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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Allan & Mann v. Lang [1868] ScotLR 6_301 (3 February 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0301.html Cite as: [1868] SLR 6_301, [1868] ScotLR 6_301 |
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Page: 301↓
Held that a conviction for a guild offence, punished by a fine with the alternative of imprisonment, was a proceeding of a criminal nature, and therefore excluded by the 28th section of the Summary Procedure Act from the review of the Court of Session in a process of advocation.
By the Glasgow Police Act 1866, the Dean of Guild has power to decern for any penalty due in respect of a guild offence, and grant warrant for imprisoning the party liable on failure to pay. By the same Act the Master of Works has power to require occupiers to remove or alter porches, signs, gates, fences, &c., &c., against or in front of their lands on or over any road or street, unless erected under a warrant of the Dean of Guild; and parties disobeying such requisition are guilty of a guild offence. Allan & Mann received a notice from the Master of Works to remove a fence and gate inclosing part of Victoria Street, Port-Eglinton, opposite a land on the north side thereof occupied by them. This they failed to obey, denying that the space inclosed was part of Victoria Street. The Dean of Guild, on a petition by the Procurator-Fiscal (Lang), found that the respondents had incurred a guild offence, modified the penalty to £5, granted warrant for imprisonment on failure to pay within fourteen days, and ordained the defenders to remove the obstructions complained of.
Allan & Mann advocated.
The respondent (petitioner in the Inferior Court) maintained the following pleas:—“(1) The advocation is incompetent. The proceedings are of a criminal nature, and all review thereof in this Court is excluded by the provisions of the Summary Procedure Act, 27 and 28 Vict., chap. 63, sec. 28, as well as at common law. (2) No jurisdiction, in respect the proceedings are of a criminal nature. (3) The advocation ought to be refused, in respect the judgments complained of are well founded, and that the advocators were guilty of the offence specified in the petition at the respondent's instance, having failed to remove the obstruction erected by them on the public street, all as set forth in the said petition.”
Fraser and Maclean for advocators.
Watson and Shand for respondent.
The Court sustained the first plea in law of the respondent, and refused the advocation.
Agent for Advocators— John Galletly, S.S.C.
Agents for Respondent— Campbell & Smith, S.S.C.
