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Cite as: [1878] SLR 15_594_1, [1878] ScotLR 15_594_1

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SCOTTISH_SLR_Court_of_Session

Page: 594↓

Court of Session Inner House Second Division.

[Exchequer Case.

Thursday, June 6. 1878.

15 SLR 594_1

Sumner

v.

Middleton.

Subject_1Process
Subject_2Appeal
Subject_3Statute 33 and 34 Vict. cap. 57 (Gun Licence Act)
Subject_4Statute 7 and 8 Geo. IV. cap. 53, (General Management and Regulation Excise Act) secs. 83 and 84.

Expenses. — Statute, 7 and 8 Geo. IV. cap. 53 (General Management and Regulation Excise Act) secs. 83 and 84.
Facts:

By the Statute 7 and 8 Geo. IV. cap. 53, see. 83, an appeal against a judgment by Justices of Peace is directed to be taken “at and immediately upon the giving of the judgment.” Held that an appeal taken ten days after was incompetent.

Opinions ( per curiam) that after judgment has been pronounced by the Justices at Quarter Sessions it is irregular to state a case for the opinion and direction of the Court.

Held, distinguishing the case from that of R. v. Beattie (December 18, 1866, 5 Macph. 191),
Page: 595↓
that the Court of Exchequer has power to award expenses where a case has been irregularly or incompetently stated for their opinion, under the Act 7 and 8 Geo. IV. cap. 53, sec. 84.

Headnote:

This was a case from the Quarter Sessions of Aberdeenshire for the opinion and judgment of the Court of Exchequer.

William Middleton, farmer, Greystone, was prosecuted under the Gun Licence Act 1870 (33 and 34 Vict. cap. 57), see. 7, for having carried and used a gun without a licence. On the 19th December 1877 the complaint was heard at Petty Sessions before the Justices of the county of Aberdeen, and dismissed not proven. On the 29th of December the supervisor of Excise served notice of appeal, and the case was heard before the Quarter Sessions on 22d January 1878.

The respondent objected to the competency of the appeal, in respect that notice of it had not been given in writing “at and immediately upon the giving of the judgment, ” as required by 7 and 8 Geo. IV. cap. 53, sec. 83, but ten days after. That section further provided that if the appeal was against a conviction in a penalty, the amount of the penalty inflicted should, within three days after the giving of the judgment, be deposited with the officers of Excise.

The Justices sustained the objection, and dismissed the appeal by a majority of four to three.

On the craving of the appellant James Sumner, one of Her Majesty's officers of Excise, this case was stated for the opinion of the Court of Exchequer in terms of section 84 of the above statute. That section, after stating what the powers of Quarter Sessions on appeal were, went on thus—“Provided always, that it shall be lawful for such Commissioners of Appeal, and Justices of the Peace at such General Quarter Sessions … at their discretion to state the facts of any case on which such appeal shall be made specially for the opinion and direction of the Court of Exchequer” &c.

Argued for the appellant—The words “immediately after” were not peremptory; they inferred a reasonable time after, which time must be judged by the circumstances of the case.

Authorities— Christie v. Richardson, 10 M. and W. 688; Reg. v. Aston, 19 L.J. 237, M.C.; Bell's Law of Excise, 62; Douglas’ Excise Law, 86.

The respondent was not called upon, and it was not then stated that he had an objection to the competency of the appeal under the 84th section of the Act above quoted.

At advising—

Judgment:

Lord Justice-Clerk—I do not think the authorities which have been quoted have any bearing on the present case. The word “immediately” in such cases as these means without any undue delay. Here the words are different, and the subject-matter is also different. The words are “at and immediately upon the giving of the judgment.” Now, “at and immediately” means coram, while the Court is still sitting; that, I think, is the meaning of it, and I think that that was the contemplation of the statute. I do not say that the notice would be too late if given on the same day as judgment was pronounced after an adjournment by the Court, but, in my opinion, what the statute requires is that the appeal shall be notified while the identical Justices are sitting. Therefore a delay of days cannot be given, and if anything could make that clear it is the provision in regard to appeal against a conviction, in which only three days is allowed. I think the statute does not bear out the argument for the appellant, and therefore I am of opinion that the appeal was not competent.

Lords Ormidale and Gifford concurred.

On a motion by the respondent for expenses—

Argued for the appellant—It was out of the power of the Court to award expenses against the Crown— White v. Simpson, Nov. 28, 1862, 1 Macph. 72; R. v. Beattie, Dec. 18, 1866, 5 Macph. 191; R. v. Gilroys, March 20, 1866, 4 Macph. 656, where the judgment of the Quarter Sessions was for the defendant, and a case stated at the request of the Crown; and R. v. Caird, Jan. 18, 1867, 5 Macph. 288, where, after conviction, a case was stated on the craving of the defendant. Alison v. Watson, Dec. 2, 1862, 1 Macph. 87, was a cause in the Court of Exchequer.

Argued for respondent—There was a distinction between the present case and that of Beattie. Here the Justices had decided, and the case was incompetently stated. In Beattie's case, the Justices being equally divided, stated a case for the advice of the Court, and decided upon that advice.

Authorities— Quarter Sessions of Perth, Nov. 30 and Dec. 18, 1861, 24 D. 221; Alison v. Watson, Dec. 2, 1862, 1 Macph. 87.

The Court took time to consider the question of expenses.

At advising—

Lord Ormidale—It was right that we should take some little time to consider our judgment upon this question of expenses, as it may be a precedent for other cases. For my own part, I have had no doubt whatever. The only obstacle that could be suggested to our giving expenses to the winning party was the case of the Queen v. Beattie. Now, it appears to me that that case is easily distinguishable. In that case the Quarter Sessions had come to no conclusion themselves; they were equally divided, and therefore they had power under the statute to state a case in order that they might receive the direction of the Supreme Court. The report does not bear that it was at the request of either party that this was done—indeed we know it was not, but ex proprio motu of the Justices themselves. The present case is not like that; here the Quarter Sessions had come to a conclusion by a majority dismissing the appeal. This was a final and conclusive judgment, and it seems to me altogether senseless and absurd that the Quarter Sessions after that decision should state a case for the direction of the Court of Exchequer. Accordingly the Quarter Sessions did not themselves state a case, but they granted it on the craving of the appellant. They did not want it themselves, for they had decided the whole matter, but as the Excise were not satisfied they granted them a case. The Excise have been found to be wrong as to the merits of the case, and it also appears to me that we might have dismissed the appeal as incompetent.

The Excise therefore have brought this case unsuccessfully, and in my opinion incompetently,

Page: 596↓

and therefore I think we are clearly entitled to give expenses against them. This is just an Exchequer cause, and we, sitting as the Court of Exchequer, are entitled to award expenses to or against the Exchequer in such causes. I think, therefore, that we ought to sustain the respondent's motion for expenses.

Lord Gifford—In this case, at the hearing we disposed of the whole merits of the case on the showing of the appellant's counsel, and without calling on the counsel for the respondent, and it was only after this had been done that the question of expenses arose.

But the question of expenses involved a point which the respondent's counsel would have taken earlier if there had been opportunity, namely, that the case itself had been incompetently stated, having been stated not before but after the judgment of the Quarter Sessions had been pronounced, and that therefore it could not be in terms of the statute a case for the direction and guidance of the Quarter Sessions, at least in the particular prosecution now in question.

I am inclined to think this objection well founded. The intention of the statute was to enable the Justices to obtain directions how they were to decide any particular question of law. When the Justices ask such directions they should suspend their decision until the directions are obtained. Here they have not done so. They have decided the case out and out by a judgment which is not subject to any review or appeal, but which is in itself final, and then, on the request of the unsuccessful party who has lost his case, they state this Special Case for the opinion of the Court of Exchequer, not to enable the Justices to decide, but simply asking whether the decision which they have given, and which cannot now be altered, is right or wrong. The accused stands assoilzied by a majority of his judges, and there is no power anywhere to change this acquittal into a decree of condemnation. Now if on the craving of an excise officer an incompetent case is obtained, I think the respondent is entitled to the expense of opposing it, and, on this ground alone, I am for giving expenses against the appellant.

It may be otherwise when a case is honestly stated by the Justices for their own guidance, and where they delay judgment. It may also be otherwise even when judgment is given conditionally and subject to a case stated to Exchequer, and in this view I do not think it is necessary to consider the effect of the decisions in the cases of White v. Simpson and The Queen v. Beattie, and other cases referred to at the Bar.

Lord Justice-Clerk—I have come to the same conclusion. In regard to the question, whether Justices have the power to award expenses against the Crown, I should not have thought it right to decide it, after the various expressions of opinion in the cases quoted without consulting their Lordships of the other Division. For myself, I have no doubt that we have power to award expenses, although there are expressions of opinion to the contrary in various cases, such as those of White v. Simpson and R. v. Gilroy.

In the case of Alison v. Watson the Court had no difficulty in giving expenses to the Crown. In view of these contrary opinions, I am not going to lay down that it is out of our power to give expenses against the Crown. But here we have a case stated which is not in terms of the statute. The case there provided for is one for the guidance of the Quarter Sessions; it may be open to them to decide the case before coming here, but the stated case must bear that the question is still open. This is not the case here, and I agree with your Lordships that we are quite entitled to give the respondent his expenses.

The opinion of the Court was that the appeal from the Petty to the Quarter Sessions was incompetent, and expenses were given against the appellant.

Counsel:

Counsel for Appellant—Solicitor-General (Macdonald)— Rutherfurd. Agent—Solicitor of Inland Revenue.

Counsel for Respondent—Dean of Faculty (Fraser)— Rhind. Agent— W. G. Roy, S.S.C.
1878