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and saving them a good deal of expense,

Their plea-in-law upon this matter was as follows:-The "defenders having entered upon the property of the pursuers-being lands required to be purchased or permanently used for the purposes of their Special Act-without having paid to the pursuers their interest therein, the pursuers are entitled to interdict as craved." The interest which the Coal Exchange Company had and endeavoured to protect was a right to a sum of money.

If there had been here an attempt to invert the existing state of possession, there then would have been a good case for an application for interim interdict, but the application did not belong to that class of cases at all. It was the

taking of the subsoil of a street, which was not being possessed by, because not being in the enjoyment of, the petitioners. It is absurd to say that the subsoil of a street can be in the possession of a party when he is not deriving any beneficial enjoyment therefrom.

Nor is this the case of one who is in the beneficial enjoyment of his estate, and has his title challenged by one who claims a better title. In that case interim interdict is granted against the party claiming to dispossess the other until the rights of parties are determined.

The railway company here has its Acts of Parliament giving it the undoubted right to take possession of this ground for the purposes of its operations, but the conditions upon which it is entitled to take the land is another matter.

The only question raised by the present action depends for its determination upon the terms of the prayer of the interdict. The only interest

which the Coal Exchange Company had and were endeavouring to protect was the right to a sum of money to be paid to them by the railway company. They maintained that that sum of money was the purchase price of the lands which the railway company were taking, and which they were bound to take, according to the defenders' contention, in the ordinary way provided by the Lands Clauses Act. On the other hand, the railway company maintained that they required to take no such proceeding, but they did not dispute that the defenders were entitled to compensation for any loss or damage they might sustain by reason of the execution of the railway company's works.

The point in dispute, therefore, was whether the defenders were entitled to the sum of money in name of the price of the land, and that before the railway company took possession, or whether they were only entitled to such a sum as would compensate them for any loss sustained by the execution of the work, to be ascertained and paid after the works were completed. In either view it is quite plain that the defenders were entitled to nothing but a sum of money. It is not said that this railway company is a bubble speculation without capital or funds. On the contrary, this company is one with large funds, and there is nothing to show that they are not quite in a position to fulfil all their obligations. I cannot see that the parties applying for interdict had any legitimate interest or object to serve in applying for interdict. I think that in doing so they were not promoting in any way their own interest, and they were not in any way, remotely or contingently, serving

their own interest.

I therefore think that this application for interim interdict was in a very high sense wrong, because the defenders must have been perfectly well aware that the railway company were engaged in the execution of an extremely difficult and critical work requiring despatch which was forced upon them by very serious penalties. Now, to apply for interim interdict in such circumstances against the works proceeding was, I cannot help thinking, a very unjustifiable act.

I am clear, therefore, that this is a case which falls under the class of applications for interdict, which if the parties fail in the long run must subject them in damages.

LORD MURE-I am of the same opinion. The result of the various decisions to which we were referred may be stated in the language of Lord Colonsay in the case of Buchanan v. Douglas, Feb. 3, 1853, 15 D. 365. His Lordship's view was that it is always a question of circumstances whether the interdictor was liable in reparation in a case where an interdict had been wrongfully granted. Lord Fullerton went further, and held that wherever a person obtains an interdict he does so periculo petentis, and liability will ensue if the interdict be found to be wrongous. Lord Ivory seems to have thought that it was a question of bona fides at the time the application was made. Lord Colonsay's opinion seems to me the correct one. The question is, whether at the date when the interdict was applied for the person asking it was entitled to take that step?

In the present case, if the railway company had inverted the state of possession I should have been for upholding the Coal Exchange Company's contention. But unfortunately for the pursuers this is not the state of the facts. They had been already dispossessed of a certain portion of their property by the Glasgow Police Act, under which the city authorities took it over for municipal purposes. This being the peculiar position of the property, the present pursuers were entitled, without giving any notice, to proceed to construct their railway. The claim of the defenders against the railway company resolved itself into a simple right of compensation for the use of the subsoil, which under their Act of Parliament the railway company were not obliged to implement before they took possession, and they were in no sense guilty of an inversion of the possession of the ground as in a question with the defenders.

LORD SHAND-I have very great difficulty in coming to the conclusion that any specific rules should be laid down in a case of this kind, although in cases of application for interdict falling within another class the rules may be sharply defined. The principle which seems to me to be applicable in a case of the present nature is, that where the interruption has been wrongful a claim of damages arises. There are of course circumstances which justify such an application, e.g., where the person seeking interdict has been in undisturbed possession for many years. But looking to the special circumstances of this case, I have come to the conclusion that the Lord Ordinary's view cannot be supported.

The property invaded by the railway company was of a very peculiar nature. It was not the surface of the ground, it was the subsurface, and

anything in the nature of beneficial use of this was quite out of the question. Practically, no real enjoyment of it could be had, and no substantial injury could be done by the appropriation of a few feet of subsoil. At best, the Coal Exchange Company's right was one of pecuniary compensation only.

It is not said that the railway company were unable to meet their obligations. But it is said that the money compensation due by them should have been paid or consigned or provided for before they entered upon the ground. On the one hand, it was very clear that if the railway company's operations were interfered with a serious injury would be the result. On the other hand, I am unable to see any substantial benefit which the Coal Exchange Company could receive from the interim interdict. If that question had been tried upon a closed record, and if the further question of the time at which the compensation, if any, fell to be paid by the railway company had also been deferred until that period, the case would have been different. But the Sheriff-Substitute took up the question of interim interdict as a separate question to be dealt with at the commencement of the proceedings, and he granted interim interdict at that stage.

Looking to the fact that the Coal Exchange Company could get no substantial benefit from the course they took, and that the interim interdict has been productive of very serious injury to the railway company, the interdictors must take the consequences, as they chose to resort to such a remedy.

LORD ADAM-I agree, in the first place, that the interdict which was granted by the SheriffSubstitute was an interim interdict and nothing else, and I think that the circumstances of the case were such as ought to have made the Coal Exchange Company pause before applying for this very summary remedy.

In the next place, I do not see that the Coal Exchange Company had any very substantial reason for asking the interdict. They have never denied that the railway company had a statutory right to take possession of the ground; their contention was that before taking possession the latter should be bound to pay the price of the ground and of the tenements on either side, so far as taken. They raised no question as to the right of the railway company to possess the ground, or that there was any danger to the tenements on either side from the operations which were in progress, or that they were likely to be losers in any way during the time that these were being carried through. All they said was that the railway company were not to take possession before they paid the compensation price for doing so. In these circumstances, unless the Coal Exchange Company were right in their interpretation of the statute, the interim interdict was wholly wrongous, and must be held to subject them in damages.

The Court recalled the interlocutor, and remitted to the Lord Ordinary to proceed with the

cause.

Counsel for Pursuers R. Johnstone-R. V. Campbell. Agents-Millar, Robson, & Innes, S.S.C.

Counsel for Defenders - Mackintosh - Ure. Agents-J. & J. Ross, W.S.

July 14, 1885.

HIGH COURT OF JUSTICIARY.

Saturday, July 18.

(Before Lord Justice-Clerk, Lord Young, and Lord M'Laren.)

CARLIN V. GOVERNMENT OF COLONY OF CAPE OF GOOD HOPE, AND WOOD. Justiciary Cases-Fugitive Offender-Fugitive Offenders Act 1881 (44 and 45 Vict. c. 69), secs. 2, 3, 5-Jurisdiction.

A prisoner was brought before a magistrate in Scotland under the Fugitive Offenders Act 1881, charged with an offence committed in the Cape Colony. The warrant of the Colonial magistrate, which was endorsed by the Secretary of State under the statute, stated the crime of which the prisoner was accused, but rot the place of the alleged crime. The depositions produced with the warrant showed that there was a reasonable presumption that the offence was committed at a particular place within the British dominions. Held that it was not a good ground for objecting to the validity of a warrant to transmit the prisoner to the Colony for trial, that no place was stated in the warrant.

Opinion that the warrant being endorsed by the Secretary of State, the magistrate ought not to consider its validity in point of form. Crimen continuum-Fugitive Offenders Act 1881,

sec. 21.

The depositions showed that there was a strong presumption that the offence alleged was begun in a British Colony, and completed either therein or in a neighbouring state. Held (1) that there were grounds for granting a warrant to transmit the prisoner on suspicion of a crime committed within the Colony; and (2) that assuming the completion of the crime to have taken place outside the Colony, the doctrine of crimen continuum applied to the case. The Fugitive Offenders Act 1881 (44 and 45 Vict. c. 69) provides by section 2-"Where a person accused of having committed an offence in one part of Her Majesty's dominions, has left that part, such person (in this Act referred to as a fugitive from that part), if found in another part of Her Majesty's dominions, shall be liable to be apprehended and returned in manner provided by this Act to the part from which he is a fugitive. A fugitive may be so apprehended under an endorsed warrant or a provisional warrant."

Section 3 provides that where a warrant has been issued in one part of Her Majesty's dominions for the apprehension of a fugitive from that part, certain authorities [in Britain the Secretary of State] in the part wherein the fugitive is suspected to be may endorse the warrant, and that the endorsed warrant is an authority to apprehend the fugitive and bring him before a magistrate.

Section 5 provides-" A fugitive, when apprehended, shall be brought before a magistrate, who (subject to the provisions of this Act) shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, including the power to remand and admit to bail, as if the fugitive were charged with an offence committed

. Cape Colony

18

within his jurisdiction. If the endorsed warrant for the apprehension of the fugitive is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) according to the law ordinarily administered by the magistrate raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant, and that the offence is one to which this part of the Act applies, the magistrate shall commit the fugitive to prison to await his return, and shall forthwith send a certificate of the committal, and such report of the case as he may think fit, if in the United Kingdom, to a Secretary of State, and if in a British possession, to the Governor of that possession."

Section 6 provides that after fifteen days from the warrant for the return of the fugitive the Secretary of State may, if he think it just, order the fugitive to be returned to that part of the dominions from which he is a fugitive.

James Carlin was apprehended in Edinburgh on 17th May 1885 on a charge of murder, said to have been committed in Cape Colony, and under sec. 4 of the Fugitive Offenders Act a provisional warrant was subsequently obtained on a petition charging him with the murder of a native of the Colony named Jonas on or about 15th March 1885.

After certain remands, pending the arrival of an endorsed warrant under the Fugitive Offenders Act 1881, a warrant was produced on 9th July, in these terms:

"Warrant of Apprehension.

"Edward Arthur Judge, Esquire, Justice of the Peace for the Colony of the Cape of Good HopeTo the Field Cornets, Constables, Police-officers, and other officers of the law proper to the execution of criminal warrants-Whereas, from information taken upon oath before me, there are reasonable grounds of suspicion against James Carlin, lately of Kimberley, that he did, on the 20th day of March 1885, commit the crime of murder: These are therefore in Her Majesty's name to command you, that immediately upon sight hereof you apprehend and bring the said James Carlin, or cause him to be apprehended and brought, before the resident magistrate of Kimberley, to be examined and to answer to the said information, and to be further dealt with, according to law. Given under my hand at Kimberley this 30th day of May 1885.-E. A. JUDGE, Justice of the Peace."

It bore that in virtue of the Fugitive Offenders Act 1881 it had been endorsed by the Secretary of State. It bore his signature and seal.

Depositions of witnesses examined before the magistrate in the Colony who granted the warrant were produced. From these it appeared that the man alleged to have been murdered was a native named Jonas, a "trap" in the employment of the police at Kimberley, and who assisted them in suppressing illicit diamond traffic. He had procured the arrest of a woman, Ann Eatwell, with whom the prisoner was acquainted. The depositions were to the effect that the prisoner along with Jonas, who at the time was to all appearance acting willingly, entered a cab in Kimberley within the British dominions, and they were driven in it to Freetown, a place in the Orange Free State, and from there further into the Orange Free State to a place known as Nixon's; that both at Freetown and at Nixon's

the native Jonas was badly used by the prisoner (Carlin), and other white men in his company; and that they had said that Jones was connected with a case about diamonds, and that they wished him away from Kimberley at the trial. At Nixon's it was observed that the native Jonas had handcuffs on.

Three weeks after there was found floating in a well at "Kamfers Dam," a place in the British dominions, and five or six miles from Nixon's, a body of a native having handcuffs on. From a mark on the head which Jonas had, and other circumstances, there was evidence that it was the body of Jonas.

These events happened in the end of March 1885, and in the second week of April the prisoner Carlin left the Colony for Edinburgh, and these proceedings for his extradition on suspicion that he was concerned in the murder of Jonas were then taken.

The Sheriff-Substitute (HAMILTON) found "that the evidence raises a strong or probable presumption that the prisoner committed the offence mentioned in the warrant, and that the offence is one to which the Fugitive Offenders Act 1881 applies: Therefore commits the said James Carlin to prison, to await his return to the Colony of the Cape of Good Hope."

Carlin presented this bill of suspension and liberation, craving suspension of the warrant of imprisonment, and to be immediately liberated. The respondent was G. M. Wood, S. S. C., solicitor for the Cape of Good Hope Government.

Argued for him-(1) There was no ground of jurisdiction on the face of the proceedings. The warrant of the Colonial magistrate only stated that there were reasonable grounds of suspicion that the suspender had committed murder, and no place was specified either within or without the British dominions. Now, that did not show jurisdiction; and further, when the evidence was looked at it appeared that anything whatever which there was to show that the prisoner had done anything to Jonas referred to a place or places in the Orange Free State (Nixon's and Freetown). He was last seen with the alleged murdered man at a public place in the Orange Free State. There was nothing to show any injury done or meditated to him in what happened in Kimberley; on the contrary, all the evidence was that Jonas had quite willingly set off with him from Kimberley into the Orange Free State. Supposing Kamfers Dam to be in the British dominions, which nowhere appeared in the proceedings, there was nothing whatever to indicate that Carlin had ever been there. Now, an alleged criminal will not be given up for trial except to the Court of the forum criminis-Philli- · more's International Law, i. 456; Hume, ii. 57; Attorney-General of Hongkong, 5 L.R., P. C. 179. (2) There was no strong or probable presumption such as the Act required that the accused was guilty of the alleged crime. The warrant alleged the crime to have been committed on 20th March, and it appeared from the jail-book of Kimberley that the accused had been visiting the prisoner Eatwell in custody there on 17th and 18th March, so that he must have returned to Kimberley before the date in the warrant. The evidence as a whole was weak as a ground of suspicion against the prisoner. The Court were quite entitled to look at it on its merits, and the question was not

. Cape Colony

whether there was evidence on which the Sheriff could lawfully send the prisoner to the Colony for trial, but whether on the evidence adduced the Court thought that should be done. That seemed to follow from section 10-See also Clarke on Extradition, p. 154, et seq.

Replied for Colonial Government-The place where the body was found was in British dominions, as the map showed, and the magistrate would look to that as a circumstance pointing to the crime being committed there. The evidence pointed to the man being got away out of the Colony into the Orange Free State, and murdered either there or at Kamfers Dam, the murderous attack being only the completion of a plot to do away with him, the execution of which began in Kimberley. It was possibly a case of crimen continuum, but that was of no consequence. That the date might be a week in error was nothing. Even in an indictment a much greater latitude was allowed.

At advising-

LORD JUSTICE-CLERK-This is an unusual application, but it appears to me that, sitting as we do as a Court of Review, there is no ground for hesitation as to the course which we ought to follow. The Fugitive Offenders Act was passed to provide as to the treatment of offenders charged with offences committed in one part of Her Majesty's dominions, who have taken refuge in another part, and its provisions are very important in the case of persons such as the party now claiming our interposition. The nature of the proceeding contemplated is, that when a person accused of having committed a crime in one part of the dominions has left that part, such person being found in another part of the dominions is liable to be apprehended there and dealt with as the Act provides. Then there are provisions for the obtaining of a warrant, and for inquiry before a magistrate, and provides-[His Lordship quoted sec. 5, ut

sec.

supra].

All that has here been done; the prisoner was brought before the Sheriff of Edinburgh; the Sheriff has found that "the evidence raises a strong or probable presumption that the prisoner committed the offence mentioned in the warrant, and that the offence is one to which the Fugitive Offenders Act 1881 applies," and that is the matter which has been laid before us. The case is peculiar, containing much that is interesting, and much that is doubtful. But when we are asked whether the evidence warrants the Sheriff in saying that there is a strong or probable presumption that the prisoner committed the offence mentioned in the warrant, I cannot see reason for doubting that the evidence warranted the Sheriff in coming to the conclusion at which he arrived. We are not dealing with the merits of the case, and all we can say is, that there is a reasonable presumption against the prisoner. Hereafter there may or may not turn out to be sufficient proof against him, but when we are asked to consider whether these depositions are such as to make it reasonable for the Sheriff to grant a warrant, I am of opinion that he was well entitled to do so.

The question on which I felt a difficulty, which is not altogether removed, was whether there was here a sufficient accusation, in terms of the

18,

second section, of a crime committed in British
territory. Probably the sufficient answer is that
which has been submitted to us, that the crime,
if committed at all, was a crimen continuum.
A motive for it is brought out in the evidence-
and it appears that the prisoner started with the
native said to have been murdered from British
territory, and took him into the Orange Free
State, out of which he never returned alive, and if
the evidence is sufficient, as I think it is, to
raise the presumption that the murder was con-
templated when he started, then the crime may
be said to have been begun in British territory,
and the jurisdiction is sufficiently established.
I therefore propose that we affirm the decision
of the Sheriff.

LORD YOUNG-I concur in all respects, and it is only because this is the first case of the kind that has been before us that I say anything at all. The case is one under the Fugitive Offenders Act 1881, and, to begin with, it is conceded and clear that that Act only applies to offences committed within Her Majesty's dominions. The particular section under which we are acting is the third, which provides that when a warrant has been issued in one part of Her Majesty's dominions for the apprehension of a fugitive from that part, such warrant may be indorsed by the Secretary of State. Now, the warrant here is granted by a Judge in one part of the dominions for the apprehension of a fugitive from that part, and it has been endorsed by the Secretary of State. It is not a warrant in terms with which we are very familiar, and is not such as we could sanction as according to our practice if granted in this country. It sets forth a date indeed which we hold to be material, but it gives no locus, a thing which our practice requires, and though it sets out that the fugitive is charged with murder, it does not say who is alleged to have been murdered. I assume, however, there being no evidence to the contrary, that it is a regular warrant according to the practice at Kimberley, the part of the dominions at which it was granted, and it is endorsed by the Secretary of State. Now, section 5 refers to the offence mentioned in the warrant, and we must identify it by the evidence which was submitted for that purpose to the Sheriff. Now, the Sheriff was very properly satisfied that the offence was the murder of a man Jonas on or after 13th March, and prior to the finding of the body on 13th April. The evidence shows that that is the "offence mentioned in the warrant." Now, irrespective of the matter of setting out a locus, the evidence was such that the Sheriff could not have besitated in committing for trial according to our practice. It is in evidence that the accused and others desired the removal of Jonas from Kimberley, and hired a cart and drove him away, and that they handcuffed him and struck him, and the dead body of a man said to be Jonas was afterwards found at Kamfers Dam, which I take to be admitted is in Kimberley. No magistrate would hesitate to commit for trial on such evidence. There is still the difficulty about locus indeed, because the place where serious violence is said to have been used is in Orange Free State. It is a question yet to be tried whether there was a murder at all, and it is a fair question for trial whether the crime, if any, was committed in

. Cape Colony

18

Kimberley or in the Orange Free State. It is proper that that question should yet be tried, but there is fair evidence for averring, as the prosecutor is doing, that it was committed in Kimberley. If the prisoner, desiring to get him away, gets him in any manner out of Kimberley, and is seen to administer violence to him across the border, and the evidence stops there, and is only taken up again by the body being found at a place on the Kimberley side of the borders, then there is a return to the jurisdiction where the proceedings commenced. If Kimberley were the county of Roxburgh, and Orange Free State were England, and we had the man removed as in this case into England, maltreated there, and his body afterwards found in a well in Roxburgh, no magistrate would hesitate to convict as for an offence committed in Roxburgh. Applying here the consideration which the Sheriff is entitled by the statute to do, I cannot doubt that he acted rightly in granting the warrant before us.

There remains an appeal to the Secretary of State, since if we hold that the Sheriff is right, he must report to the Secretary of State, and it remains with him to say if he will grant warrant to transmit the prisoner. It is not unimportant that the principle of our judgment be declared. We have referred to the evidence as if it were precognition, not as evidence concluding the guilt of the prisoner-his case may result in an acquittal-but it is such evidence as any magistrate might proceed upon in committing a prisoner for trial.

LORD M'LAREN-I entirely agree with what your Lordships have said as to the Sheriff's judgment upon the evidence, and do not wish to make any observations upon that matter. I think the Sheriff has taken a reasonable view of the evidence, and that being so, it would not be according to the practice of this Court to interfere. The statute makes the Sheriff or magistrate the judge of the sufficiency of the evidence, and he is to consider it in the same light as in an application to commit a prisoner in order to trial for a crime committed within the territory.

Upon the legal aspects of the case there are two points upon which I desire to say a few words-the first relating to the form of the warrant, the second to the jurisdiction. Now, it appears to me, on a consideration of the statute in all its clauses, that it was not intended that the Sheriff or magistrate should form or express an opinion on the validity of a warrant which is sent to him for the purpose of determining whether the prisoner ought to be returned to the country from which he is a fugitive. It comes to the Sheriff as a Secretary of State's warrant, because it is the Secretary of State's indorsation which gives currency to the warrant in this country; and it comes to the Sheriff through that official channel for the very purpose, as I conceive, of relieving the Sheriff from the responsibility of considering the validity of the document, which he may well be incompetent to adjudicate upon. If there is any good objection to the form of the warrant it will no doubt be considered in limine by the Secretary of State, who has facilities for inquiry as to the laws and usages of colonial governments which the Sheriff does not possess. The Sheriff, I take it, is to re

ceive the warrant issued by his official superior as a valid warrant in all respects, and his sole duty is to consider whether the evidence laid before him is such as will justify him in committing the prisoner for trial upon the specified charge. Now, the views I have expressed enter to a certain extent into the question of jurisdiction. It is essential to the validity of the warrant that the offence charged is an offence supposed to be committed in the Queen's dominions, otherwise the Secretary of State would have no jurisdiction. But this need not be expressed in the warrant, and in my opinion the warrant is to be assumed to be in proper form. But if it appears on the face of the proceedings-I mean on the depositions and oral evidence that the offence was not committed within Her Majesty's dominions, then I apprehend it will be the duty of the magistrate to refuse to grant a warrant of commitment for trial. But I am bound to say that considering the evidence for the purpose of satisfying myself whether the offence was or was not committed within the Queen's territory, I cannot accept the view that a crime was not committed within the Cape Colony. On the contrary, I think that there is evidence that the crime was planned in Kimberley and begun to be carried out there. I think that the depositions point to this conclusion, that from the time the unfortunate man entered the car until he was last seen he never was a free agent. If it were necessary, I should be prepared to support the commitment on the words of the 21st section of the statute, which introduces our doctrine as to crimen continuum. I think that at common law as well as upon the terms of that section there was evidence sufficient to warrant the Sheriff in holding that the crime which was begun and to a certain extent carried out in Kimberley, and apparently completed at Kamfers Dam, was thus committed in the Queen's dominions.

The Court refused the bill.

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(Before Lord Justice-General, Lord Young, and
Lord Adam.)
ROBERTSONS V. CAIRD (P.-F. OF KINCARDINE-
SHIRE).

Justiciary Cases-Indictment-Conviction-Alternative Charge.

Where a libel was expressed alternatively, but there was no proper inconsistency between the charges, but only a second narrative of the same facts in an alternative form, the Court refused to suspend a sentence proceeding on a verdict of guilty as libelled, on the ground of general conviction following on an alternative charge.

Fraudulent Bankruptcy-Debtors (Scotland) Act 1880 (43 and 44 Vict. c. 34), sec. 13-" Debtor" -Art and Part.

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