HIGH

proved, were entitled to convict the accused of COURT the offence libelled? OF JUSTI

CIARY.

Smith v.

1924.

[His Lordship then dealt with the merits of the case.]

On the merits of the case I have formed an opinion on the same lines as your Lordship, that the appellant is not entitled to have the questions answered in his favour, Reverting for a single moment to the question because I think he was rightly convicted Gray. of competency, I only desire to add that, in upon the evidence that was led. Under November 19, the circumstances of this case, where there was those circumstances, it seems to me unnecesan oral demand made at the time for a stated sary to express a concluded opinion upon this case on behalf of the accused, and where a sub-matter, which was not fully argued out, and sequent application for a case was timeously which might require a more elaborate argudespatched, I should be very slow to sustain ment in order to a final determination of the such an objection as that taken to the com- question. petency of the appeal unless every avenue of escape from that conclusion had been closed. But, in the circumstances, I think it unnecessary to express a formal and concluded opinion upon the subject.

[His Lordship then dealt with another matter which has no bearing on the subject of this report.]

In the circumstances which I have mentioned, so far as I am concerned I suggest that the first two questions should not be answered as being unnecessary.

[His Lordship then dealt with the merits of the case.]

Lord Anderson.-This case seems to me to be a plain and simple one in its facts, and the magistrates' decision might, therefore, have been reviewed on a consideration of Question 6 alone. Difficulties, however, have evolved in the course of the proceedings which have called for five other questions of law for their solution. We heard arguments as to the competency of the appeal and on the merits. Your Lordships have reserved your opinions as to the question of competency; but it appears to me that the points which are raised on the first two questions of law are of general importance in summary procedure, and therefore I do not hesitate to express my own personal opinion on that topic. The point of competency depends upon the terms of section 61 of the Summary Jurisdiction Act of 1908. Now, it seems to me that the object of that section is to secure evidence instantly verifiable that an application for a

Lord Hunter. As regards the question whether this stated case is competently before us, I think the terms of section 61 of the Summary Jurisdiction Act of 1908 seem to contemplate that application for a stated case will be made in writing. At the same time, section 61 is one of several sections dealing with appeal. You have also to consider the provisions of sections 60 and 62. In the present case the appellant, on the day of the trial, asked orally for a stated case, and that is re-stated case has been made. In order to satisfy corded ex facie of the minutes of procedure. He afterwards put in a written application for a stated case, and the date of his application is a date within the five days specified under section 61. The application, however, was not received until the expiry of the five days. Like your Lordship, I have not formed a concluded opinion upon this point, because I do not think it necessary to do so. I entertain doubt as to whether the contention for the public prosecutor, which I think he might well have reserved to raise under more favourable circumstances, is well founded. Reading the different sections together, I am not satisfied that when a magistrate has known all along that a stated case was being asked of him, and there has been despatched a written application within the statutory five days, those circumstances do not constitute substantial compliance with the Act, or, at all events, that the case is not one where a High Court has not got power to prevent the technical failure on the part of the appellant, depriving him entirely of any right on his part to have legal questions determined by this Court.

One

the terms of the section, I am of opinion that
an application for a stated case must conform
to these three conditions: (first) it must be in
writing; (second) it must be signed either by
the accused or by his law agent; and (third) it
must be made within a period of five days after
the date on which judgment was pronounced.
In the present case two attempts were made
to make an application for a stated case.
of these attempts was made on the day of the
trial. It was made orally, and, in my judgment,
that was quite insufficient. The evidence that
an oral application was made is to be found in
the minutes of procedure, the record of the
conviction concluding with the statement that
the accused had applied for a stated case.
In my judgment that is not sufficient, because
it is not signed either by the accused or by his
agent, but appears above the signature of the
judge; and it is not in proper form because
the proper form of minute which should be
followed is to be found in Schedule H to the
Act of 1908, where the form of appropriate
minute is set forth. Accordingly, I am of
opinion that the application for a stated case

REPORTS-1924, SCOTS LAW TIMES.

was not competently and properly made at the conclusion of the trial..

OUTER HOUSE.

(Lord Ashmore.)

14th November 1924.

Harley v. Harley.

815

summons of divorce designed as residing in D-
-Summons with citation sent to him in registered
letter-Letter returned marked "Gone abroad "—____
Case presented for calling with explanation that the
co-defender had resided in D- for over forty days
prior to citation-Clerk of Court declining to accept
case for calling unless the pursuer, with leave of the
Court, amended the summons by adding to the con-
descendence an averment that the co-defender was
subject to the Court's jurisdiction and had been duly
cited-Pursuer moving the Court to direct the clerk
to accept the case for calling-Held that the Lord
Ordinary had jurisdiction to authorise such an amend-
ment, and the pursuer's motion refused in hoc statu.

James Harley brought an action of divorce against Mrs Elizabeth Taylor or Harley, his wife, on the ground of her adultery with William Cowden, against whom the summons contained a conclusion for expenses.

But then the accused's law agent followed this up by sending a written notice of application for a stated case to the clerk of Court, that is to say, an application in proper form was made because it was signed by the agent 177. of the accused. The question, however, is: Was it timeously made? It has been decided Process-Summons-Calling-Citation-Co-defender in a that, in calculating the period, the date of conviction is to be excluded (Hutton, 5 Coup. 274). Excluding, therefore, 28th April, the date of conviction, the period of five days terminated on 3rd May. Now, the magistrates have found in fact that the notice of application for a stated case was posted at Banff on 3rd May, but was not received in Buckie until 5th May. It was, therefore, timeously despatched if not timeously received. It seems to me that the section is to be construed liberally in favour of an accused person who is anxious to have a conviction of which he complains reviewed. So construing it, I have formed the opinion that a written application timeously posted is timeously made in the sense of the Act. This seems to me to be in consonance with what was decided in the case of Charleson ( 4 Coup. 470). It is true that that case was concerned with a different statute, to wit, the Summary Prosecutions Appeals Act of 1875; and a different phrase, the phrase in that Act being "giving notice not "making application." The Court" Gone abroad." held in that case that giving notice does not mean or include getting notice. Now, it seems to me that, by parity of reasoning, it may be held in this case that making application does not mean and include receiving application. Accordingly, it seems to me that the objection as to competency falls to be repelled inasmuch as written notice was timeously despatched on 3rd May. Therefore, if I had been giving effect to these views in reference to the questions, I should have answered Question 1 in the affirmative and Question 2 in the negative. [His Lordship then dealt with the merits of the case.]

Counsel for Appellant, Maclean; Agents,
Drummond & Frazer, S.S.C.-Counsel for
Respondent, Mackintosh; Agents, Morton,
Smart, Macdonald & Prosser, W.S.
W. G. S.

In order to execute the summons against the co-defender, a copy thereof with a citation was sent to him by registered post to Oxhill, Dumbarton, the address at which he was stated in the summons to be residing. The letter containing the summons and citation was returned marked

On presenting the case of calling, the pursuer's agent explained to the clerk of Court that the co-defender had, according to pursuer's information, a domicile of citation in Dumbarton, having resided there for upwards of forty days previously. The clerk of Court having declined to call the summons on the ground that it had not been duly executed, counsel for the pursuer appeared at the bar of the Lord Ordinary (Ashmore), to whom the case was marked, and moved that the clerk of Court should be directed to accept the summons for calling.

On 14th November 1924 the Lord Ordinary (Ashmore) refused the motion in hoc statu.

Lord Ashmore.-In this action of divorce for adultery at the instance of a husband against his wife and a co-defender, a question of procedure has arisen regarding which no explicit authority has been found either in the reported cases or in the text-books.

OUTER HOUSE.

Harley v.
Harley.

The circumstances briefly stated are as follows: The summons contains no conclusion for damages against the co-defender, but does contain a conclusion for expenses against him, and the agent for the pursuer, in order to execute the summons against the co-defender,

November 14,

1924.

In the first place, I think that in the circumstances the clerk of Court was not bound to accept the case for calling, and might have simply declined to accept it. On the other hand, in this case an amendment of the summons on the lines suggested, or a similar statement made by minute lodged in process, would at least have afforded prima facie justification for the calling of the summons. It must be kept in view that the case was presented to the clerk of Court on the assumption that the co-defender had been duly cited and that the inducia had expired. In view of the | Marcus, Solicitor.

INDEX OF CASES

ACCORDING TO NAMES OF PARTIES.

Note. The figures refer to the number of the Page, and not to the number of the Case.

L signifies House of Lords Decision.

O signifies Outer House or Bill Chamber Decision.

J signifies Justiciary Court Decision.

V signifies Lands Valuation Appeal Court and Valuation Appeal Court Decision.
T signifies Teind Court Decision.

Aberdeen Education Authority, Episcopal Church Council Brechin's Trs. and Others, Paton v., 0 513.
v., 490.

Dexter & Carpenter, Incorporated v. Waugh & Robertson, Herbert Renwick & Co., Liquidator of Clyde Marine
Ltd., et e contra, 765.

Dundee Ice and Cold Storage Co. Ltd., Ballingall & Son Hughes' Tr. v. Hughes, 764.
Ltd. v., 155.

Dunn v. Scottish Co-operative Wholesale Society Ltd., 147.
Dunn's Trs. v. Dunn, 479.

Edinburgh Society of Accountants and Others v. Scottish Inland Revenue Commissioners v. Earl of Haddington,
Board of Health, O 199.

Inland Revenue Commissioners, Moorhead, Sons & Co.
Ltd. v., 189.

Episcopal Church Council V. Aberdeen Education Inland Revenue Commissioners v. Wemyss, 233.
Authority, 490.