Scottish Court of Session Decisions

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Cite as: [1883] ScotLR 20_658, [1883] SLR 20_658

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SCOTTISH_SLR_Court_of_Session

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Court of Session.

Wednesday, June 13. 1883.

20 SLR 658

Hutton

v.

Garland and Another.

Subject_1Justiciary Cases
Subject_2Case for Appeal
Subject_3Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. cap. 62), sec. 3.
Facts:

The Summary Prosecutions Appeals Act 1875 provides, that in order to an appeal being taken against the decision in point of law of an inferior judge, the appellant shall, within three days after the determination of the inferior judge, find caution for or consign a sum sufficient to meet any penalty imposed, and also the costs of the appeal.

A person who had been convicted of a police offence on a Saturday, desired the magistrate by whom he had been convicted to state a Case for the consideration of the High Court of Justiciary in terms of the Summary Prosecutions Appeals (Scotland) Act 1875, sec. 3, but did not lodge the necessary sum to meet the costs of appeal, as directed by the 1st sub-section of the same clause, till the following Wednesday. Held that the Sunday must be counted as one of the days, and that therefore he had not complied with the provisions of the statute, and was not entitled to have a Case stated.

Headnote:

The Summary Prosecutions Appeals (Scotland) Act 1875, sec. 3, provides—“On an inferior judge hearing and determining any cause, either party to the cause may, if dissatisfied with the judge's
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determination as erroneous in point of law, appeal thereagainst notwithstanding any provision contained in the Act under which such cause shall have been brought excluding appeals or review in any manner of way of any determination, judgment, or conviction, or complaint under such Act, by himself or his agent applying in writing within three days after such determination to the inferior judge to state and sign a Case setting forth the facts and the grounds of such determination, for the opinion thereon of a superior court of law, as hereinafter provided; and on any such application being made the following provisions shall have effect—1. The appellant shall not be entitled to have a Case stated and delivered to him unless within the said three days he shall (1) lodge in the hands of the clerk of court a bond with sufficient cautioner for answering and abiding by the judgment of the superior court in the appeal, and paying the costs should any be awarded by that court, or otherwise, in the discretion of the inferior judge, shall consign in the hands of clerk of court such sum as may be fixed by the inferior judge to meet the penalty awarded, if any, and the said costs of the superior court.”

John Hutton was convicted of assault at the Leith Police Court on Saturday 19th May 1883. He was sentenced to pay a fine of 7s. 6d. He paid the fine, and on Tuesday 22d applied in writing, through his agent, to have a Case stated for appeal to the High Court of Justiciary. A reply was received by his agent from the Clerk of Court the same day, stating that before any Case could be stated the sum of £8 must be lodged in the Clerk's hands in terms of the Summary Prosecutions Appeals (Scotland) Act 1875, section 3, sub-section 1. On the morning of Wednesday the 23d May the money was sent to the Clerk, who refused to receive it, on the ground that the time for lodging it had expired.

In these circumstances Hutton lodged this application, to which the Magistrate and Clerk of Court were called as respondents, to have the former ordained to state a Case for the consideration of the Court.

Argued for the Complainer—The application for a Case had been lodged in time. Sunday must not be counted as a day in the meaning of the Act, which allowed three working days. The sum required was lodged. The Act was passed to admit of appeals, and should not be rigidly construed against admitting them.

Authorities—Moncreiff on Review, 202; Jex Blake v. Craig, March 16, 1871, 9 Macph. 715; Russell v. Russell, November 12, 1874, 2 R. 82; Court of Session Act 1868, sec. 28.

Judgment:

Lord Young—When this case was first presented to us, I understood it was a case in which a convicted person had stated to the Magistrate his desire to have a Case stated for the Appeal Court, and that the Magistrate had refused to grant a Case, at the same time refusing to give a certificate of refusal, as provided by statute. But it has been explained to us now that the case is not one of that kind, but that the Magistrate refused to state a Case on the ground that the statutory conditions had not been complied with, and if that is so the Magistrate was not only entitled to refuse to grant a Case, but even bound to do so. The question here depends upon the consideration, whether when one of the days within which a convicted person is entitled to appeal to this Court is a Sunday, that day is to be counted as a dies non. The trial took place upon the Saturday, and the appellant did not comply with the conditions, upon which alone he was entitled to have a Case stated, till the Wednesday following. If Wednesday is to be counted as the third day from Saturday, then he is entitled to have a Case stated. Three days is no doubt a short period, and to deduct one working day may no doubt be a serious matter, but I am afraid the law is quite settled. The short period of three days within which an appeal may be taken is fixed by the Legislature, and Sunday is counted one of them, and looking at the English authorities on the construction of an analogous statute, the point seems quite settled in that country. Of course, if the Sunday is the last day of the three, and it is impossible to lodge the papers at the office because it is shut, then it cannot be counted, and Monday must be taken as the last of the three days appointed.

I am relieved of a feeling of anything like practical hardship in not allowing a Case, because from the note I see that the objection to the decision is insufficient evidence, the party in the case in the Police Court being too drunk at the time the assault was committed on him to remember anything of the occurrence.

The Lord Justice-Clerk and Lord Craighill concurred.

The Court refused the application.

Counsel:

Counsel for Petitioner— Rhind. Agent— Andrew Clark, S.S.C.

Counsel for Respondent— Moncreiff. Agent— J. Campbell Irons, S.S.C.
1883