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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v. Andersons [1867] ScotLR 5_135_1 (24 December 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0135_1.html
Cite as: [1867] SLR 5_135_1, [1867] ScotLR 5_135_1
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SCOTTISH_SLR_Court_of_Session
Page: 135↓
Court of Session Inner House First Division.
v.
Facts:
In a suspension of a conviction obtained under sec. 11 of the Embezzlement Act, the conviction bearing to proceed on the deposition of two witnesses, manufacturers, and on the failure of the party to give a satisfactory account of how he came by the stuff; held (1) that the deposition was unnecessary, and (2) that the judgment rightly ordained payment of the penalty to the clerk of court, he being the proper immediate recipient, although ultimately the penalty was to be divided between the informer and the poor of the parish.
Page: 136↓
This was a suspension of a conviction obtained under the Embezzlement Act, 17 Geo. III., c. 56. The suspender alleged that on 20th November last he was waiting at the Newburgh station of the North British Railway, between seven and eight o'clock in the evening, when a policeman came up and asked him if two bags, lying on the platform, belonged to him. On his replying that they did, he and the bags were taken to the Town-house of Newburgh. He was then taken before two justices. The respondents, T. S. Anderson and W. Anderson, manufacturers, compeared and made deposition, and between nine and ten at night a sentence was pronounced against him, bearing that the justices, in respect of the depositions of the Andersons, and in respect of Smith refusing to give any satisfactory account how he came in possession of the yarns, or to produce the party from whom he purchased them, found him guilty of a misdemeanour in terms of 17 Geo. III., c. 56, sec. 11, and in terms of sec. 14 fined him £20, to be paid to the clerk of Court at Newburgh within seven days, warrant of distress to issue on failure of payment within the specified time.
Smith now contended that these proceedings were illegal and oppressive. No complaint had been made by any one under sec. 10, or that the yarns in the bags were suspected to be purloined, and no reasonable suspicion existed before the apprehension that the yarn was embezzled. The deposition on which the judgment proceeded was not signed and authenticated by the respondents; and the judgment was null, as not being in terms of the statute, inasmuch as it did not give one half to the informer and the other half to charitable purposes, but ordained payment to the clerk of court at Newburgh.
Section 11 enacts that “every peace-officer, constable, … &c., shall and may apprehend, or cause to be apprehended, all and every person or persons who may reasonably be suspected of having, or carrying, or any ways conveying, at any time after sun setting and before sun rising, any of such materials suspected of being purloined or embezzled, and the same, together with such person or persons, as soon as convenient, may be conveyed or carried before two justices for the county, town, or place, within which the suspected person or persons may be apprehended; and if the person or persons so apprehended in conveying any such materials shall not produce the party or parties duly entitled to dispose thereof, from whom he, she, or they, bought or received the same, or some other credible witness, to testify upon oath or (being of the people called Quakers) upon solemn affirmation, to the sale or delivery of the said materials, or shall not give an account to the satisfaction of such justices, how he, she, or they came by the same; then the said person or persons so apprehended shall be deemed and adjudged guilty of a misdemeanour, and be punished in manner herein aftermentioned, although no proof shall be given to whom such materials belong.”
Section 14 provides that every person deemed guilty of a misdemeanour, under the 11th and other sections, “shall, for every such misdemeanour, forfeit, for the first offence, the sum of twenty pounds … of which forfeiture one moiety shall be paid to the informer, and the other moiety to and amongst the poor of the parish, town, or place where such conviction shall be, or to such public charity or charities as the justices convicting shall appoint.”
Scott for complainer.
Fraser, for respondent, was not called on.
Lord Justice-General—I have no doubt in this case. This appears to me to be a very good conviction under the 11th section of the Act. It is not an Act under which it is very easy to have the proceedings properly conducted. In former times, especially, they were very badly conducted, and the practitioners who acted for the manufacturers were in the habit of bungling the procedure very considerably; but here the clerk of court went about the matter well, both as to calligraphy and composition. The proceedings are entirely under the 11th section, and the penalty is under the 14th. We have nothing to do with the 10th section. That section authorises justices, in certain circumstances, to issue search warrants for the purpose of searching dwelling-houses, out-houses, and other places, and, if the materials suspected to be embezzled are found, the parties in whose hands they are found are to be brought before two justices, and if they shall not give an account to the satisfaction of the justices how they came by the same, they are to be deemed guilty of a misdemeanour, and punished, although no proof be given to whom such materials belong. But that is quite different from the present case. The suspender tells us the nature of this case. He had two bags, and was waiting at a railway station, when he was apprehended and carried before two justices. That was after eight o'clock at night. Is not that the very case for which the 11th section provides? It provides that any constable may apprehend any person who is reasonably suspected of having or carrying embezzled materials, and convey the same along with such person before two justices, and if such person shall not produce the party from whom he bought the same, or give a satisfactory account of how he came by the same, he shall be deemed guilty of a misdemeanour, and punished, although no proof be given to whom the materials belong. Here, the complainer was brought before two justices, and the account he gives is as unsatisfactory as could be, for he could give no account at all, and said he would give no account, and therefore he was convicted. I do not think it was necessary to have the evidence of the Messrs Anderson at all. No doubt it was satisfactory to the minds of the parties to have it, and it does no harm. The conviction is in good form, and in ordering the penalty to be paid to the clerk of court, they take the ordinary procedure in cases where there is no special provision as to payment or recovery. The clerk of court is the proper party to receive all penalties that may be adjudged, unless the statute directs otherwise. There is no special direction here. All that is said is, that ultimately one-half shall go to the informer, and one-half to the poor of the parish; but the proper immediate recipient of all such penalties is the clerk of court.
The other judges concurred.
Solicitors: Agent for Complainer— James Bell, S.S.C.
Agents for Respondents— Macgregor & Barclay, S.S.C.