Scottish Court of Session Decisions

This was an advocation of a judgment of justices in Ayrshire, dismissing, without inquiry into the facts, a complaint at the instance of the clerks to the Irvine Road Trustees, charging the respondent with an alleged contravention of section 12 of the Ayrshire Road Act of 1847, which enacts that “no house, or building, or erection whatever, other than a wall for the purpose of enclosure, not exceeding 7 feet in height, shall, without the consent of the trustees previously obtained in writing, be erected within the distance of 25 feet from the centre of any of said turnpike roads or highways.” The respondent was proprietor of a house on the south side of the Crossbrae, in the town of Kilwinning, which was a turnpike road of about 31 feet in breadth, and the front wall of the house was therefore only about 15 1 2 feet from the centre of the road; and the complaint stated that in March 1865 the respondent, without consent of the trustees, after having unroofed said house, and taken down nearly the whole of said front wall and said gable, and rebuilt the same adding 3 feet, “which erections and additions to said front wall and gable and part of the said roof were all within 25 feet from the centre of the said turnpike road.”

The respondent appeared before the justices, and pleaded that the allegations set forth in the complaint did not constitute a contravention of section 12 of the Act libelled on; and the justices, by a majority of 4 to 2, sustained this plea and dismissed the complaint.

The complainers advocated, but the Lord Ordinary (Mure) dismissed the advocation as incompetent, on the ground that an appeal should have been taken to the Quarter Sessions. The competency of the avocation had been also objected to, on the ground that under section 28 of the Summary Procedure Act, the jurisdiction to review the justices' decision had been transferred from the Court of Session to the Court of Justiciary. The said section is in the following terms:—“And whereas much inconvenience has resulted from the uncertainty which exists as to the nature of the jurisdiction conferred by various Acts of Parliament, authorising convictions for offences, and the recovery of penalties, and the enforcement of orders by imprisonment upon summary complaint before Sheriffs, Justices, and Magistrates in Scotland, and it is expedient to define the cases in which such jurisdiction shall be held to be of a criminal nature: In all proceedings by way of complaint instituted in Scotland, in virtue of any such statutes as are hereinbefore mentioned, the jurisdiction shall be deemed and taken to be of a criminal nature, where, in pursuance of a conviction or judgment upon such complaint, or as part of such conviction or judgment, the Court shall be required, or shall be authorised, to pronounce sentence of imprisonment against the respondent, or shall be authorised or required, in case of 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 respondent for a period limited to a certain time, at the expiration of which he shall be entitled to liberation; and in all other proceedings instituted by way of complaint, under the authority of any Act of Parliament, the jurisdiction shall be held to be civil: Provided always that nothing contained in this Act shall be construed to affect the right of any party to proceedings taken under this Act to be examined as a witness therein, but such right shall remain as it would have been if this Act had not passed.”

The Lord Ordinary expressed an opinion that this objection was not well founded, but the Court to-day sustained it, and in respect of it dismissed the advocation as incompetent in this Court. The offence charged was of a criminal nature in the sense of section 28, because it was one for which the justices were authorised on summary complaint, in default of payment of a fine, to grant warrant for imprisonment. The Court were not prepared to say that the justices had erred in their construction of the Road Act, but as they were not competent to judge in the matter no judgment was pronounced on this point. The judges were unanimous in thinking that the distinction created by the Summary Procedure Act was

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most inexpedient, and were very desirous to find the means of avoiding its application in this case, but they held that they were tied down by its express language.