKinnoully. Tod, H. C, Dec. 15, 1S59, 3 Irv. 501. By section 6 of 25 and 26 Vict., cap. 114 (Poach- ing Prevention Act, 1862), a right of appeal to Quarter Sessions is given, and by section 6 it is provided that " no conviction or order made under " this Act, or adjudication made on appeal there- " from, shall be quashed for want of form, or be " removed by certiorari or otherwise into any of Her " Majesty's Superior Courts of Record." In Ander- son V. Nicholson, Perth, April 22, 2 Couper, 225, it was held that review by the Court of Justiciary was excluded, or rather, that the judgment of the inferior Court was rendered final by these pro- THE COURT OF JUSTICIARY, ETC. 287 visions. Lord Cowan said,^ "I am of opinion thsitP^'^^- " this appeal is incompetent, and that in this Court juRismc- " we qannot review the decision of the Justices ''^°^' *"• " under an objection that it was contrary to evi- ieview^a " dence. There can be no doubt that the intention excluded. " of the Legislature in passing such a statute as the " ' Poaching Prevention Act ' was to give a power " of review ; but they limited the power, and accord- " ingly provided for an appeal to the Quarter " Sessions only. Some statutes contain express " clauses by which jurisdiction is conferred upon " the Circuit Court of Justiciary, in terms of which " the decisions of Judges in inferior Courts are " brought under review of that Court. But there " is here no such clause ; on the contrary, the " statute declares that there is to be no such review, " and therefore it is incompetent to go into the " merits of this case and argue that the evidence " adduced did not warrant a conviction. "^ To give one more instance, the Statute 9 Geo. ly., cap. 58 (Public Houses Act), sees. 25 and 26, contains similar provisions as to appeal which have been held to exclude review by the Court of Jus- ticiary and Court of Session. But it has been also held that the jurisdiction of those Courts, as the Supreme Courts in criminal and civil cases respec- tively, is not excluded by those clauses where the proceedings complained of are outwith the statute.^ By 25 and 26 Vict., cap. 35 (The Pubhc Houses Acts (Amendment) Act, 1862), sees. 33 and 34, power is given to appeal against the judgment of " the Justice or Justices " to the next Circuit Court of Justiciary, reserving the existing right of appeal to Quarter Sessions. In Purdie v. Mitchell, Glas- 1 2 Couper, 228. ^ The iaterlooutor pronounced was : — "Perth, 22d April 1872. — Having " heard counsel for the parties on the objection to the competency of the " appeal in respect of the statutory finality of the judgment complained of, " Sustain the objection and dismiss the appeal to this Court as incompetent : ' ' Find the respondents entitled to expenses : Modify the same to four " guineas, for whioh decern against the appellant." ' JM 'Donald, June 15, 1844, 6 D. 1161 ; Philips, Jan. 12, 1847, 9 D. 318. 288 OBJECTIONS TO THE JURISDICTION OF objec- gow, Oct. 6, 1863, 4 Irv. 447, it was held that where jnrasDio- ^ party appealed to Quarter Sessions against a con- TioN, &o. viction by the Justices in Petty Sessions, he could (2) That jjQ^ thereafter bring the iudgment of the Justices in review 13 these views with the decision in Grai/ v. M'Gill, Court. because if full effect were given to them, the Cir- cuit Court would possess a wider jurisdiction under statutes which allow appeal only on certain limited grounds, than where there is no such restriction. In practice the rules applied in all such cases are those laid down in Gray v. M'Gill, viz. that if the proceedings are outwith the statute and radically faulty, the High Court may interfere at once, even although the Court of appeal named in the Act might, on an appeal taken to it, entertain the same objections ; but that if the objection resolves itself into a matter of review (on which review is not ex- cluded), the High Court cannot entertain it, and it can be judged of only by the statutory Court of appeal. If it is a matter of review as to which appeal is not allowed, of coui^se the jurisdiction of all Courts of appeal is excluded. These rules are in accordance with the equity of the matter. Where the proceedings and deter- mination have truly been taken and pronounced under the authority of the statute, and under the safeguards of the procedure therein enjoined, and the matters complained of are merely matters call- ing for review, there is no great hardship, and there may be a positive benefit, in declaring that review shall be obtained only from a Court brought to the doors of the parties at certain fixed times. But it is otherwise where the proceedings have not the colour of law. There redress cannot be too speedy ; and it is not easily to be presumed that ' 1 Maoph. 805. The vitiation complained of was made after judgment. U 806 OBJECTIONS TO THE JURISDICTION OF Oejec- the inherent power of the supreme Court to inter- JraisDic- ^^^^ is excluded even although a cumulative power TioN, &c. of entertaining such objections may be given to the (3) That Covirt of appeal named in the statute. allowed" The foUowiug are some of the later cases : — In cerLi°n MansoTi V. Smith} which was also a case under the grounds, Small Debt Act, the jurisdiction of the Court of another *° Scssiou was Sustained, although the matter com- Coarfc. plained of occurred at the commencement of the cause. The three following cases occurred under the statute 25 and 26 Vict., cap. 35 (The Public Houses Acts (Amendment) Act, 1862), the appeal clauses of which are quoted, supra, p. 262. "Incompe- " tency " is not one of the grounds ' of appeal named. In Ross V. Stirling ^ a sentence of Justices of the Peace was suspended by the High Court in respect that expenses had been incompetently awarded to the prosecutor. Again, in Clarkson v. Muir,^ a conviction was quashed by the High Court in respect that whereas the amount of the penalty imposed in the sentence as at first written out was " two pounds ten shil- " lings," the word " three " was thereafter written over the word "two," and thus the sentence was vitiated in essentialibus. In Muckersie v. M'Dougnll * the High Court re- mitted to the Court of Quarter Sessions to recal an interlocutor dismissing an appeal from Petty Ses- sions, and to hear and determine the appeal accord- ing to the statute. See also Wright v. Deivar,^ in which, under re- servation of all questions as to the competency of the suspension, a proof was allowed to the sus- pender of certain specific averments of illegal and 1 9 Macph. 492. !> H. C, Oct. 22, 1869, 1 Couper, .S36, and supra, p. 105. ' H. C, July 19, 1871, 2 Couper, 125. ■* 3 Couper, 54, and supra, p. 294. ' 2 Couper, 505. THE COURT OF JUSTICIARY, ETC. 307 oppressive procedure in the conduct of a prosecution Oejec- under 25 and 26 Vict., cap. 101 (General Police J^^'^^'/J". (Scotland) Act, 1762).^ The suspender failed to won, &o. prove his averments, and therefore the question of (^iTtat competency was not decided.^ In allowing a proof aUowe" Lord Cowan said (p. 513), "On the other branch °°^y?^ " of the case I have some difficulty. Much of the grounds, " suspender's statement certainly relates to what ^^W^i' *" n 1 if"T 1 1 11 1 another " falls under the finality clause, and could not be Court. " entertained by the High Court, whatever com- " petency there might have been in the Circuit " Court, had an appeal been taken under this " statute, to entertain such grounds of complaint. " But there are certain allegations to the effect that " fundamental rules of all judicial procedure were " transgressed, which, if proved, may justify and " require the interference of this Court, and I " therefore concur in the course which your Lord- " ship proposes." The High Court will entertain a bill of suspen- sion, if otherwise competent, notwithstanding that an appeal to the Court specified in the statute has been taken and intimated. — De Belmont v. Lang^ Kirkpatrick\. Mackay,'^ and Muckersie v. M'Dougall} In the last named case suspension was held competent, and the judgment complained of was ordered to be recalled. In the first two suspension was refused as incompetent on the ground that, looking to the nature of the objections, the Circuit Court had exclusive jurisdiction; but it was not suggested in either case that, if otherwise com- petent, suspension would have been refused merely because an appeal had been taken, even although the Circuit Court might competently have enter- tained an appeal on the grounds stated. ' Sees. 430, 431, are quoted mpra, p. 47 ; the grounds of appeal are those allowed in the Small Debt Act. ^ For the argument on the question of competency, see 2 Couper, pp. 510, 511, 512. 3 2 Couper, 95. ■> 1 Couper, 436, note 1. ° 3 Couper, 54. 308 OBJECTIONS TO JURISDICTION, ETC. It is right that this should be so. An appeal must be taken at once if it is to be taken at all ; and the party aggrieved cannot afford to wait until it is seen whether the High Court will entertain his suspension or not. If suspension is refused as in- competent, an appeal previously taken may be pro- secuted before the next Circuit Court.^ But if the suspension is refused on the merits (as distinguished from the question of competency) the judgment is res judicata, and an appeal cannot thereafter be insisted in. ' Kirhpatrich v. Mackay, 1 Couper, 434. CHAPTEE VII. The Grounds of Eeview. It is now proposed, in conclusion, to give some illustrations of the various grounds on which it is competent to bring under review proceedings in criminal causes in inferior Courts. Many of these are to be found scattered through previous pages, and a few have been grouped under such general heads as "oppression," "incompetency," "wilful "deviations in point of form,"^ &c. The main object of the present Chapter is to group a few of these and similar cases under the successive heads or stages of a criminal prosecution or suit in an inferior Court — before trial, during trial, and after trial — ^to which they respectively belong. It will thus be seen that the power of the supreme Court to interfere and grant redress extends to every step in the process. To a superficial observer it may sometimes appear that proceedings are set aside on somewhat technical and insufficient grounds. It is not really so. It has been well said that " there is no shorthand way of adminis- " tering criminal justice." On the other hand, it is necessary in a large class of cases that the pro- ceedings should be summary, and the difficulty is to insure that they shall be summary, and yet not shorthand. This can only be effected by rigidly enforcing the appropriate rules of criminal procedure as existing at common law or laid down by special statute, as the case may be ; and this is the more necessary when review on the facts is excluded. As the Lord Justice-Clerk (Inglis) observed in Donaldson v. Buchan,^ " The circumstance that we ' Supra, p. 247, et seq. ' 4 Irv. p. 115. 310 THE GROUNDS OF REVIEW. jheisdic- " cannot review the merits of a judgment on the TioN. ii evidence makes it all the more necessary that all " the procedure preceding the taking of the evi- " dence by the Judge in the inferior Court should " be perfectly regular." Where the particulars of a case have been already given, it has been thought sufficient to re- fer back to the page at which it is dealt with. 1. Jurisdiction. Objections to the jurisdiction of an inferior Judge may be stated in respect either of the character of the crime charged, or of the locus of the alleged offence. If the Judge entertains a charge which he is not competent to try, — e.g., one of the pleas of the Crown, — or if he adjudicates upon an offence committed outwith his territory, the proceedings are fundamentally null, and will be set aside. If, again, a Judge refuses to exercise jurisdiction which he possesses, the supreme Court will ordain him to proceed with the case.^ Several cases falling under this head have been already examined, in connection with the question of exclusion of review, under the heads of " want," " defect," and " excess " of jurisdiction •,^ and to those passages special reference is made. In reference to the cases to be mentioned under this and following heads, it need scarcely be ob- served that the competency of an objection is not affected by want of success on its merits. In Dawson v. M'Lennan^ the 1st reason of sus- pension pleaded was, that the Sheriff had no juris- diction to try the offence of wicked, felonious, and fraudulent concealment of property by an undis- charged bankrupt, in respect that jurisdiction in 1 Dkh V. Oreat North of Scotland limhmy Cvmjxiiii/, Aberdeen. Oct. 8, 1801), 3 Irv. 016, mpra, p. 254. 2 Supra, p. 254. 3 H. C, Apri] 2, 186."!, 4 Irv. .S5T. THE GEOUNDS OF REVIEW. 311 such cases was confined to the Courts of Session juekdic- and Justiciary. This plea was repelled. ^^°^- In Lewis v. Blair^ it was unsuccessfully pleaded by the suspender that the Sheriff had no jurisdic- tion, on the ground that the offence charged was said to have been committed by a foreign sailor on board a foreign vessel, although within the Sheriff's territory. See also Edward v. The Inverness and Aberdeen Junction Railway Company, Aberdeen, April 24, 1862, 4 Irv. 185 ; and M'Crone v. Sawers, Feb. 10, 1835, 13 S. 443. 2. Instance. At common law a prosecution for a criminal oflFence may proceed either at the instance of the pubHc prosecutor or of a private party, being the party injured or having the requisite interest, with the concurrence of the public prosecutor.^ If the private party has not sufficient interest, ^ — if, e.g., in a prosecution for the crime of theft the articles said to have been stolen do not belong to him, or were not in his lawful possession, — ^lie is not entitled to prosecute, even with the Fiscal's concurrence. — Mitchell v. Scott and Mackay, H. C, June 24, 1847, Arkley, 315. Some statutes authorise criminal or quasi-crimi- nal proceedings at the instance of the injured party without the concourse of the Fiscal. For instance, 4 Geo. IV., cap. 34 (Master and Servant Act) ; BlacMvood\. Finnie, H. C, June 1, 1844, 2 Broun, 206, and White v. Watson, Pellet and Compam/, H. C, Nov. 21, 1836, 1 Swin. 344. And 2 and '3 Will. IV., cap. 68 (Day Trespass Act) ; Russell v. Colquhoun, H. C, Nov. 24, 1845, 2 Broun, 572. Under other statutes penalties may be sued for by any one as common informer without the con- course of the Fiscal {Hamilton v. Girt an, H. C, June 15, 1867,- 5 Irv. 439), and without any special ' H. C, Feb. 25, 1858, 'A Irv. 16. = Humo, ii. 125; Alison, ii. 111. 312 THE GROUNDS OF KEVIEW. Instance, interest being averred {Hanvy v. Orr and Stirrat, Ayr, Sept. 16, 1869, 1 Couper, 334). See also Kennedy v. Cadenhead, H. C, Nov. 25, 5 Irv. 539. On the other hand, it was held in Herbert v. The Duke of Roxburgh,^ that a private party is not entitled to prosecute under 9 Geo. IV., cap. 69 (the Night Poaching Act), even with the Procura- tor-Fiscal's concourse, unless he sets forth a suffi- cient right or interest to do so. In M'Kelvie v. Barr, H. C, Dec. 3, 1860, 3 Irv. 631, a sentence, pronounced in a prosecution under 17 and 18 Vict., cap. 104 (Merchant Shipping Act, 1854), was suspended in respect that the instance was defective, being that of a private party without tlie concurrence of the Procurator-Fiscal. Section 531 of the statute expressly directs that all prose- cutions of a criminal nature shall be at the instance of the Procurator-Fiscal, or of the party aggrieved, with his concurrence. On this subject see Procurator-Fiscal of Edin- burgh v.- Phillips, Feb. 24, 1820, F. C. ; Ward v. Young, H. C, May 19, 1847, Arkley, 272 • Ander- son and Holms v. Cooper, H. C, March 7, 1868, 1 Couper, 18; and Angus Mackintosh, H.C., Nov. 4, 1872, 2 Couper, 367. As to the effect of the Summary Procedure Act, 1864, on the instance in statutory prosecutions, see section 4 of the Act, note 4, supra, p. 73, and section 28, note 5, supra, p. 110. 3. Arrest. "At common law it is competent to arrest an offender taken in the act without a warrant ;2 and the same course has been held competent when the accused parties were apprehended in the act of committing an offence against a statute (6 Geo. IV., ' H. C, Dec. -26, 1855, 2 Irv. 34fi. The Court did not find it necessary to decide whether a private party is entitled to prosecute under that Ai:t, even if he has an interest and the concouise of the Fiscal. ' Hume, ii. 75, 7C ; Alison, ii. IKi, ct acq. THE GROUNDS OF REVIEW. 313 cap. 129, Combination Act) which provided that war- abrest. rant to apprehend should be preceded by the oath of one or more credible persons. — -M' Vie and Linch v. Dykes, H. C, May 28, 1856, 2Irv. 429, 1st objection. But where some time has elapsed since the com- mission of the alleged offence, it is not safe to apprehend without a warrant, especially if the accused is law-abiding. In Jameson v. Pilmer, H. C, June 2, 1849, J. Shaw, 238, a charge was suspended mainly on the ground that the sus- pender, who was not said to be about to escape, had been arrested without a warrant. Where a prosecution is raised under a statute which directs that warrants of apprehension or citation shall only be granted on signed petition, or on oath of the party or of a credible witness, the requirements of the statute must be closely fol- lowed. By section 11 of 2 and 3 Will. IV., cap. 68 (Day Trespass Act), it is provided that where any person is charged with a contravention of the Act " on the " oath of a credible witness," the Justice may sum- nion such person ; and that if he shall have reason to suspect, " on information on oath," that the party is likely to abscond, he may issue a warrant to apprehend in the first instance. Convictions have been set aside in several cases on account of a warrant to cite or apprehend granted under the Act not having proceeded on the oath of a credible witness or on sworn informa- tion. — Smith V. Forbes and Low, H. C, July 22, 1848, Arkley, 508; followed by Simpson v. Crauford and Dill, H. C, Dec. 22, 1851, J. Shaw, 523; and Blythe and Taylor v. Robson, H. C, June 10, 1853, 1 irv. 235. If the statute requires the oath of the complainer, the oath of another person cannot be substituted for it. — M'Neill v. Coltness Iron Company} Apprehension on indorsed Warrants. — Under 13 iH. C, Deo. 10, 184i!, 1 Broun, 454. 314 THE GKOUNDS OF EEVIEW. Arkbst. Geo. III., cap. 31, a person apprehended in Eng- land on a Scotch warrant indorsed by an English Magistrate must be taken in the first instance to a county in Scotland geographically adjacent to Eng- land, and cannot be taken by sea to a county not adjacent' to England. — Mathews v. Glasgow Iron Company, H. C, Nov. 28, 1836, 1 Swin. 393. As to the apprehension in Scotland of a person charged with having committed a crime in England, see Watson v. Wood and Challinor, H. C, Nov. 21, 1836, 1 Swin. 339. In Beattie v. MaxiveU's Trustees, Arkley, 14, the suspender, who had been convicted and sentenced in absence for an offence against 2 and 3 Will. IV., cap. 68, was apprehended at Carlisle on the con- viction indorsed by an English Justice of the Peace. On consideration of 13 Geo. III., cap. 31, and 1 Will. IV., cap. 37, sec. 8, it was held that the said conviction was not equivalent to a warrant for apprehension in the sense of the former statute, and that therefore the apprehension was illegal. See notes to sections 8 and 9 of the Summary Procedure Act, 1864, supra, pp. 82-87, in which the existing enactments on this subject are fully discussed. 4. Citation. Many of the observations made and decisions quoted on the subject of arrest apply also to cita- tion. When the statute under which proceedings are taken provides that a warrant for citation shall be granted, it is incompetent to cite without a war- rant. So where, in a summary prosecution for breach of the peace brought under 4 Geo. IV., cap. 29 (Sheriff Court Act), which contemplates a war- rant to cite, a party was cited without a warrant, and on his attending at the Court-house was appre- ' Provision was not made in the statute for transmission by sea.. THE GROUNDS OF REVIEW.- 315 hended, placed at the bar, tried and convicted, the Citation, Court suspended the conviction.^ The Lord Jus- tice-Clerk said,2 " This is not the exercise of common " law summary jurisdiction. It is a proceeding " under a statute, and as a very considerable punish- " ment may be awarded, forms are prescribed both " for the mode of originating the case and of pro- " ceeding afterwards. The statutes contemplate a " warrant to cite, and this imports that the pro- " cedure is to begin with this deliverance, and that " authority is to be given to cite the party. I " apprehend that this procedure must follow in the " order prescribed." The necessity of complying with statutory direc- tions, where forms of procedure are given, is strongly illustrated by Cockburn v. Johnston and Rohson, H. C, June 3, 1854, 1 Irv. 492, where a sentence was suspended simpliciter, in respect that a warrant for apprehension was granted without a warrant to cite witnesses, as required by Schedule (C) of 9 Geo. IV., cap. 29, under which the complaint was brought.^ An error in the citation as to the day of the diet to which the respondent was cited was held fatal to a conviction in absence, under 2 and 3 Will. IV., cap. 68, in Waddell v. Romanes, H. C, March 4, 1857, 2 Irv. 611. Want of or defective citation may be pleaded by the party or his cautioner against sentence of fugi- tation or forfeiture of bailbond. — Lacy, Perth, April 13, 1837, 1 Swin. 493, and p. 29, supra. 5. Search Warrants. The leading cases on this head are fully discussed in the notes to Schedule (D) of the Summary Pro- 1 Stevenson v. Watson, H. C, Feb. 7, 1857, 2 Irv. 592. 2 lUd. p. 594. ' Quoted, p. 18, supra. See also James Chahners, Ayr, Sept. 14, 18.36, 1 Swin. 288. 316 THE GROUNDS OF KEVIEW. belavin cedure Act, 1864, supra, pp. 132-135. See also BRINGING -I o/. -1 otT -IT ' rC Accused PP- 186, 187, SUpra. BEFORE A Magis- TEATE. 6. Delay in bringing the Accused be/ore a Magistrate after Artiest. When a party is apprehended without a warrant he must be taken before a Magistrate within as short a time as possible. Suspension and liberation were granted in a case where a delay of sixty hours occurred. — M' Donald ^i. Lyon and Main, H. C., Dec. 8, 1851, J. Shaw, 516. The same rule applies also where a warrant for apprehension is granted, the warrant being issued, not in order to detention, but to bring the accused before the Magistrate for examination, or to answer to the charge. — Crawford v. Bldir, H. C, Nov. 17, 1856, 2 Irv. 511. 7. Judicial Examination. The judicial examination of the accused is a matter prior to and distinct from trial. The ac- cused's declaration should not be confounded with his plea. It may eventually constitute part of the evidence in the case ; but it is not a plea, and it must be proved or admitted before it can be made evidence. A workman charged with a contravention of 4 Geo. IV., cap. 34 (Master and Servant Act), was taken before a Magistrate, and a declaration of con- siderable length was taken from him. He was not asked to plead, and without further procedure the Magistrate, " having considered the complaint, oath " of the complainer, and declaration of the defender," convicted and pronounced sentence. The Court held that the question " Guilty or not guilty ? " should have been put, and that the Magistrate should not have interrogated the accused if he in- tended to treat his statement as a plea. The decla- THE GROUNDS OF REVIEW. 317 ration was held as being substantially a plea of Jtoicial " not guilty," and suspension and liberation were ^i^™''''^ granted.^ This judgment was followed in Bone v. Bird,^ which was under the same statute, and in all essen- tial particulars identical. The Lord Justice-Clerk said,^ " The course ought to be first to ascertain " whether he pleads guilty or not guilty, and then " should he plead not guilty to inquire into the " facts ; in which case his declaration may or may " not be competent as matter of evidence." And Lord Ardmillan expressed a doubt which seems well founded,* — " I think there is some irregularity " in convicting on such a declaration, even when it " clearly amounts to a plea of guilty." It would be a sound general rule, it is thought, that a party's declaration should in no circumstances be held as equivalent to a plea. All risk of mis- construction and oppressive interrogation would thus be avoided. In Bone v. Bird some observations were made upon an earher case, Morrison v. Khull, H. C, Dec. 6, 1841, 2 Swin. 584, in which a bill of suspension was refused, although the Magistrate had convicted on the accused's declaration alone. It appears from the bill of suspension* that the conviction was objected to, inter alia, on that ground, but nothing is reported as having been said about it, either at the bar or on the bench, when the case was argued and advised, and probably the objection was given, up by the suspender. The decision was explained in Bone v. Bird as having proceeded on the footing that the declaration, which was very short, was unmistakably a plea of guilty; but the case was evidently not regarded as one to be followed as a precedent. 1 Logan v. M'Adam, H. C, Deo. 5, 1853, 1 Irv. 329. « H. C, Deo. 3, 18.55, 2 Irv. 279. ' 2 Irv. 282. * Ih\d. 284. « 2 Swin. 587. 318 THE GROUNDS OF REVIEW. .TuDioiAL A warrant was granted " to apprehend and bring TioN™''^'^ " the defender into Court for examination on a " charge of fraud." The defender pleaded guilty, and at once received sentence. This proceeding was held incompetent. Lord Cockburn said, " Here " the party was brought up for examination only. " Examination was all that was to take place there " and then. He appears in order to give his decla- " ration, and this he does by saying that he is guilty " of the offence charged. Instead of recording this " as his declaration, and proceeding to regular trial, " they go on to sentence him at once upon this " confession."^ The examination must take place before a Magis- trate. A Sheriff-clerk cannot competently act as Sheriff-substitute. — John Stewart, Perth, April 22, 1857, 2 Irv. 614. The Magistrate should be present throughout the whole of the examination. — Ditrich Mahler and Marcus Berrenhard, H. C, June 15, 1857, 2 Irv. 634, and James M'Millan, Glasgow, Sept. 29, 1858, 3 Irv. 213. The declaration must be authenticated by the signatures of the accused and of the Magistrate and witnesses. — Penman v. Watt, 2 Broun, 586 ; French and others, H. C, June 25,- 1865, 2 Irv. 198. 8. Where Delay is improperly refused, or the Ac- cused is taken at a disadvantage and put upon his Trial without sufficient notice or opportunity of preparing for his Defence. See pp. 249, 250, supra. In the following eases delay was asked for and improperly refused : — O'Brien and others v. Linton, H. C, Feb. -21, 1857, 2 Irv 603; Orr v. M'Callum, H. C, June 25, 1855, 2 Irv. 183 ; Mahon v. Morton, H. C, Feb. 6, 1856, 2 Irv. 383. Even although delay may not be asked, it may ' Clarlc V. Stevenson, H. C, Nov. 19, 1853, 1 Irv. 309. THE GROUNDS OF REVIEW. 319 be oppressive in some circumstances to proceed at delay im- once to trial; as where the accused is of tender 3f,^^i;^ years, or where the charge is of a serious nature requiring time for preparation. — Crawford v. Blair, H. C, Nov. 17, 1856, 2 Irv. 511 ; Graham v. Linton, H. C, Nov. 24, 1856, 2 Irv. 558 ; Gray v. M'Gill, 3 Irv. 29 ; Jamieson and others v. Mackay, H C., Nov. 24, 1862, 4 Irv. 246, sup7^a, p. 250. 9. The Complaint or Libel. In criminal processes in inferior Courts few matters are more rigidly enforced by the Court of Justiciary than the relevancy and competency of criminal complaints and libels, both as regards the crime or offence charged, and the particular acts which are alleged to constitute it in the individual case. This strictness is essential to the proper administration of justice, because the legality of the conviction depends upon the legality of the charge. The simplest form of conviction is, " Find " the charge proved," or, " Find the prisoner guilty " as libelled." One is thus referred back to the complaint or libel to see what the charge is ; and if the charge as therein set forth is irrelevant or incompetent, the conviction must be so too. It will not do for the prosecutor to say, " The " panel knew perfectly well what was meant ; he " was taken in act ; he stated no objection to " the complaint ; and the evidence clearly estab- " lished his guilt, although not precisely of the " crime or of the criminal acts set forth in the " complaint." It is conceivable that, in the hands of an experienced Judge, what is called " sub- " stantial justice " might be done in such a case ; but this would be effected, not by proceeding according to law, but by ignoring the charge and deciding solely on the evidence. He would thus be constituted the Judge not merely of whether a particular charge is proved, but of what the 320 THE GROUNDS OF REVIEW. The Com- proper charge is, because, ex hypothesi, the charge L™ °^ as Hbelled is irrelevant, and the crime of which the accused is convicted is not charged in the com- plaint. , This would be a dangerous power to place in the hands of any Judge, and one utterly incon- sistent, with the well settled rule of criminal pro- cedure that a man cannot be committed or sent to trial on one charge and convicted of another. In the case of Magistrates who are not trained lawyers, such looseness of procedure would be dangerous beyond description, the more so where review on the facts is excluded. It is not disrespectful to that large and useful body of men to say that an unfair burden would Ibe thrown upon them had they to decide the many cases brought before them on such a footing. Given a relevant charge, the limits of the inquiry are well defined ; all the Magistrate has to do is to say whether that charge is proved. But once let him throw aside the complaint as not set- ting fo°rth relevantly and accurately the crime which he is to try, and the proof becomes unmanageable. Its lirlits are no longer well defined, because the pre- cise rriatters to be proved are not clearly ascertained ab ante. The double burden is thrown on the Magis- trate of determining whether the accused has commit- ted a crime or offence, and, if so, what that crime or offence is ; and for the first time, on conviction, the ac- cused'knows what the precise charge against him is. This is to invert the proper order of things ; it is the course of precognition, not of trial. It is the part of the prosecutor to decide, on the facts ascertained in precognition, what the crime is with which he should charge the accused ; it is the part of the Judge thereafter to say ^rsi, whether the complaint brought by the prosecutor is relevant, and, if so, secondly, whether the charge is proved. In the case sup- posed the Judge would have first to investigate the case, and then decide what crime had been com- mitted and should have been charged. The form and requisites of criminal complaints THE GROUNDS OF REVIEW. 321 and libels have been so fully discussed already that the com- little remains to be done here but to referto the lie™J °^ passages in question.. (1) Summary Complaints : — Under Sir William Eae's ^c^.— The form will be found on page 18, note 2. See also pp. 32 and 33. Under the Sumvimry Procedure Act, 1864. — See pp. 124-130. The requisites of a summary complaint charging compUint a crime at common law are considered in the notes mon'kw. to Schedule (A), No. 1, of the last named Act, pp. 124-126, supra. In addition to the cases there cited, the following may be referred to : — Wilson v. Dykes} Rae v. Linton.'^ In Donaldson v. Buchan^ a complaint charging reset of theft was held irrelevant because it con- tained no substantive averment that the goods had been stolen. The suspension was sustained. In Cowan v. M'Minn* a complaint charging the crime of theft was held irrelevant, in respect that the species /acti disclosed a breach of contract, and not a criminal offence. Sentence was suspended simpliciter. See also Neilson v. Stirling.^ The requisites of a statutory charge are given in statutory the notes to Schedule (A), No. 2, of the Summary °^^'^se- Procedure Act of 1864, supra, pp. 127-130. Re- ference is also made to the cases cited in note 4 to section 5 of the same Act, supra, pp. 75-80, which, with two or three exceptions, relate to statutory charges. In Mains and Bannatyne v. M'Lullich and Fraser^ a charge under section 1 of 9 Geo. IV., cap. 69, was held irrelevant, because the word "unlawfully" was so placed in the complaint as ' 2 Couper, 183, supra, p. 78. " 2 Rettie (Just.), 17, supra, p. 79. » H. C, Nov, 18, 1861, 4 Irv. 109. • H. C, Jan. 8, 1859, 3 Irv. 312. • 1 Oouper, 476, supra, p. 77. • H. C, Feb. 6, 1860, 3 Irv. 533. 322 THE GROUNDS OF REVIEW. The Com- not to apply to the charge of kiUing a hare therein ^rj^niade. In Mitchell v. CampheW a charge under the same statute was held irrelevant because the accused was charged with " taking or destroying game or " 7'abbits" the proper statutory charge being " tak- " ing or destroying game " alone. In Craig v. Peebles, H. C, June 16, 1875, 2 Rettie (Justiciary Cases), 30, a complaint under the Public Houses Amendment (Scotland) Act, 1862, was held irrelevant; it being decided that partial destruction by fire of premises for which the sus- pender held an unexpired public house certificate, did not put an end to the certificate, so as to sub- ject the holder to a penalty for continuing to sell liquor within the ruined walls of the said premises, which was the offence charged. Criminal (2) Criminal Libels in the Sheriff's criminal Libels. Court^ are tested with the same strictness as in- dictments before the Court of Justiciary. If the libel is irrelevant the sentence will be suspended, although it proceeds on the verdict of an assize.^ Not to multiply instances, a sentence, proceed- ing on the verdict of an assize, was suspended in Clendinnen v. Rodger,*' on the ground that the libel was irrelevant. The crime charged in the major proposition was, "Fraud, particularly the " wickedly, fraudulently, and feloniously putting " away, carrying off, or secreting by an insolvent " or other debtor of his fimds or effects, with " intent to defraud his creditors." It was held that the interjection of the words "or other " made the charge irrelevant.^ The competency of suspension on the ground of irrelevancy was also recognised in Jameson v. ' 4 Irv. 257, and infra, p. 326. ^ See pp. 25, 26, and Appendix A, No. 1. ' Supra, p. 171. «H. C. (full bench), Dec. 2, 1875, 3 Rettie (Justiciary Cases), 3, and Appendix. ^ Overruling M'Bae, Glasgow, Sept. 17, 1867, 5 Irv. 463. THE GROUNDS OF REVIEW. 323 Lothian,^ Anderson v. Blair ^ and Smith v. Lothiaft} The Com- Little or no weight seems to have been attached in liebl^ °^ any of these cases to the fact that the objection was not taken by the panel in the inferior Court. In Clendinnen v. Rodger it was not taken at all. In Smith v. Lothian it was not taken at the proper time, i.e. at the first diet ; but there the High Court repelled the objection on its merits, and not because it was not taken timeously. 10. The rejection of Competent and the admission of Incompetent Evidence. Rejection of Competent Evidence. — In the Police Court of Glasgow several parties were charged with acts of disorderly conduct, all arising out of and connected with the same disturbance. Their trials haAdng been separated, some of them tendered as witnesses in their favour others of their number who either had been tried or were to be tried separately. The Magistrate refused to allow the persons so tendered to be examined, on the ground that they were socii criminis. The High Court set aside convictions obtained against two of the ac- cused, on the ground that the evidence tendered was improperly rejected. — Bell and Shaw v. Hous- ton, H. C, Jan. 22, 1842, 1 Broun, 49.* Incompetent Evidence admitted.- — In Kei'r v. Mac- kay, Inverness, April 21, 1853, 1 Irv. 213, a con- viction in the Sheriff Court, proceeding on the verdict of an assize, was set aside on the ground that the SheriflF admitted evidence by a Superin- tendent of Police of information which he had obtained from the accused by means of false representations. In Burns v. Hart and Young^ a conviction, 1 2 Irv. 273. 2 4 Irv. 5, and supra, p. 171. ' Ibid. 170, and supra, p. 24. ■* See also Hume, ii. 514 ; Alison, ii. 29. = H. C, Dec. 19, 1856, 2 Irv. 571. 324 THE GROUNDS OF REVIEW. impropbk which also proceeded on the verdict of an assize, sioN AND was set aside because, in the course of the trial rejec- (the libel charging theft as also reset of theft), EymENCE evidence was admitted to the effect that the accused was habite and repute a resetter. Lord Cowan said,i " The Court is always very unwilling " to set aside a conviction proceeding on the ver- " diet of a jury ; but where evidence has been ad- " mitted which is altogether incompetent, we can- " not hesitate to do so." 11. Failure or Refusal to record, or to take and . preserve a Note of Evidence. The ordinary common law rule is, that in crimi- nal prosecutions in inferior Courts, the proof must be reduced to writing. This obligation may be dispensed with or relaxed by statute, either ex- pressly or by necessary implication.^ The Judge's notes may be substituted for a full record of the evidence, as provided by 9 Geo. IV., Qap. 29, sec. 20.^ Or the recording or noting of the evidence may be made dependent upon the parties, or either of them, requiring it to be made.* But where there is no statutory dispensation, either expressed or necessarily to be implied, the evidence must be reduced to writing, and not even the express con- sent of the panel that the evidence shall not be recorded will bar him from bringing the proceed- ings under review. — Penman v. Watt, H. C, Nov. 24 and 25, 1845, 2 Broun, 586. The statute under which proceedings were taken in that case was 4 Geo. IV., cap 34. But if it plainly appears from the statute that the ordinary common law procedure is inapplicable, and that it is not intended that it should be used, » 2 Irv. 574. ' See notes to section 16 of the Summary Procedure Act, 1864, supra, pp. 91-94. * Supra, pp. 18 and 34. < For instance, tlie Tweed Fisheries Act. 1857, section 93. Halliday v. Bathgate, 5 Irv. 382. THE GROUNDS OF REVIEW. 325 the evidence need not be reduced to writing. This failueb was held as to proceedings under 6 Geo. IV., cap. °^si^L,ro 129 (Combination of Workmen Act), in Knox v. record Ramsay, H. C, July 7, 1837, 1 Swin. 517 ■} and as t^f^Z^ to proceedings under 9 Geo. IV., cap. 69 (the Night Poaching Act), in Shields v. Dykes, H. C, Feb. 2, 1854, 1 Irv. 359. 12. Failure or Refusal to note Objections to the Admission or Rejection of Evidence. Some statutes and regulations give express direc- tions that such objections shall be noted, for in- stance — Injury tibials. — The Act of Adjournal, 17th March 1827, chap. V., sec. 1, supra, pp. 12 and 31. See also p. 173. In summary trials — (1) 9 Geo. IV., cap. 29, sec. 19, supra, pp. 18 and 33. (2) The Summary Prosecutions Appeals Act, 1875, sec. 6, supra, p. 209. Other statutes again prescribe a form of record, which contains no provision for noting such objec- tions, — ^for instance, section 16, and Schedule (I) of the Simimary Procedure Act, 1864, supra, pp. 91 and 138, — and thus appear by implication to dispense with such a note. It may be doubted, however, whether, even in proceedings under such a statute, the Court of Justiciary would not order inquiry and grant redress, if it appeared that the Judge had failed when asked to note a well founded and mate- rial objection. 13. Amendment of Complaint or Libel. A complaint under the first section of 9 Geo. IV., cap. 69, charged the accused with unlawfully enter- ing or being on certain lands " for the purpose of ' Lord Medwyn dissented. 326 THE GROUNDS OF REVIEW. Amend- " taking game or rabbits." The accused having MBNTor objected to the relevancy of the complaint, on the PLAINT OE ground, inter alia, that entering or being upon lands Libel. £^j, ^j^^ purpose of taking rabbits was not a statutory- offence, the Sheriff allowed the prosecutor to delete the words " or rabbits" and, this having been done, repelled the objections io the relevancy. In a suspension it was held that this amendment was incompetent. The Lord Justice-Clerk (Inglis) said, " Such an alteration of the complaint I hold to be " quite incompetent without the consent of the " accused." — Mitchell v. Campbell, H. C, Jan. 5, 1863, 4 Irv. 257. ^ Considerable powers of amendment, " not chang- " ing the character of the offence," are given by section 5 of the Summary Procedure Act, 1864. Special reference is made to the notes to that sec- tion, supra, pp. 73-81, and, in particular, to the case of Owens v. Calderwood,^ in which an amendment of a material character was held competent. 14. Adjournment during Trial and Inclosure of the Assize. The power of adjourning, during trial, if not oppressively exercised, is inherent at common law in every Court possessing criminal jurisdiction, on the principle that with jurisdiction there is given every power which is necessary to the full exercise of the jurisdiction.^ And the same rule applies in proceedings under penal statutes in the absence of provision to the contrary.* As to granting warrant for the incarceration or detention of the respondent during such adjourn- ments, there is more difficulty. In proper criminal causes such a power no doubt exists. But in ' See also Smith v. Young, H. 0. , Maroli 8, 1856, 2 Irv 402 2 H. C, Feb. 20, 1869, 1 Couper,' 217, and supra, p. 78. s Opinions of the Lord Justice-Clerk (Inglis) and Lord Cowan in Bruce v ii««ore, Nov. 30, 1860, 23 D. 94 and 95. wauiu^?«ccv. * Malonie v. Jeffrey, Jan. 22, 1840, 2 Svvin. 485. THE GROUNDS OF REVIEW, 327 quasi-criminal proceedings under penal statutes, the adjoukn- powers of interfering witt the liberty of the subject ^^^'^' ^°' by apprehension or incarceration conferred by the statute are strictly construed. In Bruce v. Linton ^ it was held, in proceedings under the statutes 9 Geo. IV., cap. 58, and 16 and 17 'Vict., cap. 67, that where the diet was adjourned by the Magistrate until the following day, it was incompetent for him to grant warrant for the incar- ceration of the respondent " till he find caution " acted in the books of Court, under a penalty of " £20 sterling for his appearance at that and all " future diets of Court." The Act 16 and 17 Vict., cap. 67, authorises apprehension in the first instance instead of citation, and gives the Magistrates power to adjourn, but it gives no power to incarcerate the respondent during adjournment. The Sum- mary Procedure Act, 1864, section 12, gives express power to the inferior Court, in cases brought under that Act, to grant warrant to detain the respondent in prison " until the period to which the hearing " shall be adjourned, or until he finds sufficient " caution to appear at all future diets of the Court. "^ The power thus given may be exercised in proceed- ings under statutes which do not authorise deten- tion, provided the complaint is brought under the Summary Procedure Act. In criminal trials by jury the adjournment of the diet is a matter requiring considerable care and regularity. The origin of the existing practice as to adjourn- ment during criminal trials by jury, whether in the Court of Justiciary or in the Sheriff" Court, where the same rules obtain,^ was fully discussed in M'Garth and others v. Bathgate.* In the course of a trial by Sheriff" and jury, which lasted three days, 1 23 D. 85, and supra, p. 89. 2 Supra, p. 88. ■* Supra, pp. 17 and .30. " H. C, May 14 and 15, 1809, 1 Couper, 200, erroneously called M'Garth and Others v. Wingate. 328 THE GROUNDS OF REVIEW. abjoirn- the Slieriff twice adjourned the diet without giving ME.NT, &,c. y^ jj^g interlocutors any directions as to the custody of the panels or seclusion of the jury. What the Sheriff omitted to do is thus described by Lord Cowan :^ " We have no warrant to carry the prison- " ers to gaol and to bring them up to the adjourned " diet ; no order on the jurymen to remain under " charge of the macers at any appointed place ; no " duty imposed on any one to keep the jury from " communicating with others ; and no oath adminis- " tered to the officers of Court said to have been in " charge ; nor was any specific duty laid on the " Clerk of Court." In respect of these defects in the interlocutors adjourning the diet, the sentence was suspended, although it was alleged that, in point of fact, the jury had on both occasions remained together in proper custody and seclusion during the adjourn- ments.^ If after inclosure any of the jury escape, or are permitted to leave and hold communication with members of the public, the verdict and sentence will in general be set aside,^ provided the conduct complained of does not come to the knowledge of the panel before the verdict is returned. In the case of Luke,* the panel's counsel, on the ' 1 Couper, 279. ' The form of iDterlooiitor now used in the High Court in adjourning a criminal trial to another day is as follows : — " In respect of the length of time already occupied by this trial, and the ' ' impossibility of bringing it to a conclusion in the course of this sederunt " with a due regard to the case, the Court continued the diet against the " panel till to-morrow morning at ten o'clock, and ordained all concerned, " panel, parties, witnesses, and assizers, then to attend, each under the ' ' pains of law, the panel in the meantime to be carried to and detained in "the prison of Edinburgh, and the haUl 15 jurors now in the box to " repair under the charge of the Macers of Court to Hotel, in " Street, Edinburgh, where it was stated accommodation had been provided " for them, there to remain till brought here to-morrow in the hour of " cause above mentioned, and being strictly secluded during the period of " adjournment from all communication with any person whatever on the " subject of this trial, the Clerk of Court having access to and liberty to " communicate with them in relation to their private aflfairs. " [Signed by Clerk of Justiciary.] ' Alison, ii. .31 ; Sanderson, July 17."0, M'Laurin,No. 46 ; Hume, ii. 515. * Dundee, Sept. 13, 1S66, 5 Trv. 293. THE GROUNDS OF REVIEW. 329 third day of a trial (the verdict having been returned adjourn- on the second day) objected, in arrest of judgment, ^^^''^' ^°' that one of the jury had during an adjournment, between the first and second days of the trial, escaped or been allowed to leave by the macer or officer in charge of the jury, and had been absent all night ; and that while so absent he had had communication with certain persons unknown. It was further stated that these facts had only just come to the panel's knowledge. The Court held that the objection came too late ;^ their reasons are thus stated in the interlocutor : — " In respect the jury empannelled to try the case returned their verdict without any exception being taken to the competency of their so acting, and in respect, further, that on the Advocate- Depute moviag for sentence after the verdict had been so returned, the case was then continued (without exception on the part of the panel) for the sole purpose of consideration by the Court of the nature and extent of the punishment to follow the verdict of the jury, — Refuse the motion." Where a juryman conversed with a person on a subject not. connected with the trial, and was absent for about 6 minutes, an objection to the trial was repelled.^ 15. The Verdict. The verdict must be consistent with the charge. A verdict of guilty of theft, where the charge is assault and robbery, is inept. ^ Where the charges in the libel are alternative, a general verdict of guilty as libelled is incompetent. The jury must discriminate and say which of the two charges they find proved, otherwise the verdict will be held bad from uncertainty.* Where the charge is theft aggravated by being ' Tlie correctness of this ruling seems to be open to doubt, if, as stated, the jiaiiel did not know of the irregularity complained of until the day after the verdict was returned. 2 Macdonald, Sept. 26, 1821, Shaw (Just), 43. 3 Wallace and Others, May 21, 1821, Shaw (Just), 30. * Watt, Nov. 15, 1824. Shaw (Just), 128 ; Sinclair. Sept. 28, 1825 ; Ibid. 138 ; Graham v. Todtrick, H. C, May 21, 1864, 4 Irv. 6U4. tion. 330 THE GROUNDS OF REVIEW. theVbe- habite and repute a thief, it is incompetent to DicT. return a verdict of "guilty of being habite and " repute a thief," but not of theft.^ When once recorded the verdict cannot be changed, modified, or explained ; if it is inept or contradictory, a valid sentence cannot pass upon it.^ 16. Conviction and Sentence. Convio- (1), Conviction. — ^As already explained, a con- viction following on an irrelevant or incompetent charge will be set aside.^ Again, a general conviction following on an alternative charge will be suspended.* The conviction must be conform to the charge. Thus where, in a prosecution imder 9 Geo. IV., cap. 69, the Sheriff found the accused guilty of being on the lands libelled, "for the purpose of destroying " game as libelled," the conviction was set aside in respect that in his finding the Sheriff had omitted the word " unlawfully,"^ and that thus the accused was not convicted of the statutory charge. In Craig v. The Great North of Scotland Rail- ivay Company,^ the Sherifi" convicted the accused " of having failed to deliver up his ticket," but said nothing as to his having refused to pay the fare which was of the essence of the charge founded on the byelaw which was said to have been contra- vened. Sentence was suspended. It should be stated in the conviction whether it proceeds on evidence adduced, or on the confession of the accused. When a conviction simply found the accused "guilty of the crime of theft as 1 Beatson, July 17, 1820, Shaw (Jusb.), 18. " Hunter and Others (Glasgow Cotton Spinners' Case), Jan. 8, 1838, 2 Swin. 14 and 1 5. ' Supra, p. 171. And see Arthur v. Peebles, supra, p. 128. * M'Nab V. Glass, H. C, Jan. 22, 1842, 1 Broun, 41 ; Jones and M'Ewan V. Mitchell, H. C, Dec. 23, 1853, 1 Irv. 334 ; JUains, 3 Irv. 533, and supra, p. 321 ; Neilson v. Stirling, 1 Couper, 476, and supra, p. 77 ; De JJanzie v Peebles, H. C, Mar. 16, 1875, 2 Eettie (Just.), 22. ^ SmMhv. Young, H. C.,Mar. 8, 1856, 2 Irv. 402. " 5 Irv. 206, and supi-a, p. 78. THE GROUNDS OF REVIEW. 331 " charged," without stating the grounds on which it ConVic- ' - ■ - - TION AND Sentence. proceeded, it was set aside, ^ ~ '""^ ^^^ In Grap v. M'Gill,^ one ground of suspension was that the conviction bore to proceed partly on evidence adduced, and partly on the admission (not the declaration or plea) of the two accused persons. In regard to this ground of suspension Lord Ard- millan said, " One of the points noticed by your " Lordship I look upon as very, important. I mean " that part of the judgment which refers to the " terms of the sentence. A combination of two " kinds of evidence is there set forth — the sentence " bearing to proceed upon a complex view of " evidence and a partial admission. It is clear that " the confession was not of itself sufficient, and " that is the reason why the attempt is made to eke " it out by other evidence. Now I can imagine a " case where a confession may be accompanied by " a distinct qualification, and where the prosecutor " may either take the confession so far as it goes, " and rebut the qualification, or — and this is in " general much the safest plan — he may treat the " plea so qualified as one of not guilty, and let the " case proceed accordingly. But this was not the " course adopted here." (2), Sentence. — The sentence pronounced must Sentence. be that authorised by the statute or at common law, neither more nor less. A strong illustration of this is to be found in Ferguson v. Thow,^ where a sentence, pronounced in a prosecution under 4 Geo. IV., cap. 34, was suspended because hard labour was not imposed as part of the sentence. That statute provides that warrant may be granted " for committing him (the " party complained against) to the house of correc- " tion or prison, to remain and be held at hard " labour for a reasonable time, not exceeding three 1 acott V Sinclair, H. C, Deo. 19, 18o7, 2 Irv. 745. ' 3 Irv. 29, and supra. See opinion of Lord Ivory, p. 45, and that of Lord Ardmillan, p. 49. 3 H. C, June 30, 1802, 4 Irv. 196. 332 THE GROUNDS OF REVIEW. coNvic " months." The Lord Justice-General (M'Neill) sbI^ence. ^^id» " I^ appears to me that the enactment in the " clause referred to is not complete till you come " to the provision regarding hard labour. It is no " good answer that this particular prisoner has no " reason to complain of the non-fulfilment of that " provision. The duty of the Justices is to walk " according to the statute, which imposes one kind " of punishment, and does not leave it open to " them to dispense with the hard labour." In Gardner v. Dymock} in a prosecution for a contravention of 13 and 14 Vict., cap. 70, brought under the Summary Procedure Act, a sentence was suspended as disconform to statute, in respect that no pecuniary penalty was imposed. ^ It was held that the Magistrate had not pronounced an exhaust- ive sentence, and that under the statutes he had no power to abstain from imposing a penalty. The sentence cannot impose a punishment which is not covered by the prayer of the complaint or libel, even should the sentence be milder than that prayed for. The prayer of a criminal libel was for imprisonment only. On the application of the panel, the Sheriff, after conviction, imposed a fine instead of imprisonment. The sentence was sus- pended, " in respect the prayer in the original com- " plaint is for imprisonment only, while the sen- " tence pronounced is for a fine."* Where the statute directs that the penalty im- posed shall be allocated in a certain way, the sen- tence will be suspended if this is not done. It was so held in proceedings under 30 and 31 Vict., cap. 141 (Master and Servant Act, 1867).— G^a/i v. Ritchie, 2 Couper, 470. In Ross V. Stirling it was held that it was in- competent to award expenses in a prosecution for a contravention of section 16 of 26 and 26 Vict., cap. 36 (Public Houses Act, 1862), brought under ' 5 Irv. 18. = Bv a majority. = Lammd v. Bakrr, Feb. 9, 1860, 22 D. "18. THE GROUNDS OF REVIEW. 333 the Summary Procedure Act. The sentence was Convic- tion ANl Sentence. accordingly suspended.^ tionand In proceedings under the same statutes it was • held ultra vires of the Magistrates to award im- mediate imprisonment, in respect that the Public Houses Act, 1862, authorised imprisonment only after failure to pay within fourteen days.^ Where imprisonment is awarded in criminal cases, the sentence must specify a definite term of imprison- ment. A sentence following on a complaint under 4 Geo. IV., cap. 34, which awarded imprisonment " for a reasonable time not exceeding three months," was suspended, " in respect that no definite period " of imprisonment had been awarded."^ Where a case is heard by two Justices or Magis- trates, the conviction and sentence must be signed by both.* In one case a conviction, signed by the presiding Justice as preses, was sustained in respect of an alleged custom;^ but whatever may be the law while the Justices are acting in exercise of their common law powers, it is right, when they are acting under statutory authority, that all who hear the case, or at least a quorum, should sign the conviction.^ If the sentence is vitiated in essentialibus, it will be set aside.^ Unless proceedings in absence are authorised by the statute, the conviction and sentence must be written out and signed before the panel is removed from the bar.^ * H. C, Oct. 22, 1869, 1 Couper, 336, and supra, p. 105. ' Rhodes v. Ross, 1 Couper, 469 ; lautseeM'Donellw. Davidson, 1 Couper, 9, and supra, p. 222, note 2. ^ Grant v. Grant, H. C, Dec. 3, 1855, 2 Irv. 277. * LockY. Doolen, H. C, Feb. 6, 1850, J. Shaw, 307; Williamson v. Thom- son, H. C, Nov. 29, 1858, 3 Irv. 295. ° Ranhen v. Alexander, 1 Swin. 44. * Compare Ranken v. Alexander, supra, and Birrel v. Jones, 3 Irv. 556. See supra, pp. 214, 215, note 4. ' Murchie v. Fairhairn, 1 Maoph. 800, supra, 259 ; and Olarhson v. Muir, 2 Couper, 125, and supra, p. 306 ; but see Stewart v. Boyd, where a con- viction was sustained, although the Justice by a second interlocutor recalled part of the sentence originally imposed. ' Gray v. M'Gill, 3 Irv. 29, supra. 334 THE GROUNDS OF REVIEW. In conclusion it should be stated that the examples given in this chapter are only a few among many illustrations of the grounds of review competent in criminal cases ; but it is hoped that they will serve to give a general idea of the powers of the Court of Justiciary in enforcing regularity and purity in the administration of criminal justice in inferior Courts. APPENDIX. A. TRIAL BY JURY ON A CRIMINAL LIBEL. 1. CrimiTial Libel in Trial hy Sheriff aind Jwry. A RCHIBALD DAVIDSON, Esquire, Sheriff of Mid-Lothian ■^'- and Haddington, To the Clerk of the Sheriff Court of Mid-Lothian, and his deputes, and officers of said Court, executors hereof, respectively, in terms of law, greeting, — Whereas it is humbly meant and complained to me by Robert Laidlaw Stuart, Procurator-Fiscal of said Court, for the public interest, upon and against A B , now or lately a prisoner in the prison of Edinburgh: THAT ALBEIT, by the laws of this and of every other well-governed realm, THEFT is a crime of a heinous nature, and severely punishable: YET TRUE IT IS AND OF VERITY, that the said A B is guilty of the said crime of theft, actor, or art and part : IN SO FAR AS, the said A B [Here follows the species facti.] And the said A B having been apprehended and taken before John Tawse, Esq., one of the magistrates of the city of Edinburgh, did, in his presence at Edinburgh, on the day of 1876, emit and subscribe a declaration : Which Declaration, as also the articles specified in the Inventory hereunto annexed and referred to, being to be used in evidence against the said A B at his trial, will, for that purpose, be in due time lodged in the hands of the Clerk of the Sheriff Court of Mid-Lothian, before which he is to be tried, that he may have an opportunity of seeing the saine : ALL WHICH, or part whereof, being admitted by the judicial confession of the said A B , or found proven by the verdict of an Assize, before me or any of my Substitutes, the said A B ought to be punished with the pains of law, to deter him and others from committing the like crimes in all time coming. HEREFORE IT IS MY WILL, and I command you, that Will of the on sight hereof ye pass, and in Her Majesty's name and authority -^^^^-^ and mine, lawfully summon, warn, and charge the said A See p. 23, supra. The will contains two diets of compearance in terms of 16 and 17 Viot., cap. 80, sec. 35, and Schedule (L). 336 APPENDIX A. Criminal B to compear personally before me, or any of my Substi- LiBEL. tutes, in a 'Court to be holden by us, or any of us, at Edinburgh, within the ordinary Sheriff Court-house there, upon the 1st Diet. Twenty-seventh day of November, eighteen hundred and seventy- six years, in the hour of cause, at twelve o'clock noon, for the first diet, there to plead Guilty or Not Guilty, and to underlye the law for the crime above mentioned ; and also, if required, upon the 2d .Diet. Seventh day of December, eighteen hundred and seventy-six years, for the second diet, at ten o'clock forenoon, again to plead Guilty or Not Guilty, and to underlye the law as aforesaid ; as also, if required, for the said second diet alternately, that ye summon an Assize hereto, being not fewer than the number of forty-five per- sons, together with such witnesses as best know the verity of the premises, whose names are hereto subjoined in a list subscribed by the complainer, personally, or at their dwelling-places, all to com- pear before me, or any of my Substitutes, time and place of said second diet of compearance ; the said persons of inquest to pass upon the Assize of the said A B , and the said wit- nesses to bear leal and soothfast witnessing, in so far as they know or shall be asked at them, respecting' the said A B , his guiltiness of the crime libelled ; ilk assizer and witness under the pain of one hundred merks Scots : According to justice, as you shall answer to me thereupon : The which to do I commit to you respectively, in terms of law, as said is, full power by these my letters, delivering them, by you duly executed and endorsed, again to the bearer. Given at Edinburgh, and signed by the Clerk of the Sheriff Court of Mid-Lothian, the twenty-first day of November, in the yea/r eighteen hundred and seventy-six. (Signed) John C. "Whitten, Sheriff-Clerk. [Here follow the inventory referred to in the foregoing libel, the list of witnesses, a/nd the list of the assize.^ S. Blamk Letters of Exculpation.'^ ARCHIBALD DAVIDSON, Esquire, Sheriff of Mid-Lothian and Haddington,^ — To my officers of Court, executors hereof, conjunctly and severally, specially constituted, greeting : — ' See pp. 12 and 28, supra. APPENDIX A. 337 WHEREAS it is humbly meant and shewn to me by Criminal Libel in complainer ™^^/ that the said complainer been indicted to stand trial andJuby. before me in a Criminal Libel at the instance of the Procurator- Fiscal of Court of the said County, for the crime of and as the said complainer mean to adduce certain witnesses by way of exculpatory proof : — My will is herefoee, and I charge you strictly, and command, that ye pass, and, in my name and authority, SUMMON, WARN, and CHARGE, personally, or at their dwelling-places, such wit- nesses as best know the verity of the premises, whose names shall be given to you in a List signed by the complainer or solicitor, to compear before me, or my Substitute, witliin the Sheriff Court, County Buildings, Edinburgh, upon the day of in the hour of cause (Ten o'clock Forenoon), to bear leal and soothfast witnessing, in so far as they know, or it shall be asked at them, in all matters relating to the said complainer's innocence, or in exculpation of the crime libelled, each under the pain of one hundred merks Scots. — Which to do is hereby committed to you. — ^According to Justice, as you will answer thereupon. Given under the hand of the Clerk of Court, at Edinburgh, the day of eighteen hundred and years. (Signed) , Sheriff-Clerk. 3. Record of Trial hy Slieriff mid Jury. SHERIFF COURT. At Edinburgh, the day of 1876 years, in a Sheriff Court of Mid-Lothian, held by Aj-chibald Davidson, Esq., Sheriff of Mid- Lothian and Haddington, — Compeared A B , the panel, designed in the preceding libel, and accused as therein set forth. Present, — For the panel, — The Prosecutor. Mr D. Smith, Law Agent. The Sheriff finds the libel relevant to infer the pains of law. (Signed) Archd. Davidson. The panel being interrogated by the Court upon the libel, he answers that he is not guilty. Y 338 APPENDIX A. ItEcoEDiN Tlie SheriflF, in respect of the said plea of not guilty, continues TRIAL BY ^i^g gjjgg iq tjie day of 1876 years, being the second "^ND Jury *^^®* °^ compearance set forth in the Will of the Libel, and ordains " the panel then to appear. (Signed) Aechd. Davidson. At Edinburgh, the day of 1876 years, pitting in judgment, Hubert Hamilton, Esq., Sheriff-substitute of Mid-Lothian, — The diet being again called, recompeared the said A B Present, — For the panel, — The Prosecutor. Mr Brand, Advocate. The panel again pleaded not guilty. The Sheriff-substitute remits the panel and the libel to the knowledge of an Assize, and allows the panel a proof in exculpation and alleviation. The following 15 persons were balloted to pass upon [the Assize : — [Here follows list ofjv/rors^, who were lawfully sworn, and no objections to the contrary. The following witnesses were adduced, sworn and examined in support of the libel : — [Witnesses' names]. The panel admits that the declaration libelled was freely and voluntarily emitted by him of the date it bears, and while in his sound and sober senses. [Signed by Cov/nsel or Procurator Jbr Panel.] The declaration was here read. The Procurator-Fiscal declared the evidence in support of the libel closed. The following witnesses were adduced, sworn and examined in exculpation : — [Witnesses' names]. The Counsel for the panel declared the evidence in exculpation closed. The Prosecutor and the Counsel for the panel severally addressed the Jury. The Sheriff-substitute summed up the evidence. The Jury find the panel guilty of the crime of theft as libelled. [Here follows sentence siyned by Sheriff'.] 4. Interlocutor adjourning the Bietfrom one day to anotJier, in a Trial hy Sheriff and Jury.^ In respect of the length of time already occupied by the trial, and the impossibility of bringing it to a conclusion in the course of this sederunt with a due regard to the case, the Sheriff [or Sheriff-substitute] continues tbe diet against the panel till to- moiTOW morning at o'clock, and ordains all concerned then to attend, each under the pains of law, and the 1 See the case of M'Garth and others v. Bathgate, 1 Cotiper, 2C0, supra, p. 327. APPENDICES A, B, AND C. 339 panel in the meantime to be carried to and detained in the prison Adjourn- of ; and the haill 15 juroi-s now in the box to mi^nt op repair under the charge of [/lere give name and designation of the ^ijT/ ^y officer under whose charge the jury are placed] to [give the raomeo/ gHEEirr the hotel or house to which the jury are to he taken for the night], and Jury where it is stated that accommodation has been provided for them, there to remain till brought here to-morrow in the hour of cause above mentioned, and being strictly secluded during the period of adjournment from all communication with any person whatever on the subject of this trial, the Clerk of Court having access to and liberty to communicate with them in relation to pri- vate affairs. [Signed by the Sheriff.] B. TRIAL ON SUMMARY COMPLAINT. 1. Under 9 Geo. IV., cap. 29 {Sir William- Eae' s Act), sec. 19, and Scliedule (G). Form of Complaint and Deliverance. — Supra, p. 18, note 2. Procedure thereon and Sentence. — Supra, p. 19, note ; and pp. 32-34. 2. Under the Summary Procedure Act, 1864- Forms : — In Complaints^at Common Law. — Supira, p. 124. In Complaints under Statute. — Supra, p. 126. Interlocutors and Warrants. — Supra, pp. 130-149. c. BILL OF ADVOCATION. Bill of Advocatim,^ of Judgment dismissing a Gomplaint. Unto the Right Honourable the Loed JusTiCE-GENERAt Lord Justice-Clerk, and Lords Commissioners of Just CIAEY, Humbly means and shews your Servitor, — A B [designing him], Gomplainer ; against Q D [designing him], Jiespondent. That the complainer is under the necessity of complaining 1 Or " Advocation and yuspensioii. " TION. 340 APPENDIX C. Bill of yonr Lordships of a pretended interlocutor or judgment pro- Advoca- nounced at on the day of two of Her Majesty's Justices of the Peace for the county of [or hy the Sheriff-substiPute of the County, or other inferior Judge or Judges, naming him or them\, upon a peti- tion or complaint at the instance of the complainer \if at the in- stance of a private pan-ty add, with concurrence of E P , Procurator-Fiscal of Court], as therein set forth, charging the respondent with a contravention of the Statute [or other crime or offencel, whereby the said Justices [or Sheriff- substitute, or other Judge or Judges^ dismissed the said petition or complaint most wrongously and unjustly, as will appear to your Lordships from the annexed Statement of Facts and Note of Pleas in Law. Herefore the complainer prays yov/r Lordships for letters of advocation in the premises at his instance in common form ; and in the meantime to grant war- rant to the [Clerk of the Court in which case has been decided] at [the town where the trial took place] or other custodier of the proceedings at the instance of the complainer against the respondent, and interlocutors following thereon, to tramsmit the same to the Clerh of Justiciary ; and on considera- tion of the said proceedings, to advocate the same ; to recal the interlocutor or judgment complained of ; to remit to the Justices of the Peace for the said county [or other Judge or Judges] to proceed with the said petition or com,plaint ; to find the com/plainer entitled to expenses; or to do further or otherwise in the premises as to your Lordships shall seem proper. According to Justice. [Signed by Counsel or Agent]. [Here follow the Statement of Facts and Note of Pleas in Loajo,^ which cvre also signed hy the complainer^ s counsel or agent.^ First Interlocutor. Edinburgh, 18 . — Having considered this Bill, Grants warrant for serving a copy thereof, and of this deKverance, on the therein named C D , Respondent ; and further. Grants warrant for and ordains transmission of the proceedings ' See pp. 1G7 and 174, supra. APPENDIX C. 341 complained of to the Clerk of Justiciary, and appoints the case to Bill of be heard on the^ day of . Advoca- (Signed) C N . ™''- Execution of Service. This Bill of Advocation intimated by me, A B [mes- senger-at-arms or Sheriff-officer^], to C D , Respondent, by delivering to him personally found a full double of the said bill and of the interlocutor thereon, having a just copy of intimation, service, and requisition subjoiaed, in presence of M N , residenter in Edinburgh, this day of , eighteen hundred and years. [Signed by A B .] M N , witness. Interlocutor sustaining a BUI of -Advocation, and remitting to tlv; Justices of the Peace or other inferior Judge or Judges to hear cmd determine the Complaint. Edinburgh, 18 . — The Lord Justice-General, Ait. Lord Justice-Clerk, and Lords Commissioners of Justiciary, haviag Alt. considered this Bill, and heard counsel for the parties : ^ Remit to \the Justices or other inferior Judge or Judges^ to recal the iaterlocutor complained of, and to hear and determine the complaint according to the statute : Fiad the Respondent liable in expenses, which modify to guineas, for which, and one guinea as the dues of extract, decern. (Signed) J I , I.P.D. Interlocutor refusing a Bill of Advocation. Edinburgh, 18 . — The Lord Justice-General, Act. Lord Justice-Clerk, and Lords Commissioners of Justiciary, having Alt. considered this Bill, and heard counsel for the parties. Refuse the BUI :* Find the Complaiaer liable in expenses, -which modify to guineas, for which, and one guinea as the dues of extract, decern. (Signed) J I , I.P.D. ^ Tlie day of hearing is usually left blank. See pp. 168 and 188, supra. ' By 11 and 12 Vict., cap. 79, sec. 6, it is enacted " That it shall be lawful " to serve all indictments, criminal letters, and other writs, and to execute ' ' all writs and warrants issuing f urth of the Court of Justiciary in Scot- " land, either by a macer of Court or a messenger-at-arms, or by any " Sheriff-officer or Steward's officer of the county or stewartry within which " such service or execution shall be made." ^ Sometimes the words "Pass the bill" are inserted. But these words seem scarcely to be applicable where the case is remitted to the inferior Court. The words " Advocate the cause " are not now used. Supra, Tpp. 169 and 167, note 3. * Supra, p. 169. 342 APPENDIX D. D. BILLS OF SUSPENSION AND SUSPENSION AND LIBERATION. Bill of j ^m qJ Suspension of a Summary Conviction and Sentence gjQj, imposing a fine cmd ordaining imprisowment for a specified period failing payment. Unto the Right Honourable the Lord Justice-General, Lord Justice-Clerk, and Lords Commissioners op Justi- ciary, BILL OF SUSPENSION FOR A B [designing him], Com/plainer;^ AGAINST C D [designing him], Respondent. Humbly means and shews your Servitor, A B , Complainer, That the complainer is under the necessity of applying to your Lordships for suspension of a pretended warrant or sentence dated on or about the day of , whereby the Sheriff- substitute [or other inferior Judge or Judges] at , found the complainer guilty of [here describe the crime or offence], and therefore filled and amerciated him in the sum of sterling, payable to the Procurator- Fiscal of Court, and failing payment decerned and ordained the complainer to be removed from the bar and to be imprisoned in the prison of untU he should pay said fine, but said period of imprisonment not to exceed days from the date of said sentence, the said sen- tence being pronounced upon an application at the instance of C D , Procurator-Fiscal of Court, against the com- plainer, most wrongously and unjustly, as will appear to your Lordships from the annexed Statement of Facts and Note of Pleas in Law. Therefore the complainer prays your Lordships to grant wa/rrant for serving a copy of this Bill and deliver- ance thereon on the said D , the re- spondent; and further, to grant wa/rrant ordaining the Clerk of the Sheriff (or other) Court at to transmit the whole proceedings hereinafter mentioned to the Clerh of Justiciwry ; to suspend the wa/rrant or sentence complained of simpliciter ; and to ■ Or suspender. APPENDIX D. 343 find the suspender entitled to expenses ; or to do other- Bill of wise or further in tlie premises as to your Lordships Suspen- may seem proper. According to Justice. [Signed by Counsel or Agent.] [Here follow Statement of Facts amd Note of Pleas in Lam. For Fxecution of Service and Interlocutors see Appendix C, p. SJfl, supra, amd Appendix D, No. 2, infra, p. 344-} 2. Bill of Suspension and Liberation where the Complainer has been summarily convicted, and sentenced to imrnediate im- priso^iTtient. Unto the Right Honourable the Lord Justice-General, Lord Justice-Clerk, and Lords Commissioners op Justi- ciary, BILL OF SUSPENSION AND LIBERATION for A B [designing Mm], Com,plainer [or Suspender^ ; against C D [designing him]. Respondent. Humbly means and shews your Servitor, A B , Complainer, That the complainer is under the necessity of applying to your Lordships for suspension of a pi-etended conviction and sentence, dated on or about the day of , whereby W G , Esq., SheEriff-substitute at , found the complainer guilty of the crime of theft, as charged in a summary complaint at the respondent's instance, and therefore ordained the complainer to be removed from the bar and to be imprisoned in the prison of for a period of 60 days from the date of the said conviction and sentence, most wrongously and unjustly, as will appear to your Lordships from the annexed Statement of Facts and Note of Pleas in Law. That the complainer, having been imprisoned in the prison of under the aforesaid conviction and sentence, also prays for liberation. That he is desirous of obtaining interim liberation, and submits that in the circumstances he is entitled to interim liberation without caution ; but if necessary he is willing to find caution in common form to return to prison and undergo the remainder of his sentence in the event of this bill being refused. Tlierefure the complainer prays your Lordships to grant warramtfor serving this Bill on the said G D , and for the iransmis,sron of the whole proceedings comr 344 APPENDIX D. Bill oi' Suspen- sion AND IjIBERA- TION. plained of to the Clerk of Justiciary ; to suspend the said pretended conviction and sentence simpliciter ; cmd to ordain the cow/plainer to he immediately set at liberty, if not already liberated ad interim, and to find the compla/iner entitled to expenses ; in the meantime to grant interim liberation as craved ; or to do otherwise or further in the premises as to yowr Lordships may seem proper. [Signed by Counsel or Agent.] Act. Alt. Present — The Corn- plainer persna- ally.i First Interlocutor. Edinburgh, 18 . — Having considered the foregoing Bill, Grants warrant for serving a copy thereof and of this deliverance on the therein named D ; and further grants warrant for and ordains transmission of the pro- ceedings complained of to the Clerk of Justiciary ; and appoints the case to be heard on the day of : Meantime grants warrant for the liberation of the Complainer on his finding caution in the Court Boots of that he shall return to prison, and undergo the remainder of the sentence complained of in the event of this Bill being refused, and that under the penalty of £ sterling. (Signed) C N Execution of Service as in Appendix C, p. 341- Interlocutor passing the BUI, Edinbwrgh, 18 . — The Lord Justice- General, Lord Justice-Clerk, and Lords Commissioners of Justi- ciary, having considered this BUI, and heard counsel for the parties,^ Pass the Bill : Suspend the conviction and sentence complained of simpliciter [If the compla/iner is still in prison add. Ordain the Complainer to be instantly set at liberty, and decern] : Find the Respondent liable in expenses : Modify the same to £, , for which, and one guinea as the dues of extract, decern. (Signed) J I ,I.P.D. AH. Alt. Present — The Com- plainer person- ally.! Interlocutor refusing the BUI. Edinbwrgh, 18 . — ^The Lord Justice-General, Lord Justice-Clerk, and Lords Commissioners of Justiciary, having considered this BUI, and heard counsel for the parties. Refuse the BUI : Find the Complainer liable in expenses : Modify the same to £ , for which, and one guinea as the dues of extract, decern. (Signed) J I , I.P.D. 1 See 38 and 39 Viet, cap. 62, sec. 10, supra, p. 177. ' When the Court pass the bill they usually insert findings of their reasons for doingso in the interlocutor. See p. 181, supra. APPENDIX D. 345 3. Bill of Suspension and Liberation where the Gompladner has been Bill of convicted on the verdict of am, Assize, and sentenced to imprison- „^^^ ,„'„ ment. Libera- tion. BILL OF SUSPENSION AND LIBEEATION, Andrew Clendinnen AGAINST Peter Eodger and George Eodger. Unto the Right Honourable the Lord Justice-General, Lord Justice-Clerk, and Lords Commissioners of Justiciary, BILL OF SUSPENSION AND LIBERATION FOR Andrew Clendinnen, presently prisoner in tte prison of Selkirk, Complainer, AGAINST Peter Rodger and George Rodger, Writers in Selkirk, Procurators-Fiscal for Selkirkshire, Respondents, Humbly Sheweth, That of this date sentence was pronounced by the Sheriff of Nov. 1, Roxburgh, Berwick and Selkirk upon the complainer under a ^^^^• criminal libel at the instance of the said respondents, Procurators- Fiscal of Court for the public interest, against the complainer, whereby the said Sheriff adjudged the complainer to be imprisoned in the prison of Selkirk for the period of three calendar months from this date, and thereafter set at liberty, and granted warrant Nov. 1, to all concerned accordingly, most wrongously and unjustly, as will ^^^^■ appear to your Lordships from the annexed Statement of Facts and note of Pleas in Law. That the complainer feels aggrieved by the said sentence, and is under the necessity of applying to your Lordships for suspension of the same and for liberation. May it therefore please your Lordships simpliciter to sus- pend the said sentence and whole grounds and wa/rrants thereof, a/nd all that has followed thereon ; and also to grant warrant charging the Keeper of the Prison of Selkirk to set the com,plainer at liberty; and at all events to gra/nt warrant for the vm/mediate liberation of the complainer upon his finding caution to such an amount as may be fixed by yowr Lordships to return to 346 APPENDIX D. Bill of Suspen- sion AND Libera- tion. prison in the event of tJie present hill of suspension and liberation being ultimately refused ; and fv/rther, to grant warrant ordaining the Sheriff-Clerh at Selkirk or other custodier of tlie proceedings at tlie instance of the respondents against the coinplain&r, to tra/nsmit the same to the Clerk of Justiciary, amd to find tlie eomplainer entitled to expenses ; or to do otherwise or further in the premises as to your Lordships shall seem proper. According to Justice, 1868," and on the 5th day of April current, were duly convicted by the Sheriff-substitute of Mid-Lothian, and adjudged to forfeit and pay the sum of Five shillings sterling each, and expenses. That they will answer and abide by the judgment of the superior Court in the appeal, and pay the costs, should any be awarded by that Court, and that under a penalty of Fifty pounds sterling. — Im WITNESS WHEEEOF. [Testing Cl