Scottish Court of Session Decisions

This is an advocation of a judgment of the Justices of the Peace for the county of Ayr, assoilzieing the respondent, who is the proprietrix of a house in Kilwinning, from a petition presented against her by the advocators, who are the clerks to the Irvine Road Trustees, for an alleged contravention of section 12 of the Ayrshire Road Act, 1847. By that section it is enacted that without the consent of the trustees no house or building shall be erected within a distance of less than 25 feet from the centre

Page: 156↓

of the turnpike road, and the advocators allege that by erections and additions made to her house in May 1865 the respondent has brought it within the distance disallowed by the Act. The proceedings were by petition upon six days' induciæ, under sections 109 and 110 of the General Turnpike Act, which was incorporated with the Ayrshire Act. The case having been brought before the Justices of the county, was by them dismissed. On behalf of the respondent it was pleaded, that no appeal having been taken to Quarter Sessions from the judgment of the Justices, as provided by section 114 of the Turnpike Roads (Scotland) Act, 1 and 2 William IV., c. 43, their decision is now final and conclusive; and that by section 28 of the Summary Procedure Act, 26 and 27 Vict., c. 53, the jurisdiction of this Court is excluded, in respect that the proceedings are, in the sense of that section, of a criminal nature.

The Lord Ordinary, after having heard parties, dismissed the advocation as incompetent, on the ground of the finality of the Justices' decision in respect of want of appeal therefrom to the Quarter Sessions ( Campbell v. Strathern, Feb. 9, 1848, 10 D. 655). In regard to the other plea the Lord Ordinary observed in his note—

“Upon considering the provisions of the 28th section of the Act 26 and 27 Vict., c. 53, upon which the plea is rested, the Lord Ordinary has come to be of opinion that, assuming the proceedings of the Justices in such a case as the present to be open to review, the jurisdiction of the civil court is not excluded. At the date of the above Act it had been authoritatively settled that the Court of Justiciary had not jurisdiction to review proceedings under the Act 1 and 2 William IV., c. 43 (Campbell, 33d November 1847, Arkley, p. 386), so that the present question turns upon whether, by the above section of the Summary Procedure Act, the jurisdiction has been taken away from the civil and transferred to the criminal court. Now the provisions of that section are restricted to proceedings “upon summary complaint before sheriffs, justices,” &c., and if the present complaint had been brought under sect. 111 of 1 and 2 William IV., c. 43, which authorises prosecutions in a summary form, the Lord Ordinary would have been disposed to hold, notwithstanding the decision in the case of Campbell, that the advocators had applied to the wrong tribunal for redress. The proceedings complained of, however, were not taken in the summary form of procedure prescribed in that section, but upon petition, with a citation on six days' induciæ, under sections 109 and 110 of the statute, as expressly distinguished from the summary procedure provided by section III. And such being the nature of the complaint, review, if competent in such a case at all, must still, it is thought, be in the civil court.”