10,

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

OF JUSTICIARY.

Smith v.

1924.

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

Reverting for a single moment to the question Gray. of competency, I only desire to add that, in November 19, the circumstances of this case, where there was an oral demand made at the time for a stated case on behalf of the accused, and where a subsequent application for a case was timeously despatched, I should be very slow to sustain such an objection as that taken to the competency 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.

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 recorded 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.

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, because I think he was rightly convicted upon the evidence that was led. Under those circumstances, it seems to me unnecessary to express a concluded opinion upon this matter, which was not fully argued out, and which might require a more elaborate argument in order to a final determination of the question.

[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 stated case has been made. In order to satisfy 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. One 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

OUTER who is designed in it as residing at Oxhill, DumHOUSE. barton, posted to him at that address a regisHarley v. tered post letter containing a copy of the Harley. summons and a citation. The letter as posted was returned, however, through the post office to the clerk of Court, with the following marking thereon-" Gone abroad."

November 14,

1924.

On the case being presented to the clerk of Court for calling it was explained that according to the pursuer's information, the co-defender had resided at Oxhill for upwards of forty days before the date of citation. The clerk of Court, in view of the terms of the marking, felt doubt as to whether the summons had been duly executed against the co-defender, and accordingly declined to accept the case for calling unless and until the pursuer had first enrolled the case in the Motion Roll; and, with leave of the Court, had amended the summons by adding to the condescendence an amendment to the following effect, viz. that at the date of citation the co-defender was subject to the jurisdiction of this Court, and was duly cited at his residence at Oxhill, Dumbarton, by registered letter, which had since been returned to the clerk of Court.

Thereupon counsel for the pursuer appeared at the bar, and moved me to direct the clerk of Court to accept the case for calling. Counsel stated that as matter of fact the co-defender at the date of citation had a domicile of citation in Scotland, but maintained that at this stage the pursuer was not bound and ought not to be required to aver that fact, and further maintained that the amendment could not be competently authorised by me as Lord Ordinary.

In my opinion these contentions are not in accordance with either principle or practice.

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

marking on the returned letter, however, doubt was thrown on the validity of the citation, because, if at the date of citation the codefender had gone abroad, and by that date he had been furth of Scotland for upwards of forty days, he would not then have been properly cited at the residence which had previously been occupied by him. On the assumption figured there would have been no valid execution of the summons against the co-defender and the induciæ, instead of having expired when the case was presented for calling, would not even have begun to run.

In the second place, I am of opinion that the objection of incompetency is sufficiently met and excluded by these considerations, viz. that the pursuer had elected to call the summons before me as Lord Ordinary by tendering the process to the clerk of Court for calling, and by the subsequent motion made by counsel for the pursuer at my bar to the effect that I should deal with the case judicially.

With reference to the argument submitted to me, I think it right to add that what I have said is in no way inconsistent with the procedure adopted, before a case has come to depend before a Lord Ordinary, of applying to the Inner House in session (or to the Lord Ordinary on the Bills in vacation) for a commission to take the examination of witnesses to lie in retentis. That procedure arose, because from the first the power of allowing such examinations was confined to the Inner House and was extended to the Lord Ordinary on the Bills by Act of Sederunt of 11th July 1828; but whenever the case has come to depend before a Lord Ordinary the application falls to be made to him (Mackay's Court of Session Practice, Vol. I. p. 78).

For the reasons which I have given I will accordingly in hoc statu refuse the motion made by counsel for the pursuer.

The pursuer thereafter amended the summons by adding to the condescendence an averment that the co-defender had a domicile of citation in Scotland, and was duly cited at Dumbarton, and the summons was then called.

Counsel for Pursuer, Garson; Agent, Michael
W. G.

T signifies Teind Court Decision.

Aberdeenshire Assessor, Cowdray v., V 263.

Aberdeenshire Assessor, M'Kenzie v., V 267.

Accountant of Court v. Wallace's Curator, 167.

Adair v. Adair, O 524, 576, 749.

Adair v. David Colville & Sons Ltd., 698.

Adamson, Botanic Gardens Picture House Ltd. v., 418.
Addie, Robert, & Sons' Collieries Ltd. v. Inland Revenue,
346.

Admiralty, The, Mackenzie Bros. v., 428.

Advocate, H.M., Cameron v., J 599.

British General Assurance Co. Ltd. (S.S. " Spathari "),
Borthwick vυ., 126.

British Motor Trading Corp. Ltd., Bruce v., 723.

British Thomson-Houston Co. Ltd. v. Charlesworth

Peebles & Co., O 61, 77.

British Thomson-Houston Co. Ltd. v. King & Co., O 61.
British Thomson-Houston Co. Ltd. v. Naamlooze Vennoot-
schap Pope's Mataaldraadlampenfabrik and Others, O
61.

Brown v. Campbell, 688.

Brown v. Hilson, J 35.

Bruce, Assessor for the County of Moray v., V 182.

Bruce v. British Motor Trading Corp. Ltd., 723.

Cadzow Coal Co. Ltd. v. Hassan, 625.

Cadzow Coal Co. Ltd., Hutchison v., 327.

Cambitsis v. Norwich Union Fire Insurance Society Ltd.,
126.

Cameron v. H.M. Advocate, J 599.

Campbell, Brown v., 688.

Campbell, Young v., 73.

Campbeltown Coal Co. Ltd., Duke of Argyll v., 514.

Canadian Pacific Steamship Co. Ltd., M'Ginty v., 782.

Car Mart Ltd. - Petrs., 146.

Carstairs v. Spence, 300.

Chalmers v. Glasgow Corporation, 54, Ο 511.

Champdany Jute Co. Ltd. and Another-Petrs., 143.
Charlesworth Peebles & Co., British Thomson-Houston
Co. Ltd. v., Ο 61, 77.

"Clan Gordon," Owners of the, Standard Oil Co. of New
York v., L 20.

Clyde Marine Insurance Co. Ltd., Liquidator of, v. Herbert
Renwick & Co., 41.

Coatbridge, Burgh of, M'Kenna v., 225.

Collins, John Watson Ltd. v., 625.

Colquhoun's Trs., Inland Revenue v., Ο 341.
Colville, David, & Sons Ltd., Adair v., 698.

Co-operative Insurance Society Ltd., Woods v., 529.

Connell v. James Nimmo & Co. Ltd., L 402.
Cooper Scott v. Gill Scott, 204.

Cormack's Trs. v. Inland Revenue, 616.

Couper, Edinburgh Parish Council v., 54.
Cowdenbeath Gas Co. Ltd. v. Fife Assessor, V 270.
Cowdray v. Aberdeenshire Assessor, V 263.

Cramb v. Edinburgh Corporation, O 607.