petently deal with this matter upon a bill of suspension No 76.

and liberation.

At advising

Patterson v. Malcolm. HighCourt, June 8, 1867.

LORD COWAN.-I am of opinion that the Quarter Sessions, in dismissing this appeal have taken an errone- Suspension. ous view of the Statute (17th Geo. III. c. 56), under which the prosecution was brought ; but there is nothing to prevent the appeal being taken up at the next Quarter Sessions. The notice of appeal is well given. The expression in the Statute, 'the next General or General 'Quarter Sessions of the Peace,' just means the Quarter Sessions competent to take notice of the appeal. It is a matter for the discretion of this Court, I think, to say whether, in the circumstances, they shall take up the appeal. I think we can remit to them, in order that they may do their duty, and that will make it competent to them to deal with it when it comes before them.

LORD NEAVES concurred.

The LORD JUSTICE-CLERK.-It was contended by the suspender that the petition was defective in not specifying the materials sufficiently. But another section of the Act gives a list of the materials, one of which is mentioned in the petition. It was also contended that the oath of the informer was not full, and that it did not state in detail the grounds which he had for suspecting that there were purloined articles in the suspender's house. But the Statute does not require such grounds to be stated, and I think that the requirements of the Statute have been complied with in this respect in the oath that was emitted. Another objection that was stated was, that the materials had been so handled as to render it impossible to identify them; but that is an objection which goes to the merits; that is a question of proof, and was a matter to the Justices to determine. With regard to the lapse of twelve months between the date of the remit from this Court and the date of the disposal of the case before the Justices, it does not ap

Patterson

June 8,

1867.

No. 76. pear that the accused has suffered from it, or that any v. Malcolm. objection was ever taken to the delay; and there is, High Court, therefore, no sound ground for that objection. We come, therefore, to consider the question upon the proSuspension, ceedings about appeal. The Justices have rejected the appeal because the appellant has neither gone to prison nor entered into recognizances, in terms of 17th Geo. III. c. 56. Now it would at first sight sppear from section 20th of the Act that there are two conditions precedent to an appeal being received. That section says that an appeal may be taken, upon 'such person at the 'time of such conviction giving to such Justices notice, ' in writing, of his or her intention to appeal, and also ' entering into recognizance at the time of such notice, 'with sufficient sureties,' &c.; but that is qualified by the provision which follows it in the same section—' but 'if the person giving such notice shall not, at the time ' of giving such notice, enter into such recognizances as aforesaid, the Justices, to whom such notice of appeal 'shall have been given, shall and may commit such person to the House of Correction,' &c., there to remain until next Quarter Sessions. It is certain that the Statute did not contemplate that the absence of recognizances should prevent appeal. The Quarter Sessions, by the same section, are further authorised and ' required,' upon due proof made of such notice of appeal,' to 'hear' and 'determine' the matter of 'said appeal, and to award such costs as to them shall seem 'just,' &c. They must go on to hear and dispose of the appeal according to law. It does not matter whether the accused be present or not, if he got notice to attend. What we must do is just to alter the finding of the Justices, and remit to the next General or General Quarter Sessions of the Peace to proceed with the appeal. The Court accordingly pronounced the following interlocutor:

'Repel the whole objections founded upon the alleged 'irregularities Find that the Quarter Sessions of the

Patterson

June 8,

'Justices of the Peace ought to have entertained and No. 76. disposed of the appeal entered by the complainer: v. Malcolm. Therefore recall the sentence dismissing the appeal, High Court, and remit to the next General or General Quarter___1867. Sessions of the Peace to be holden for the county of Suspension. Forfar, at Forfar, to proceed with the matter of the

appeal: Find no expenses due: Meantime grant war'rant for the complainer's liberation, on condition of 'his returning to prison and undergoing the unexpired period of the imprisonment under the conviction, or paying the penalty forfeited, in the event of the con'viction being affirmed by the said Sessions.'

D. CURROR, S.S.C.-JAMES NISBET, S.S.C.-Agents.

Present,

THE LORD JUSTICE-CLERK.

LORDS COWAN AND DEAS.

FRANCIS LONE, Suspender-Scott,

AGAINST

HENRY BUCHAN, Respondent-Marshall.

SUSPENSION-STATUTE 13TH AND 14TH VICT. C. 33, (General Police and Improvement (Scotland) Act, 1850)-SUMMARY PROCEDURE ACT-EXECUTION OF WARRANT TO APPREHEND-SURPRISE-OPPRESSION-MOTION FOR DELAY.-A person communicated with by the police with reference to stolen goods found in his possession, attended the Police Court at the request of the Superintendent of Police, on a day fixed, when he was served with a warrant for his apprehension, upon a complaint against him for theft or reset of theft, and was immediately thereupon tried and convicted. The No. 77. procedure found relevant, and suspension on the ground of surprise and oppression refused, no delay having been moved for at the trial. FRANCIS LONE, Rag Merchant, Bank Street, Stirling, was charged in a complaint at the instance of the re- Suspension.

Lone v. Buchan, HighCourt.

June 9.

1867.

Lone

June 9,

No. 77. spondent, Superintendent of Police for the Burgh of v. Buchan. Stirling, with having stolen from within the Coach High Court Building Yard of George Thomson, Coach Builder, 1867. Orchard Place, Stirling, Three Brass Bushes, between Suspension. the 1st day of February and the 21st of April 1867, or otherwise between the same dates, with having resetted or received the same in his Rag Store above mentioned, knowing them to have been stolen.

เ

The following note of procedure was made:

'Stirling, 29th April 1867. Having considered the foregoing com

plaint, grants warrant to officers of Court to apprehend the therein ' designed Francis Lone, and bring him before the Magistrates of 'Police, of the Burgh of Stirling, or any of them, to answer the same, and also to cite witnesses for both parties.

(Signed) W. RANKIN, Magistrate.'

'At Stirling the 29th day of April 1867, in presence of William Rankin, Esquire, one of the Magistrates of Police, of the Burgh of 'Stirling, compeared the said Francis Lone under warrant of this ' date, and the foregoing complaint being read over to him, he answers 'that he is not guilty.

(Signed)

F. LONE.

W. RANKIN, Magistrate.'

Whereupon the following witnesses were examined on oath in sup

·

port of the complaint.

Here follow the names and designations of

three witnesses.
(Signed)

W. RANKIN.'

Eo die: The Magistrate having considered the foregoing com'plaint with the evidence adduced, finds the said Francis Lone guilty of reset of theft as libelled in the alternative charge of the complaint, ' and therefore sentences and adjudges him to be incarcerated in the 'Prison of Stirling, therein to be detained for the period of ten days 'from the date of his incarceration, and grants warrant to officers of 'Court to incarcerate him in said prison, therein to be detained ac'cordingly.

(Signed) W. RANKIN, Magistrate.'

The present bill of suspension and liberation was thereupon presented craving for suspension of the foregoing sentence, and for liberation.

SCOTT, for the suspender-The suspender is a law

Lone

June 9,

abiding person. Eight brass bushes were found upon his No. 77. premises and taken possession of by the police; some of. Buchan. which were subsequently identified by Mr. Thomson, High Court. coachbuilder, Stirling, as having been stolen from his 1867. premises. Upon being asked, the suspender could give Suspension no particular account of how he became possessed of them, inasmuch as he was continually receiving such articles in the course of trade without knowing by whom they were brought to his shop. Subsequently he was told that he was wanted by the superintendent of police, and on going to the police office on 27th April 1867 he was a second time asked to account for the possession of the bushes, when he said that he could not recollect the person from whom he had received them. No charge was then preferred against the suspender, nor was anything said that could suggest that a charge was to be preferred, or that any suspicion was entertained against him; but he was told to attend at the police court on the Monday following, the 29th April 1867. That he accordingly attended without suspicion that a complaint charging him with theft or reset of theft had been presented, or that a warrant for his apprehension on said charge had been obtained thereon. That while so present in the police court he was suddenly requested to enter the dock, which he did, and that the complaint was thereupon read and proceeded with, and the above record made up.

The suspender was so taken by surprise at this proceeding, and was so agitated as to be incapable of attending to his interests, and on account of the suddenness of the charge it did not occur to him that the proceedings could be postponed; and it was admitted that no motion for delay had been made, and that he pleaded not guilty.

No doubt a warrant of citation was granted by the presiding Baillie, but the suspender never heard of it. It was never executed. He was neither cited nor apprehended on the charge. No timeous notice was therefore