. Mags, of Edinburgh (DEWAR) approved of an issue in ordinary form for the trial of the cause. The defenders reclaimed, and argued The pursuer's averments were irrelevant, for there was no averment either that the defenders knew, or ought to have known, of the danger-Thomson v. Greenock Harbour Trustees, December 10, 1875, 3 R. 1194, 13 S. L. R. 155; Keeney v. Stewart, 1909 S.C. 754, 46 S. L.R. 546-or that the structure of the fountain was defective. Argued for respondents-The averment that the defenders failed to properly regulate the flow of the fountain was a good averment of negligence. They referred to Dublin United Tramways Company v. Fitzgerald, [1903] A.C. 99; and Nelson V. County Council of Lower Ward of Lanark, December 11, 1891, 19 R. 311, 29 S.L.R. 261. LORD PRESIDENT-I do not think that this record contains any relevant averment of negligence against the defenders. The facts out of which the action arises are alleged to be that the deceased lady, the wife of the principal pursuer, and the mother of the rest, slipped on a piece of ice which had formed on the foot-pavement on the north side of Candlemaker Row in the immediate vicinity of "Greyfriars Bobbie's Fountain." It is impossible to maintain that a mere averment that a person in Edinburgh slipped in the month of January on a piece of ice on the pavement is tantamount to an averment of negligence on the part of the road authority, that is to say, the Town Council. It would be putting upon them a duty to keep every street in Edinburgh free of ice. The only thing the pursuers do say is that the defenders were proprietors of the fountain, that it was their business so to regulate it as to prevent an overflow, and that the ice must have been formed as the result of an overflow. That does not follow, for it might have been caused by someone drawing water and spilling some of it. Even supposing it was caused by an overflow, it might have been due to causes over which, for the moment, the authorities had no control. I do not say that there would not be liability for letting a fountain get into such a condition as to cause danger to the public, and in estimating what the danger is you must take into account the ordinary weather conditions, one of which is frost. In such a case I can only imagine negligence coming under one or other of two heads-either that there was some structural defect in the fountain which made overflows probable, or that the fountain having for some temporary or fortuitous cause overflowed, this dislocation of the ordinary arrangements had been brought to the knowledge of the authorities or had existed for such a length of time that they ought to have known, and they had failed to remedy the temporary defect. There is a case (Shepherd v. Midland Railway Company, 25 Law Times 879) decided in England about ice on a railway platform, in which 9, 1910 Baron Pigott said-"The question whether there was any evidence of a neglect of duty is a question of degree. If there had been only a very small piece of ice in a place where the railway servants had no opportunity of seeing it, there may have been no negligence; but when we have a layer of ice three-quarters of an inch thick and extending half across the platform, and that too at three o'clock in the afternoon, there was plenty of opportunity for them to have seen it and to have removed it." It was suggested in the course of the argument in that case that if a passenger had thrown a piece of orange peel from a train on to the platform and a person had slipped on it, the company would not be liable on the ground of negligence; and Baron Pigott remarked-"They might be if the orange peel had been allowed to remain a long time upon the platform without being swept up." I agree with that statement of the law. The pursuers here do not aver either a structural defect nor a failure on the part of the defenders to deal with a temporary overflow, the existence of which either was or ought to have been known to them; they only make the naked averment that the defenders did not so regulate the fountain as to prevent it overflowing, and that is, in my opinion, insufficient. We have to be satisfied that there is a relevant case before we send it to a jury, as was expressly laid down by Lord Robertson in the recent oase of Toal v. North British Railway Company (1908 S.C. (H.L.) 29), where the judgment of this Court disallowing an issue was reversed on the ground that in that particular case there was a sufficient averment. I think that the pursuers here have stated no relevant case, and that the issue should not be allowed. LORD KINNEAR and LORD JOHNSTON concurred. LORD SALVESEN was sitting in the The Court recalled the Lord Ordinary's interlocutor and dismissed the action. Counsel for Pursuers (Respondents) M'Kechnie, K.C.-A. A. Fraser. AgentP. Maclagan Morrison, Solicitor. Counsel for Defenders (Reclaimers) Cooper, K.C.-W. J. Robertson. AgentThomas Hunter, W.S. v. Mitchell 15 HIGH COURT OF JUSTICIARY. Tuesday, November 15. (Before the Lord Justice-Clerk, Lord M CALL v. MITCHELL. Justiciary Cases-Regulation of MarketsOld Established Market-Bye-laws-Ultra vires-Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 277-Markets and Fairs Clauses Act 1847 (10 and 11 Vict. cap. 14). The Burgh Police (Scotland) Act 1892, sec. 277, enacts". . . For the purpose of enabling the commissioners to establish markets in manner foresaid, or to improve and regulate markets already established in any burgh, there shall be incorporated with this Act the provisions of the Markets and Fairs Clauses Act 1847 and the Markets and Fairs (Weighing of Cattle) Act 1887, in so far as the same relate to markets; with respect to the holding of the market or fair and the protection thereof; and with respect to the weighing of goods and carts; and with respect to the stallages, rents, and tolls; and with respect to bye-laws." The Markets and Fairs Clauses Act 1847 authorises (sec. 42) the making of bye-laws for the regulation of markets, but provides (sec. 1) that the Act "shall extend only to such markets or fairs as shall be authorised by any Act of Parliament hereafter to be passed, which shall declare that this Act shall be incorporated therewith." A person was convicted of a contravention of bye-laws made by the magistrates of a burgh, in terms of the Burgh Police (Scotland) Act 1892, for the regulation of a market established therein long prior to 1847. The bye-laws, inter alia, provided for the appointment of a "market officer," who should allot stances, and whose decision as to space and charge for each stance should be final, and further that no one should expose goods for sale on any stance without his permission. Held, on appeal, that the bye-laws were not ultra vires of the magistrates, in respect (1) that the Act of 1892 in extending to all markets within police burghs the provisions of the 1817 Act did not limit their application, as the Act of 1847 did, to markets established after that date; and (2) that the appointment of a "market officer" with the powers and duties in question was both reasonable and proper. Justiciary Cases-Complaint-Competency -Aggravation - Previous ConvictionFounding on Previous Conviction then under Appeal. A person was convicted of an offence on a summary complaint in which a previous conviction for the same offence, obtained against him shortly before, was libelled as an aggravation. The previous conviction in question was under appeal to the High Court of Justiciary, and had not then been disposed of. Held, on appeal, that the previous conviction could not be competently libelled, and conviction quashed. The bye-laws made and approved by the Magistrates of Peterhead, and subsequently duly confirmed, for the regulation of the market, in terms of the Burgh Police (Scotland) Act 1892, the Markets and Fairs Clauses Act 1817, and the Markets and Fairs (Weighing of Cattle) Act 1887, were in the following terms:-"1. The market place shall comprehend the area of Broad Street of the burgh, but subject always to the use therein for ordinary traffic. 2. The stances of said market place shall be given off by a person to be appointed by the Town Council, who shall be designed as the market officer,' and whose decision in regard to the space and charge for each stance shall be final and binding. No person shall expose goods for sale on any of the stances without the permission of the market officer, and no person shall occupy more than the area of the stance allotted to him. . . . . Any person infringing any of the foregoing rules, regulations, orders, and bye-laws, shall for each offence, on conviction, be liable to a penalty not exceeding 40s., to be levied, recovered, and applied in terms of the Acts of Parliament above mentioned and referred to." did On 21st July 1910 Daniel Patrick M'Call, auctioneer, Peterhead, was charged in the Burgh Police Court there on a summary complaint at the instance of Henry B. Mitchell, Burgh Prosecutor, setting forth that on 5th July 1910 the accused expose for sale, watches and jewellery, on a stance in the market place in said burgh, near the Reform Monument, Broad Street, in said burgh, without permission of James Dickie, Burgh Surveyor, residing in Balmoor Terrace in said burgh, the market officer appointed by the Town Council of said burgh, contrary to section 2 of the rules, regulations, and bye-laws, for the said market place, made by the Provost, Magistrates, and Councillors of the Burgh of Peterhead, in virtue of the powers contained in section 277 of the Burgh Police (Scotland) Act 1892, and Acts therein referred to, on the 4th day of February 1907, and confirmed by the Sheriff of Aberdeen, Kincardine, and Banff on the 3rd day of May 1907." The accused was convicted by the Magistrate and sentenced accordingly. Thereafter he obtained a case for appeal to the High Court of Justiciary. While this appeal was pending the accused was again charged in the Burgh Police Court with two subsequent offences of a similar nature and convicted. In the second complaint the conviction of 21st July was libelled as an aggravation. The accused having obtained a case for appeal in the second case also, both cases came before the High Court of Justiciary together. The Magistrate stated the second case thus-"The appellant appeared in Court along with his agent, and on the complaint being read over to him his agent stated the following objections to the competency and relevancy of the complaint-(First) That as the said stated case was then pending before the High Court of Justiciary the said conviction could not competently be libelled against the appellant. (Second) That the right of market having been a grant from the Crown in the sixteenth century, and markets having been held in virtue thereof in the said Market Place from time immemorial, section 277 of the Burgh Police (Scotland) Act 1892, upon which the prosecution is based, is not applicable to such markets, and that the bye-laws are ultra vires, illegal, and invalid. (Third) That in any event Bye-law No. 2 is ultra vires illegal and invalid in respect that it is too restrictive and is unreasonable. The respondent offered to consent to an adjournment of the diet to enable the appellant to raise an action in a civil court for reduction of the bye-laws if desired. I repelled all the objections, and the appellant pleaded not guilty. The bye-laws were put in evidence, and it was proved by the respondent that the appellant was on a stance in the Market Place in Peterhead exposing his wares for sale on the dates libelled in the complaint, and that on those dates he had not the permission of the said James Dickie. No evidence was led as to the appointment by the Town Council of the said James Dickie as market officer except the evidence of the said James Dickie himself, and the appellant led no evidence on that head. It was also proved that the accused had been previously convicted of a similar offence on the 21st day of July 1910 in the same Court, when he was fined one pound or ten days. I found the charges proven, and fined the appellant one pound for each offence, and failing immediate payment ten days' imprisonment for each offence." The questions of law for the opinion of the Court in the first case were, inter alia, as follows-" (2) (c) Does section 277 of the Burgh Police (Scotland) Act 1892 apply only to new markets, or does it also apply to, inter alia, the Market Place in Peterhead? (d) Is said Bye-law No. 2 too restrictive and unreasonable? (5) Was the appellant rightly convicted of the offence charged?" The second case contained, inter alia, the following additional question--"(Second) Was it in the circumstances set forth competent to libel the previous conviction against the appellant ?" Argued for the appellant-(1) The byelaws were ultra vires in respect (a) that this was an old-established market, and the power to make such bye-laws was, on a fair construction of the Acts founded on, confined to markets established after 1817Campbell Irons on Burgh Police Act 1892, p. 450; (b) that the bye-laws themselves were unreasonable and therefore invalid-Smart v. Cadenhead, October 22, 1894, 1 Adam 474, 22 R. (J.) 1, 32 S.L.R. 7; Elwood v. Bullock, Nov. 15, 1910. 1844, 6 Q.B. (A. and E.) 383, 13 L.J. (Q.B.) 330; Da Prato v. Magistrates of Partick, 1907 S.C. (H.L.) 5, 44 S. L.R. 366; Dick v. Badart Freres, L.R., 10 Q.B.D. 387. (2) It was oppressive and incompetent to libel as an aggravation a conviction which was at the moment under appeal, and therefore not final. Argued for the respondent (1) The bye-laws were competently made in terms of section 277 of the Act of 1892. It was common ground that the Act of 1847 did not in itself apply to an old-established market, but section 277 expressly applied the powers of the Act of 1847 to such markets, from that time forward. In effect section 277 repealed the restriction to new markets of the Act of 1847 so far as markets in burghs were concerned. This bye-law was merely restrictive, and was not open to objection as a prohibitive one might have been-Municipal Corporation of Toronto v. Virgo, [1896] A.C. 88. (2) A previous conviction stood on the records against an accused until it was actually quashed. It was therefore quite competent to libel it here. LORD JUSTICE-CLERK-There are three points raised before the Court as regards this conviction. First, it is maintained that this bye-law was ultra vires and could not be made by the Commissioners of Peterhead that they had no authority to make it. That depends on the interpretation of the Burgh Police (Scotland) Act of 1892, which imported certain provisions out of the Fairs and Markets Act of 1847. The Act of 1892, section 277, enacts this as regards markets-[His Lordship quoted the section, vide supra]. Now it is contended on behalf of the appellant that the Act of 1847 applies only to markets established by Acts of Parliament after the date of the Act, and that accordingly the provisions of the Act of 1847, as to the making of byelaws, &c., in so far as incorporated into the Act of 1892, are inapplicable to a market which was in existence prior to 1847. I cannot give effect to that view. parts of the Act of 1847 which were incorporated in the Act of 1892 were, in my opinion, intended to apply to all markets, whether originating before or after 1847. So I have no difficulty in repelling the first objection. Those The second objection is that this bye-law is so unreasonable as to be illegal. I cannot entertain this objection either. The byelaw is as follows:-[His Lordship read the bye-law]. Now it seems to me that if the Commissioners have power to regulate the matters referred to in this bye-law, they must also have power to delegate to a responsible officer the duty of looking after those matters-an officer whose orders must be pro tempore obeyed. It does not follow that this officer's orders are final; they are subject to appeal, and he himself is liable to dismissal if he abuse his office. The market officer is simply a servant appointed to carry out what the Commissioners desire to be done, and therefore I cannot hold that there is anything ultra vires in the appointment of an officer with powers and duties such as those which we find were conferred upon the market officer in the present case. The third and remaining question occurs only in the second case, and it is this Whether it was competent to put in the first conviction, while that conviction was under appeal to this Court, as an aggravation of the second offence. I am of opinion that it was not competent to import that conviction into a new case. I do not think it was a fair thing to do, and I do not see that any public disadvantage could have accrued from its not being done. It was argued that the appellant persisted in his offence. But this is no reason for libelling the first conviction, it being open to the authorities to proceed against him as often as they please without libelling the previous conviction. The accused was maintaining that the first conviction was bad, and if it was he was not persisting in illegality. The main contention was that the conviction was a final judgment until it was set aside. But it is only final in so far as any judgment is final in one Court but subject to review in another. It was also urged that it would be highly inconvenient if appeals were allowed to have this effect. It would lead, it was argued, to frivolous appeals for no object but to delay the course of justice. The answer to this objection is that there is no long or reasonable delay in this Court. It is always open to a party to put in a note and ask and obtain an early hearing; in this case the prosecutor could have stated excellent reasons for having the case disposed of at an early date. But whether that is so or not I cannot think it is right to libel a previous conviction which is under appeal to this Court. It was admitted that if the first conviction were quashed by this Court the second would also fall to be quashed, but that would not relieve the convicted' person from the effect of the first conviction having been used against him at his second trial. LORD ARDWALL It appears from the admission of the parties that the burgh of Peterhead received a grant of market as far back as 1593, and that grant carried the right to make regulations and to charge dues in connection with the markets. We are not concerned, however, with the powers conferred by the original charter. Time went on, and in 1817 there was passed the Markets and Fairs Clauses Act, the object of which evidently was to embody in one statute a number of clauses which would be applicable and useful in all future Acts establishing markets or fairs throughout Great Britain. That statute took the same place as regards markets as the Railways and other Clauses Acts did with regard to railways and other undertakings. It is not open to doubt, and indeed it is matter of agreement between the parties, that if the Act of 1847 stood by itself it would not have applied here, Peterhead being an old market. But then we come to the Burgh Police Act of 1892, under section 277 of which the bye-laws here founded on were enacted. It is contended by the appellant that the Magistrates of Peterhead had no right to pass these bye-laws, because section 277 does not, it is argued, give any further powers to the magistrates of the burgh with regard to the right of market than they possessed either previous to that Act or to the Act of 1847. I cannot accept that argument. I think that section 277 incorporates and gives the benefit of the 1847 Act to all markets within police burghs whether established before 1847 or after that date. The words of the section are- . . . [His Lordship read the section-vide supra in rubric]. It appears to me by the section quoted there are plainly incorporated in the Burgh Police Act the provisions of the 1847 Act regarding bye-laws, and I cannot assent to the contention that the fact that the Act of 1847 was originally limited in its application to markets coming into existence after that date has the effect of limiting the powers of the commissioners under the Act of 1892 to markets established after 1847. I think it was the intention of the 1892 Act to give to the magistrates of all police burghs the powers contained in the 1847 Act with respect to markets, without taking into consideration whether their markets were established either before or since 1847. If it had been intended to limit the operation of section 277 to markets established since 1847, presumably the Act would have said so, but in the section as it stands it refers to and deals with "markets already established" without any limitation whatever as to the date when they were established. On these grounds I think that the Commissioners had power to make bye-laws subject to their approval by the Sheriff and Secretary of State. The second objection stated was that the bye-laws were too restrictive. I cannot assent to that. I think that the appointment of a market officer with the powers which the bye-laws conferred upon him was an excellent arrangement which saved the necessity of more formal procedure in connection with the allocation of space and charges for the various stances in the market. It is further said that the market officer might do great injustice. This just means that these bye-laws must be held to be unreasonable because that official might abuse his office. If this contention were sound many similar appointments in the country might be called in question on similar grounds. That disposes of the first case. In the second case a further point arises. It libels as an aggravation a conviction already brought under appeal to this Court. I agree with your Lordships that this second conviction cannot be allowed to stand. It was stated to us that it was necessary to adopt this course owing to the attitude which the appellant took up by continuing to contravene the bye-laws. I do not see that there was anything to prevent the Commissioners bringing new complaints, but there was no necessity for libelling the previous conviction as an aggravation. It was, in my opinion, quite irregular to do so when the conviction was under appeal. Accordingly I think that the conviction in the second case should be quashed. LORD DUNDAS-I concur. The Court in the first case found in answer to question 2 (c) that section 277 of the Burgh Police (Scotland) Act 1892 applied to the Market Place in Peterhead, answered the question 2 (d) in the negative, and question 5 in the affirmative, and further, found it unnecessary to answer the other questions in the case, and dismissed the appeal. In the second case the Court answered the second question in the negative, sustained the appeal, and quashed the conviction. Counsel for the Appellant—Cooper, K.C. -Macdonald. Agents-Lindsay, Cook, & Dickson, Solicitors. Counsel for the Respondent - Morison, K.C.-Macquisten. Agents - Alex. Morison & Co., W.S. Wednesday, November 16. (Before the Lord Justice-Clerk, Lord Justiciary Cases Statutory Offence Third Offence Previous Conviction under One Statute Founded on to Constitute Third Offence under Another Statute-Street Betting Act 1906 (6 Edw. VII, c. 43), sec. 1 (1)-Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), sec. 51; Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, c. 65), sec. 34 (7). 66 The Street Betting Act 1906 (6 Edw. VII, c. 43), sec. 1 (1), enacts- Any person frequenting or loitering in streets or public places, on behalf either of himself or of any other person, for the purpose of bookmaking, or betting, or wagering, or agreeing to bet or wager, or paying or receiving or settling bets, shall... (c) in the case of a third or subsequent offence. ... on conviction under the Summary Jurisdiction Acts, be liable to a fine not exceeding thirty pounds, or to imprisonment, with or without hard labour, for a term not exceeding three months without the option of a fine. The Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, c. 65), sec. 34 (7), enacts-"Previous convictions of an offence under any statute or order may be libelled as aggravations in any subsequent charge for the same kind of offence or any analogous offence. . . A person was charged with an offence against the Street Betting Act 1906, section 1 (1), on a complaint which stated that it was a third offence, in respect, inter alia, of a previous conviction under section 51 of the Burgh Police (Scotland) Act 1903 (3 Edw. VII, c. 33), which prohibited street betting. The accused was convicted of the offence charged and sentenced to imprisonment for three months without the option of a fine. Held, in a suspension, that it was incompetent to found on a previous conviction obtained under a different statute for the purpose of raising a second offence under the Street Betting Act 1906 into the category of a third offence, and conviction quashed. Observed (per Lord Ardwall) that while the Summary Jurisdiction. Act 1908, section 34 (7), might allow a previous conviction for an analogous offence to be libelled as an aggravation in the ordinary sense of the term, it did not warrant its being libelled as a substantive part of an offence against another statute. Thomas Hefferan, bookmaker, Motherwell, was charged in the Burgh Police Court there on 18th August 1910, at the instance of A. L. Wright, Burgh Prosecutor, on a complaint which stated-" On 13th August 1910, in Park Place and Russell Place, Park Street, in the burgh of Motherwell, being public places, you did loiter for the purpose of bookmaking and receiving bets, or agreeing to bet or wager, contrary to section 1 of the Street Betting Act 1906; and such offence in the case of you, the said Thomas Hefferan, is a third offence, you having been convicted in the Police Court of the burgh of Motherwell as follows:-On 26th October 1905 of a contravention of section 51 of the Burgh Police (Scotland) Act 1903, when you were sentenced to pay a penalty of ten pounds, and failing payment to imprisonment for a period of sixty days, and on 1st December 1909 of a contravention of the Street Betting Act 1906, when you were sentenced to pay a fine of fifteen pounds, and failing payment to imprisonment for a period not exceeding sixty days; whereby you are now liable to a penalty not exceeding thirty pounds or to imprisonment with or without hard labour for a term not exceeding three months without the option of a fine. At the trial the accused pled not guilty, but admitted the previous convictions as libelled. Evidence was then led, and the accused was convicted by the Magistrate and sentenced to three months' imprisonment with hard labour. As The accused brought a bill of suspension, in which he, inter alia, stated-"(4) The first offence libelled in said complaint is not a contravention of the statutory provisions of said Street Betting Act 1906. the complaint bears, the first offence with which the complainer is charged is a contravention of section 51 of the Burgh Police (Scotland) Act 1903, which is conceived in terms differing from those contained in section 1 (1) of said Street Betting Act 1906. Said first offence took place as stated in said complaint on 26th October 1905, prior to the passing of said Street Betting Act 1906. (5) The complainer is not charged with two prior offences against the provisions of the said Street Betting Act 1906, nor has he committed such offences. The |