ROBERTSON v BISSET (Court of Session)

A petition and complaint was presented to the justices of the peace of the county of Ayr by Bisset, with concourse of the procurator-fiscal, against Robertson, charging him with an offence against the 17 Geo. III. c. 56, in having certain embezzled goods in his possession, and concluding that he should be fined in terms of the statute. The justices found that Robertson had contravened the statute, and granted warrant for levying the mitigated penalty of L.10; which sentence was carried into execution by poinding.

A preliminary defence put in against this action was, that the proceedings in question being criminal, they could not competently be reviewed, in any form, by the Court of Session. Cases having been ordered by the Lord Ordinary—

But independently of the present being a case either of police regulation or of penalties for a statutory offence, the circumstance that there has been an excess of power, on the part of the justices, in various instances set forth in the summons, would be a sufficient ground for the Court holding itself competent to review the proceedings even in the form of suspension or advocation; Opinion of the Court in Berry v. Walker, supra; Ivory's Notes on Ersk . and authorities there referred to.

Conceding, however, that the law is fixed otherwise, still the Court of Session would be entitled to exercise the power of review by reduction. That form of process is certainly not competent to the Court of Justiciary; and, if it were also held to be excluded from the Court of Session in criminal matters, the judgments of inferior criminal courts, wherever carried into execution, would not be subject to review at all.

It is said that there was an excess of power on the part of the justices; and, therefore, review of their proceedings is competent. But, in the first place, what is termed an excess of power is mere alleged irregularities in the form of procedure; and, secondly, supposing a real excess of power had occurred, although that might be a good ground for maintaining the competency of review generally, it cannot lead to the pursuer's conclusion, that redress is to be sought in the Court of Session, and not rather in the Supreme Criminal Court.