Scottish Court of Session Decisions

Macpherson, vintner in Inverness, applied to the magistrates to grant a certificate in order to obtain a removal of his license for retailing spirits and ales, and to transfer it to a new house, to which he was about to remove at the ensuing term of Whitsunday. The magistrates refused the application, and Macpherson appealed to the Quarter Sessions, craving the justices “to find that the petitioner was entitled to a renewal of his foresaid certificate, and that the magistrates of Inverness had no right to refuse the same; and to grant a renewal of the petitioner's license accordingly.” The justices “sustained the appeal, recalled the decision complained of found the appellant entitled to the renewal of his certificate claimed by him, and they directed the town-clerk to issue such certificate to him in the usual form, in terms of law, and decerned.” Macpherson applied to Campbell Mackintosh, town-clerk of Inverness, to issue a certificate to him, in terms of this judgment, but Mackintosh refused. In so doing, he acted under the instructions of the magistrates, who considered that their judgment was not subject to the review of the Quarter Sessions. Macpherson caused a formal intimation of the extracted decree to be made to Mackintosh, and served a protest on him, after which he presented a petition to the Sheriff, setting forth, that, by sec. 16 of 9, G. IV. c. 58, it is enacted, “That if any clerk of the peace, or town-clerk respectively, shall knowingly and wilfully refuse to deliver such certificate to any person duly authorized as aforesaid to receive the same, every such clerk shall, for every such offence, forfeit the sum of £20, to be recovered by any person who will prosecute for the same before the Sheriff of the county.” He craved the Sheriff “to decern and ordain the said Campbell Mackintosh forthwith to issue and deliver to the petitioner the foresaid certificate, for the purpose of his obtaining a renewal and continuance of his license, as aforesaid; and also, to find and declare, that the said Campbell Mackintosh has, in direct violation and contempt of the provisions and enactments of the foresaid Act of Parliament, and particularly of the 16th section thereof, knowingly and wilfully refused to deliver the said certificate to the petitioner, and has thereby incurred the penalty or forfeiture of the sum of £20 sterling, as, by the said act made and provided, and to decern and ordain the said Campbell Mackintosh to make payment to the petitioner of the foresaid sum of £20 sterling accordingly.”

Mackintosh lodged answers, which were followed by replies and duplies, after which the Sheriff “repelled the objection to the competency of this action, found that the defender, in his official capacity, is bound, by the final judgment of the Quarter Sessions, to issue, in the petitioner's favour, the certificate thereby directed to be granted to him, in the same manner as he would have been bound to do if he had been so authorized by the magistrates of Inverness; and therefore ordained the defender forthwith to issue and deliver the said certificate to the pursuer in the usual form and manner, and for the purpose mentioned in the petition; and decerned accordingly: Found that the defender, by knowingly and wilfully refusing to grant the said certificate when required by the petitioner, has incurred the statutory penalty of £20 sterling; and decerned against him, at the complainer's instance, for payment thereof: And found the defender liable in the expense of process.”

Mackintosh presented a bill of advocation of this judgment of the Sheriff, on which the Lord Ordinary, (Balgray,) on 4th August, 1834, pronounced this interlocutor:—“Passes this bill in terms of the Judicature Act.” A note was then lodged on the part of Macpherson, founding on sec. 26 of 9 G. IV. c. 58, which enacts, “That no process of review by any superior Court of the judgments to be pronounced under this act by such Justices of the Peace, Quarter Sessions, or Sheriffs, shall be competent, either by advocation, suspension, reduction, or otherwise.”

The Lord Ordinary, on consideration of the note, “in respect that the bill of advocation was passed in the usual way, and in common form, and the act of 9 G. IV. c. 58, not brought under consideration, and in respect the Lord Ordinary has no power to recal his former interlocutor, allowed the complainer to carry the case before the Court, and prohibited the expeding of the letters till the first box-day, and if a reclaiming note is then given in, till the same shall be disposed of in common form.”

A reclaiming note was lodged at the box-day, and, on being moved in Court, their Lordships called on the counsel for Mackintosh to support the judgment passing the bill. Mackintosh pleaded, that as a final judgment of a Sheriff was complained of, the 41st section of the Judicature Act applied, which enacted, that “such bills of advocation shall at once be passed by the Lord Ordinary, on caution being found, &c.” In terms of this section, the Lord Ordinary had pronounced an interlocutor passing the bill, and, by force of the statute, as well as according to invariable practice, this judgment was not subject to review in the Inner House. After the letters were expede, it would be open to Macpherson to contend, on the merits of the advocation, that the judgment of the Sheriff could not be touched, being protected by the statute. This was the course wherever an excess of statutory jurisdiction by an inferior Court was alleged. But as the advocator maintained that the judgment of the Sheriff was not within the protection of the statute, 9G. IV. c, 58, he was entitled to have the bill passed, in order to try the question. Macpherson answered, that the power of advocation was expressly cut off by the statute.

Both parties were also heard on the question, whether the process and judgment of the Sheriff was within the statute, so as to cut off the power of review by advocation.

After some doubt had been expressed by the Lord President, whether the Court ought not to pass the bill, in order to try the question raised by Mackintosh, their Lordships concurred in holding that the Sheriff had exercised only that jurisdiction which was conferred on him by the statute, and that, therefore, all review by advocation was cut off. They accordingly altered the interlocutor of the Lord Ordinary, found advocation an incompetent procedure, and subjected Mackintosh in expenses.