Chisholm v. Kellock [1902] ScotLR 39_733 (21 June 1902)

Chisholm v. Kellock [1902] ScotLR 39_733 (21 June 1902)

A common informer has no title to sue for a penalty under section 13 of the Licensing (Scotland) Act 1828, as section 25 of the Public-Houses Acts Amendment (Scotland) Act 1862 requires such prosecutions to be brought at the instance of the procurator-fiscal or a specially appointed person. The pursuer's action was therefore incompetent.

Citation
[1902] ScotLR 39_733
Parties
Pursuer/appellant: John Chisholm; Defender/respondent: Horace Edward Moss
Jurisdiction
Scotland
Judgment Date
21 June 1902
Procedural Posture
Civil Appeal / Appeal From Sheriff Court to Court of Session Inner House, Second Division
Outcome
Appeal dismissed; action dismissed for want of title to sue.
Legal Topics
Title to Sue, Common Informer Actions, Penalties Under Licensing Acts, Jurisdiction of Sheriff Court, Summary Procedure
Licensing Law Civil Procedure Criminal Procedure Title to Sue Common Informer Actions Penalties Under Licensing Acts Jurisdiction of Sheriff Court Summary Procedure

Case Brief

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Parties

John Chisholm

Pursuer/appellant

Horace Edward Moss

Defender/respondent

Procedural Posture

Civil Appeal / Appeal From Sheriff Court to Court of Session Inner House, Second Division

Legal Issues

  1. 1 Whether a common informer has title to sue for a penalty under section 13 of the Licensing (Scotland) Act 1828 after the Public-Houses Acts Amendment (Scotland) Act 1862
  2. 2 Whether the action was competent in the ordinary Sheriff Court or only by summary complaint at the instance of the procurator-fiscal

Ratio Decidendi

A common informer has no title to sue for a penalty under section 13 of the Licensing (Scotland) Act 1828, as section 25 of the Public-Houses Acts Amendment (Scotland) Act 1862 requires such prosecutions to be brought at the instance of the procurator-fiscal or a specially appointed person. The pursuer's action was therefore incompetent.

Court Disposition

Appeal dismissed; action dismissed for want of title to sue.

Orders

  • Sustain the first plea-in-law for the defender (no title to sue).
  • Dismiss the action and decern.