Duke of Sutherland v Douglas
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1907 |
| Date | 19 July 1907 |
| Docket Number | No. 23. |
| Court | High Court of Justiciary |
Lord justice-clerk, Ld. Stormonth Darling, Lord Low.
Procedure—Private Prosecutor—Right of private prosecutor to be represented by a law-agent—Summary Jurisdiction (Scotland) Act, 1881 (44 and 45 Vict. cap. 33), sec. 9, subsec. (1).—
Held that under sec. 9, subsec. (1), of the Summary Jurisdiction (Scotland) Act, 1881, a private prosecutor is entitled to be represented at the trial by any duly qualified law-agent to whom he may give a mandate to appear, although the complaint has been signed by another law-agent.
Finlayson v. Bunbury, 25 R. (J. C.) 110, 2 Adam, 478, followed.
This was an appeal, by way of stated case, against a judgment of the Sheriff-substitute (Mackenzie) at Dornoch, dismissing a summary complaint which charged a contravention of the Game (Scotland) Act, 1832.
The case set forth:—
‘This case … relates to the competency of proceeding with a complaint brought in name of the Duke of Sutherland, but signed by his recognised local law-agent (A. N. Macaulay) under authority of subsection (1) of section 9 of the Summary Jurisdiction (Scotland) Act, 1881, and is directed against the respondent, Douglas, for an alleged contravention of the Act 2 and 3 Will. IV. section 1.
‘At the diet of compearance on 8th January last the respondent was present, but the complainer and his said law-agent, who had signed the complaint, failed to appear, and in consequence the case was not then proceeded with, but was adjourned for a week.
‘At the adjourned diet on the 15th January the respondent was present with his agent, but both the complainer and his agent (Macaulay) were again absent. The latter's clerk, however, who is a law-agent and represents his employer in his business before the Sheriff Court, claimed to appear in this case against the respondent, but the Sheriff-substitute, being of opinion that the right of conducting the prosecution referred to in the statute could not devolve upon him and be exercised while neither the complainer nor his law-agent (Macaulay) was personally present, declined to recognise such appearance, and sustained the objection by the respondent's procurator that no competent prosecutor was present, and therefore dismissed the complaint.’
The question of law was,—‘Whether in the absence of the complainer and the law-agent who under statutory authority had signed the complaint, the further right conferred on “such law-agent” of conducting the prosecution “on behalf of” the complainer and acting as a competent prosecutor, could in his absence be exercised by another person not specially authorised under the statute?’
Argued for the appellant;—expression ‘such law-agent’ in section 9, subsection (1), of the Summary Jurisdiction Act, 1881, was not...
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