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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> George Buchanan v James Towart. [1754] Mor 7347 (10 March 1754)
URL: http://www.bailii.org/scot/cases/ScotCS/1754/Mor1807347-081.html
Cite as: [1754] Mor 7347

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[1754] Mor 7347      

Subject_1 JURISDICTION.
Subject_2 DIVISION IV.

Jurisdiction of the Court of Session.
Subject_3 SECT. I.

To what Causes this Jurisdiction extends.

George Buchanan
v.
James Towart

Date: 10 March 1754
Case No. No 81.

The act empowering Justices of the Peace to hear and finally determine offences in destroying trees, does not exclude the Court of Session from a power of review.


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George Buchanan proprietor of the woods of Auchindinna, preferred a complaint to the Justices of Peace of Dumbartonshire, on the 18th act anno 1st Geo. I. entituled, “An act to encourage the planting of timber-trees, &c. and for the better preservation of the same,” against James Towart, for cutting and stealing certain trees from the woods of Anchindinnan.

The Justices ordained Towart to be four months imprisoned, and four times whipped, in terms of the statute. He offered a bill of suspension and liberation, which was taken to report to the whole Lords.

The objection made to the passing of the bill was, That as, in the statute in question, “the Justices of Peace are authorised to hear, and finally determine and adjudge,” all offences against the same; the determination of the Justices was here final; and the Court of Session could not review their sentence.

To which it was answered for Towart; In the language of statutes, “finally determine” does not import that the determination shall be final;

For, wherever a statute intends the determination of a court to be final, it uses an expression of its intention much more exact and copious than is contained in these words, “finally determine.”

Or, where it means to give that import to these words, “finally determine,” it continually attends them with the addition of many others explaining its intention.

Cay, in abridging the statute in question, leaves out the word “finally,” as a mere expletive; understanding that “finally determine” means nothing more than to bring the cause to an issue, so far as depends upon the justices.

The act of the eleventh of Henry VI. cap. 6. ordaining, That no suit, before former Justices, shall be discontinued by a new commission, gives a power to the new Justices to determine pleas, which were before the former ones, and “the same pleas and processes, and all that depend upon them, to hear and finally determine.” If “finally determine” signified that the determination should be final; then by this statute of Henry VI. the determination of the Justices would have been final in all questions coming before them, which is not true.

In tire act 19th, anno 20th Geo. II. entituled, “An act for the adjusting and more easy recovery of the wages of certain seamen,” the Justices have a power finally to determine the disputes therein provided for; notwithstanding which, many sentences of Justices on such disputes have, since that statute, come under the review of the Court of Session.

The statute in question gives no appeal from the sentences of the Justices to the quarter sessions; but when a statute, relating to a crime, intends to give the final determination to the Justices of Peace, it constantly takes care to give an appeal to the quarter sessions, for the greater safety of the subject.

“The Lords ordained the bill to be passed.”

Reporter. Murkle. Act. Lockhart. Alt. Boswel & J. Dalrymple. Fol. Dic. v. 3. p. 344. Fac. Col. No 108. p. 159.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1754/Mor1807347-081.html