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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Crosbie v. M'Minn [1866] ScotLR 2_74 (8 June 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0074.html Cite as: [1866] SLR 2_74, [1866] ScotLR 2_74 |
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Page: 74↓
(1) Complaint, conviction, and sentence alleged to be under this Act, reduced in respect the complaint did not charge an offence, and the Judge had therefore no jurisdiction to try it; (2) Action of reduction not barred by section 35 of the Act in respect it did not protect proceedings not conducted under the statute.
This was an action of reduction of a complaint, conviction, and sentence against the pursuer, in the Burgh Court of Dumfries, for alleged breach of her hotel certificate, obtained under the 25 and 26 Vict., cap. 35. The certificate, inter alia, provides that the pursuer “do not keep open house, or permit or suffer any drinking on any part of the premises belonging thereto, or sell or give out therefrom any liquors before eight of the clock in the morning, or after eleven of the clock at night, of any day, with the exception of refreshment to travellers, or to persons requiring to lodge in the said premises.” The 26th section of the statute under which the complaint apparently professed to proceed requires that the particulars of the offence, and the place and time of commission, should be set forth, and also whether it be a first, second, or third offence, as the case may be. And the pursuer was charged by the Procurator-Fiscal of Dumfries with breach of certificate, inasmuch as “she did unlawfully keep her said inn and hotel or publichouse open, by permitting or suffering one or more persons to be therein—viz., John Gillespie, a baker, residing in Dumfries, and others, militiamen, whose names are to the complainer unknown, who were neither lodgers nor persons requiring to be accommodated in said house, inn, or hotel.”
Page: 75↓
The local magistrate found the alleged offence proven, and inflicted a fine, with the alternative of imprisonment, The pursuer appealed to the Circuit Court at Dumfries, on the ground that there was no relevant offence charged against her, and that therefore the Magistrate had no jurisdiction to entertain the complaint. The appeal was certified to the High Court by Lord Deas; but after a hearing there, dismissed, on the ground that that Court could not entertain the appeal for the reasons set forth. The pursuer then raised the present action of reduction in the Court of Session. There was also a conclusion for damages, but this was given up. The Lord Ordinary decided in favour of the pursuer, reducing the complaint, conviction, and sentence, on the ground that no statutory offence whatever had been charged.
The defender reclaimed, and
For him the Solicitor-General and Mair argued—(1) That the complaint sought to be reduced charged a relevant offence. (2) That even though not sufficiently relevant in its details, that was a matter which could be remedied by an appeal to the Circuit Court, as provided in the statute; and (3) That in any view the Act of Parliament provided, sec. 35, “that every action or prosecution against any Procurator-Fiscal, Superintendent, or other officer of police or constable, or other person, on account of anything done in execution of the recited Acts, and this Act, or any of them, shall be commenced within two months after a cause of action or prosecution shall have arisen, and not afterwards.” That the complaint in question was something done in execution of the Act; and therefore that as the present action was not raised till after the expiry of the statutory period, it was now incompetent. The reclaimer relied on the authority of Russell v. Laing, 25th June 1845, 7 D. 919.
Thoms and Brand, for the pursuer, were not called on to reply. Their contention on record was—(1) That no relevant offence having been charged, the Magistrate had no right or jurisdiction to entertain the complaint, or to pronounce the sentence therein complained of. (2) That the pursuer not having violated any of the terms or conditions of her certificate, the complaint, conviction, and sentence were bad in law, and therefore subject to reduction; and (3) That the alleged offence being no offence, either against the statute set forth in the complaint or against common law, the complaint, conviction, and sentence were illegal and groundless. Pursuer's authorities were Ferguson v. Malcolm, 14th Feb. 1850, 12 D. 732; M'Donald v. Dobie, 14th Jan. 1864, 2 M'Pherson, 437.
The Court were of opinion that the only jurisdiction which the Magistrate had was under the Public Houses Act, because the offence intended to be charged was a breach of that Act. The clause required three things—(1) That open house be not kept; (2) that no drinking be permitted between eleven p.m. and eight a.m.; and (3) that no liquor be sold within the same hours. The object here plainly was to prevent trade being carried on between these hours. The prohibition against keeping open house was simply a prohibition against carrying on business, and the other two enactments were plainly added with a view to prevent any evasion of this the leading prohibition; but the complaint merely said that the alleged offender kept her house open, which was a very different thing from “keeping open house;” and if the complaint had stopped there they would have no difficulty in holding it irrelevant but it did not; for, confounding together the second and third prohibitions, which were quite distinct, it went on to say that the specific way in which the offence was committed was “by permitting,” &c. (as above). The mere suffering persons to be in the house did not surely imply either that drinking was permitted or that liquor was sold. There was here such a plain disconformity with the terms of the certificate as could not be got over. The objection to the complaint was therefore good, and that being so, it followed as a matter of course that there was no jurisdiction; and that being so, it would be monstrous to hold that the pursuer, against whom no offence had been proved, had no means of wiping out the stain thus inflicted on her character. It was quite true that under the statute all review was excluded, but here the proceedings had not been conducted under the statute, and were therefore not protected by it. The same observation applied to the objection that the action had not been brought within the statutory period.
The interlocutor of the Lord Ordinary was therefore adhered to, with additional expenses.
Solicitors: Agent for Pursuer— W. Officer, S.S.C.
Agent for Defender— W. Kennedy, W.S.
