Scottish Court of Session Decisions

A person convicted of an offence under the Public Health Act 1867, applied to the Sheriff to state a Case for appeal under the provisions of the Summary Prosecutions Act 1875, section 9, but before the case was signed withdrew from the prosecution of his appeal under that Act.— Held that the appeal was not taken till the Case was signed, and that in the circumstances appeal in another way was competent.

The suspender, who is a farmer, was convicted, along with his landlord, by the Sheriff of a contravention of the Public Health (Scotland) Act 1867. The appellant and the landlord both applied to the Sheriff to state a Case under the provisions of the Summary Prosecutions Appeals (Scotland) Act 1875. Caution was found, and the Case was prepared and submitted to the parties, but before it was adjusted and signed the tenant withdrew from the further prosecution of his appeal under that Act. The landlord insisted in his appeal, and the judgment of the Sheriff was reversed. The tenant then brought the present suspension.

Argued for the respondent— The suspension is incompetent. By section 9 of the Summary Prosecutions Appeals (Scotland) Act it is provided, that “any person who shall appeal under the provisions of this Act from any determination of an inferior judge from which he is by law entitled to appeal in any other manner of way to any superior or other court, shall be taken to have abandoned such title to appeal in any such other manner of way as aforesaid.” Here the suspender took an appeal by applying to the Sheriff to state a Case, and he cannot by withdrawing his appeal by minute renew his right to suspond.

Page: 610↓

Review is also excluded by section 108 of the Public Health (Scotland) Act. The suspender has lain bye for four months, until he saw the result of the landlord's appeal, and has so disentitled himself to suspend.

At advising—