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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nathan v. Auld [1881] ScotLR 19_72 (9 November 1881)
URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0072.html
Cite as: [1881] ScotLR 19_72, [1881] SLR 19_72

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SCOTTISH_SLR_Court_of_Session

Page: 72↓

Court of Session.

Wednesday, November 9. 1881.

(Before the Lord Justice-Clerk, Lord Young, and Lord Craighill.)

19 SLR 72

Nathan

v.

Auld.

Subject_1Justiciary Cases
Subject_2Absence of Suspender
Subject_3Personal Presence.
Facts:

Where a person convicted of an offence in an Inferior Court, and sentenced in absence alternatively to pay a fine or undergo a term of imprisonment, brought a bill of suspension thereof, having neither paid the fine nor undergone any imprisonment, the Court required his personal presence as the condition of hearing the case.

Headnote:

This was a bill of suspension at the instance of Hermann Nathan, Liverpool, and recently clothier, Greenock, against a conviction obtained against him in the Renfrew Justice of Peace Court, under which he was fined in absence £20, with the alternative of six months' imprisonment. The complaint under which he had been convicted charged him with an offence within the meaning of the Merchant Shipping Acts 1854–80, and particularly of the 5th section of the Merchant Seamen (Payment of Wages and Rating) Act 1880, by having on the 29th July last (although not in Her Majesty's service, and not being duly authorised by law for the purpose) gone on board a vessel at the Tail of the Bank without permission of the master.

He had never been apprehended, and now brought a suspension of the sentence, one of the grounds of suspension being that he was an Englishman, and was residing in Liverpool at the date on which the alleged citation had been made on him at his former residence in Greenock.

At advising—

 Judgment:

Lord Justice-Clerk—If this statement is not materially contradicted, I am of opinion that we ought not to proceed without requiring the personal presence here of the suspender. He is not in the position of a prisoner who has been liberated. If that were the case, he would, for the purposes of this suspension, be bound to be personally present here. I am of opinion, however, that we ought to continue the cause till the suspender appears.

Lord Young—I agree with your Lordship in thinking that the personal presence here of the suspender is a reasonable condition of going on with the appeal. In the general case, the prisoner is in jail, and if he obtain interim liberation before the appeal is heard, it is provided by statute that he must be personally present, so that there shall be an assurance of his being sent back to prison in the event of the appeal being dismissed. Another case is that of a person who may be quite properly sentenced to imprisonment in his absence. He makes his appearance on appeal by counsel and agent, but if he himself remains absent, then I think that it is a reasonable provision that it should be a condition of hearing the appeal that he be in jurisdiction to undergo his sentence if we affirm it.

Lord Craighill—I entirely concur. We must have the personal presence of the appellant here.

The Court therefore continued the cause for a month to enable the suspender to appear personally before the Court as a condition of the hearing of his case.

 Counsel:

Counsel for Suspender— Nevay. Agent— W. Officer, S.S.C.

Counsel for Respondent— H. Johnston. Agent— D. Turnbull, W.S.

 1881

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URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0072.html