the Motor Car Act 1903, section 1, appealed. Held, dismissing the appeal, that in the circumstances the question was purely one of fact, with the decision of which by the Sheriff-Substitute the Court could not interfere.

Observed (per the Lord Justice-Clerk) that he would have convicted in such circumstances.

Justiciary Cases Review Sentence Endorsation of Licence-Modification of Sentence Removal of Endorsation of Licence Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, cap. 65), sec. 75-Motor Car Act 1903 (3 Edw. VII, cap. 36), sec. 4 (1).

-

On conviction of driving a motor car at a speed which was dangerous to the public, the Sheriff Substitute ordered the licence of the accused to be endorsed.

Held, on appeal, that the High Court had no power to modify the sentence imposed by the Sheriff-Substitute in the way of removing the endorsation of the licence.

The Motor Car Act 1903 (3 Edw. VII, cap. 36) enacts-Section 1 (1)-"If any person drives a motor car on a public highway recklessly or negligently, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the highway, and to the amount of traffic which actually is at the time, or which might reasonably be expected to be, on the highway, that person shall be guilty of an offence under this Act." Section 4 (1) "Any court before whom a person is convicted of an offence under this Act. . . other than a first or second offence, consisting solely of exceeding any limit of speed fixed under this Act... (c) if the person convicted holds any licence under this Act, shall cause particulars of the conviction .. to be endorsed upon any licence held by him. . . .”

66

The Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, cap. 65), sec. 75, provides Provided always that the High Court may amend any conviction, sentence, judgment, order of court, or other proceeding, or may pronounce such other sentence, judgment, or order as they shall judge expedient."

Richard Cromwell, motor car driver, 55 Watson Crescent, Edinburgh, was charged in the Sheriff Court there, on 17th February 1911, at the instance of Robert Wemyss Renton, Procurator-Fiscal of Midlothian, on a summary complaint, which stated that "On 17th January 1911, on the public highway in Morningside Road, at Churchhill, both in Edinburgh, being the driver of a motor car then on said highway, he did drive said motor car at a speed, videlicet, nine miles or thereby an hour, which was dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and the use of the highway at said place, and to the amount of traffic which actually was at the time, or which might reasonably have been ex

v, Rerton

,

pected to be thereon, contrary to the Motor Car Act 1903, section 1, such offence being a first offence.'

The accused was convicted by the SheriffSubstitute (GUY), and was sentenced to pay a fine of £1, and in default to ten days' imprisonment. An order was also made for endorsation of the accused's licence. The accused took a Case for appeal, in which the Sheriff - Substitute stated "The following facts were proved - 1. At 5:55 p.m. on the date libelled, the witness Macfarlane was about to board a cable car going northwards at the Churchhill "Car stop," Morningside Road, Edinburgh. The cable car had stopped to take up passengers, and the conductor was standing on the platform to the rear of the car. The space between the nearest cable car line and the kerb measures ten feet, from which falls to be deducted the width of the footboard, measuring fifteen inches or thereby, leaving eight feet nine inches of roadway between the cable car and the kerb. The breadth of the motor car was six feet. 2. The stopping-place was well lit, and the road was dry and in good condition, and the evening was clear. 3. When the cable car was at a standstill, and when the motor car driven by the appellant was about twenty yards to the scuth of the cable car and approaching it, there were four persons standing on the street in the space between the cable car and the kerb, all about to board the cable car. the witness Macfarlane, who was furthest from the cable car, saw the motor car approaching, he pressed those in front of him forward to hasten their progress in boarding the car. This movement drew the conductor's attention to the fact that some vehicle was approaching. By the time that the motor car had reached a position opposite the footboard of the cable car the three passengers who were in front of the witness Macfarlane had boarded the cable car; but the witness Macfarlane had not been able to do so, but had got as close to the cable car as he could, his feet being partly under the overhanging footboard, and he having taken hold of the upright rod in the middle of the conductor's platform and

When

drawn himself as near the cable car as possible. The motor car was then driven past the cable car between it and the kerb at a speed of not less than nine miles an hour, and just touched the witness Macfarlane's coat, but without leaving a mark or doing injury. The witness Macfarlane did not give any signal to the appellant to stop, but the appellant admitted that there was no duty on the witness Macfarlane to give him any signal. The conductor did not actually see the motor car till it was passing the witness Macfar lane. 4. The appellant had a clear view of the persons boarding the car, and there was no other traffic in the vicinity. 5. The only eye-witnesses of the occurrence who gave evidence, excepting the appellant himself, were the first two on the list for the prosecutor."

v

The following questions were stated for the opinion of the Court-"(1) Whether the appellant, in the circumstances above set forth, was rightly convicted? (2) Was it competent to order endorsation of the conviction upon appellant's licence, and intimation thereof to be made in terms of section 4, sub-section (c), of the said statute? (3) Was I, in convicting the appellant of the said offence, bound to order endorsation and intimation?"

Argued for the appellant-The evidence on which conviction proceeded was insufficient, and the Court were therefore entitled to interfere-Wright v. Mitchell, 6 Ad. 287, 1910 S.C. (J) 94, 47 S.L.R. 699. In any event the Court might modify the sentence by removing the endorsation of the licence. That course was competent under section 75 of the Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, cap. 65).

Counsel for the respondent were not called upon to reply.

LORD JUSTICE-CLERK The first point argued on behalf of the appellant was that the Sheriff-Substitute had proceeded on evidence on which he was not legally entitled to proceed. Now I have considered the findings in the case, and I see nothing to preclude the Sheriff-Substitute from convicting the appellant upon the facts stated in these findings. It is proved that the motor car driven by the appellant passed the tramway car on the near side when persons were getting into the car, and while the last person was not yet on the car, and that the motor car when it passed was going at the rate of not less than nine miles an hour. Now there is no occasion on which the driver of a motor car is bound to exercise more care than when his car is passing a tramway car, because such cars run in the centre of the street, and therefore persons intending to board a car, in order to reach it, must pass across the street to the car. In the present case four persons were standing in the street between the cable car and the kerb of the pavement, a space of ten feet. When the motor car came up at the rate of nine miles an hour, the person who had not had time to enter the cable car drew himself as near that car as possible in order to avoid the motor car, but, notwithstanding this, the motor car touched his coat. Whether in these circumstances the appellant was rightly convicted is a pure question of fact, on which we cannot interfere with the Sheriff - Substitute's decision, but while we cannot entertain the question, I think it right to say that in the circumstances I should have had no hesitation in convicting the appellant.

The next point argued was, that even if the conviction were to stand, we might alter the sentence by ordering the endorsation on the appellant's licence to be removed. I have very grave doubt whether we have power to do so. The Sheriff-Substitute was bound to order endorsation of the conviction upon the appellant's licence; he had no discretion in the matter. How then can we order

that to be cancelled which the SheriffSubstitute was bound to place on the certificate? If it is the law, as it is, that the certificate must be endorsed, we cannot disobey the law and order the endorsation to be deleted.

I may add, that even if we had a discretion in this matter, I do not see that there would have been any ground for exercising it here.

LORD DUNDAS-I agree with your Lordship on all points.

LORD SALVESEN-So do I.
The Court dismissed the appeal.

Counsel for the Appellant-Horne, K. C. Lippe. Agents Boyd, Jameson, & Young, W.S.

Counsel for the Respondent - A. M. Anderson, K.C., A.-D. D. Anderson, A.-D. Agent W. S. Haldane, W.S., Crown Agent.

Saturday, June 10.

(Before the Lord Justice-Clerk, Lord Dundas, and Lord Salvesen.) WHITE AND OTHERS v. JEANS. Justiciary Cases Record - ProcedureNew Proceeding - Irregularities - New Proceeding not Invalidated by Prior Irregularities - Order for Detention in Industrial School-Children Act 1908 (8 Edw. VII, cap. 67), sec. 58.

A child who pled guilty to a charge of theft was ordained by the magistrate to appear for sentence on a later day. On the day specified, instead of pronouncing sentence, the magistrate ordered the child to be sent to an industrial school, in terms of the Children Act 1908, sec. 58.

Held, on review, that the order for sending the child to an industrial school was a new proceeding, and was not affected by irregularities in a previous interlocutor appearing in the record of proceedings, and suspension refused.

Observations (per the Lord JusticeClerk) as to unauthenticated erasures and alterations appearing in the record of proceedings.

Opinion (per Lord Salvesen) that an interlocutor in which one word stood deleted but not initialed was sufficiently authenticated by the signature of the magistrate following the words "one word delete."

&016, 1911

Justiciary Cases-Children Act 1908 (8 Edw. VII, cap. 67), sec. 98-Citation of Father of Child Charged with Offence - Attendance of Father of Accused at Court.

The Children Act 1908, section 98 (1), provides" Where a child or young person is charged with any offence, or where a child is brought before a petty sessional court on an application for an order to send him to a certified industrial school, his parent or guardian may in any case, and shall, if he can be found and resides within a reasonable distance, and the person so charged or brought before the court is a child, be required to attend at the court unless the court is satisfied that it would be unreasonable to require his attendance."

Held that it is unnecessary to formally cite a parent to attend the court along with his child so long as he receives reasonable notice of the trial. The Children Act 1908 (8 Edw. VII, cap. 67), section 58, enacts-" Any person may bring before a petty sessional court any person apparently under the age of fourteen years who... (b)... is found wandering and having no parent or guardian or a parent or guardian who does not exercise proper guardianship . . .; and the court before which a person is brought as coming within one of these descriptions, if satisfied on inquiry of that fact, and that it is expedient so to deal with him, may order him to be sent to a certified industrial school. . . .

Annie White and Gilbert White, children of Robert White, 67 Orchard Street, Partick, and residing with him there, were charged with theft in the Burgh Police Court at Partick on 19th September 1910, on a summary complaint at the instance of Alexander Jeans, Burgh Prosecutor. Both accused pleaded guilty, and on being brought up for sentence, on 22nd Septem ber 1910, Annie White was admonished and dismissed by the Magistrate, and Gilbert White was ordered to be sent to an industrial school.

The accused, along with their father, brought a bill of suspension, in which they made, inter alia, the following averments-"(Stat. 3) There was not left with said complaint or served upon the complainer Robert White any requisition or warning to attend at the Court during the said diet on 19th September, or at any other stage of the proceedings, conform to section 98 of the Children Act 1908. The said house - 67 Orchard Street is within a reasonable distance of the Court Hall at 25 Wilson Street. (Stat. 4) At the diet on 19th September 1910 the complainers Annie and Gilbert White attended and pleaded guilty to the charge, and the following interlocutor was pronounced in the cause-Partick, 19th September 1910.-Compeared the accused, Annie White and Gilbert White, and after answering to the complaint severally pleaded guilty. (One word delete).-GEO. DOUGLAS. Thereafter there appears upon the record and minutes of proceedings in the case the following, written diagonally across the top corner

Ors. v. Jeans, June 10, 1911.

are

'Contd. to 19th December, at 9 a.m., for sentence. G. W., five years to training ship. This writing is unsigned and undated. Further down the page of the record there appears the following pretended interlocutor - Eo die. Sentence deferred till 22nd September 1910, at nine a. m., when accused ordained to appear.— GEO. DOUGLAS, Judge.' The words 22nd September' in said interlocutor plainly written upon an erasure, and the alteration, which it is averred has been made upon the interlocutor as originally written out, is not authenticated in any way. (Stat. 5) The said complainers Annie White and Gilbert White again compeared upon 22nd September 1910 at the Court Hall, when certain procedure to be hereinafter referred to took place. It is believed and averred that at the said diet or hearing or upon the said date no order, interlocutor, conviction, or sentence was either written out or signed. The interlocutor next in order upon record and occupying a position immediately below the said pretended interlocutor of 19th September 1910 is the following:-Partick, 19th December 1910.— Admonished and dismissed the said accused Annie White. - ROBERT GIBSON, Judge.' At the foot of the same page and after an interval of space there appears on the record the following-Partick, 22nd September 1910.-Sentence deferred till Monday, 19th December 1910, at 9 o'clock a.m., when accused Annie White ordained to appear.-GEO. DOUGLAS, Judge.' The word 20th' has been partially erased and above it the word 22nd' has been written. This erasure and alteration is also entirely unauthenticated. Moreover, from the position of the said pretended interlocutor it is evident, and the complainers aver, that it was written upon the record and signed at some date posterior to the 19th day of December 1910, or at least a date posterior to the 22nd of September 1910. There appears to have been an attempt made to replace the said pretended interlocutors in the temporal order of dates by means of a device of reference crosses at the signatures of the said George Douglas. The said device is incompetent, illegal, and inoperative for any purpose. (Stat. 6) In addition to the foregoing writings or interlocutors, there appears on the record of proceedings, written upon a separate sheet of blue paper which is pasted or fastened in so as to be interleaved between two of the sheets thereof and to appear prior to the three last - mentioned interlocutors, a pretended order, warrant, interlocutor, or sentence in the following terms:- [Interleaved.] — ‘County of Lanark, to wit-At Partick, the twenty-second day of September 1910, the Court, in respect that Gilbert White of 67 Orchard Street, Partick, a child apparently under the age of 14 years (having been born, so far as has been ascertained, on the 19th day of July 1898) has been found wandering and having a parent who does not exercise proper guardianship over him; that the said child appears to have resided in the district of the School Board of Govan, and that his

& Ors. v. Jeans

10, 1911

religious persuasion appears to be Protestant; orders the said child to be sent, under the provisions of the Children Act 1908, to the certified Industrial School ship Empress," Row, in the county of Dumibarton (the managers whereof are willing to receive him), and therein be detained until he attains the age of 16 years, and for this purpose grants warrant to all concerned; and orders Robert White, parent of said child, to pay to the Chief Inspector of Reformatory and Industrial Schools for the maintenance of said child the sum of 1s. weekly and every week during the whole of the time for which the said child is liable to be detained in the said school; and grants warrant as accords of law.GEORGE DOUGLAS, Magistrate.' (Stat. 7) At the said diet of the Burgh Court held upon 22nd September 1910 the complainers Annie White and Gilbert White compeared. The complainer Robert White was not present in Court, being in attendance at his usual work. He had not been warned or required to attend at the said diet, and he was not in any way notified that any application relative to detention in an industrial school was to be made relative to his son the complainer Gilbert White. He was not cited as a witness or informed in any way that the respondent proposed to satisfy the Court that the said Gilbert White had no parent or guardian or had a parent who did not exercise proper guardianship of him. At the said diet the complainer Annie White was told to come up again on 19th December; with regard to the complainer Gilbert White the original complaint was not proceeded with, but on compearing he was brought before the Court as coming within the description of a person apparently under the age of fourteen years given and provided in section 58, sub-section (b), of the Children Act 1908. No previous note was given to the complainer Gilbert White or to the complainer Robert White that any such step would be taken. No evidence whatever in support of the said description was led or tendered at the said diet, and no inquiry was made as to the facts involved in the said description. No finding as to such facts and description was ever pronounced. (Stat. 8) In point of fact the complainer Gilbert White was not found wandering in the sense of the said statute. The said complainer lived with his said parent the complainer Robert White and with his mother at 67 Orchard Street, and attended school in the ordinary course. The complainer Robert White exercised all proper guardianship and control in every way usual and necessary in the class to which the complainers belong."

The respondent lodged answers, in which he, inter alia, stated-" Along with the complaint served on the complainers Annie White and Gilbert White, there was left for the complainer Robert White at his house, 67 Orchard Street, Partick, a citation to attend the Court along with his children on 19th September 1910. The said Robert White did not, however, attend said Court, but his wife accompanied the children to

the Court, and explained that her husband the said Robert White, could not get away from his work. At the said Court on 19th September 1910 both the complainers Annie White and Gilbert White pled guilty to the crime of theft with which they were charged. No sentence was then pronounced, but the complainers Annie White and Gilbert White were ordered to appear again before the Magistrate in Court on 22nd September. The object of this continuation was to see if any arrangements could be made for getting the said Annie White and Gilbert White sent away, as they were leading other children astray. The Chief-Constable of Partick sent for the complainer Robert White on 21st September 1910, and fully explained the position of matters to him." The said Robert White then expressed his desire that his son Gilbert should be sent to the Clyde training ship 'Empress,' and requested to be exempted from attending the adjourned diet of the Court on 22nd September 1910, explaining that he had difficulty in getting away from his work. At the adjourned diet on 22nd September 1910 the complainers Annie White and Gilbert White attended, and were again accompanied by their mother. At the adjourned diet on 22nd September 1910 the presiding Magistrate, after inquiring into the circumstances above narrated, and being satisfied that the said Gilbert White was a proper subject for the order, granted an order committing the said Gilbert White to the training ship 'Empress.' The said order was in no sense a part of the police proceedings under the before-mentioned complaint. The order

was pronounced entirely in the interests of the said Gilbert White, and to prevent the stigma which would attach to him if he was sent to a reformatory as a convicted thief."

Argued for the complainers-(1) There had been no undue delay. (2) It was fatal to the proceedings that the father of the children was not cited to appear and was not present at any of the diets in the case. No execution of a citation appeared in the record of proceedings. (3) The unauthenticated deletion and alterations in the interlocutors were sufficient to warrant suspension-Mackenzie v. Gray, November 19, 1898, 2 Ad. 625, 1 F. (J.) 23, 36 S.L.R. 71. Particularly the interlocutors adjourning the trial being vitiated rendered the proceedings bad-Corstorphine v. Jamieson, December 10, 1909, 6 Ad. 154, 1910 S.C. (J.) 21, 47 S. L.R. 247.

Argued for the respondent-(1) The suspension ought to be refused on the ground of delay in bringing it. (2) There was no obligation on the respondent to formally cite the father. All that was necessary was that the father should be duly notified of the proceedings, and that was done. (3) The deletion in the interlocutor of 19th September was quite sufficiently authenticated by the words "one word delete." The errors objected to in the proceedings were matters of form, and in terms of the Summary Jurisdiction (Scotland) Act 1908

(8 Edw. VII, cap. 65), sec. 75, afforded no ground for suspension. Further, they occasioned no prejudice to the accused -Ogilvy v. Mitchell, June 16, 1903, 4 Ad. 237, 5 F. (J.) 92, 40 S. L. R. 841, In any event the proceeding for sending the boy to an industrial school was a new proceeding initiated on 22nd September, and was not affected by any errors in the prior proceedings which were superseded.

LORD JUSTICE-CLERK - We are called upon to deal with two cases here. The first is that of the girl Annie White, and the second that of the boy Gilbert.

In the case of the girl I think it is clear that there is no ground for suspension. The complainer's whole case depends on the form of the proceedings which took place in the Court below, and however good her objections might have been if timeously taken, the delay of nine months which has taken place in bringing the matter up bars her from insisting in them now.

The

If there had not been the delay, I think there would have been a serious question for our consideration in her case. unauthenticated erasure and change of dates appearing in the record of proceedings constitute serious irregularities, and I think erasures, as distinguished from mere alterations, are always to be looked upon with suspicion as being intended to conceal something.

The case of the boy Gilbert is also open to the same criticism as regards delay in bringing the suspension, and I should have been inclined to hold that it supplied a sufficient ground for refusing to interfere in his case. But in the boy's case the facts supply no good reason for altering the order pronounced in the proceedings taken with a view to sending him to an industrial school. These were new proceedings instituted on September 22nd in order to avoid the necessity of convicting him of a crime, and these are not affected by any defects there may have been in the prior proceedings, which were abandoned. I see nothing irregular as regards these new proceedings.

It is said for the complainers that the father ought to have been judicially cited to appear with the children at the Court. There is no reason, however, why there should have been any formal citation of the father so long as he was given due notice. On the facts as stated here we must take it that the father was in communication with the authorities about the matter, and sent his wife to attend the Court with the children, stating that he could not leave his work.

I think the proceedings in this case were quite regular, and see no ground for inter ference. In any case, I should have held that it was too late to bring a suspension on the grounds stated.

LORD DUNDAS-I also am for refusing this bill of suspension, and agree with all your Lordship has said.

LORD SALVESEN-I concur. I shall only add that it would have been very unfor

tunate if we had been obliged to sustain the objections to these proceedings.

In the case of the girl it is clear that it was for her advantage, in spite of a plea of guilty having been recorded in what I hold to be a properly authenticated interlocutor, the Magistrate saw fit to dismiss her with an admonition instead of passing sentence. In the case of the boy I concur with what your Lordship in the chair has said.

The Court refused the bill of suspension. Counsel for the Complainers-M. Mackay. Agents St Clair Swanson & Manson, W.S.

Counsel for the Respondent Lippe. Agents-Simpson & Marwick, W.S.

COURT OF SESSION.

Saturday, June 17.

FIRST DIVISION.

[Sheriff Court at Kirkcaldy. ARNOTT v. FIFE COAL COMPANY, LIMITED.

Master and Servant-Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), Sched. I, secs. 15 and 16-Termination of Compensation-Remit to Medical Referee -Earning Capacity-Proof.

The employer of a workman who had lost an eye, and who had been in receipt, first of full, and subsequently of partial compensation, having proposed to terminate the weekly payments, a remit was made to a medical referee under sec. 15 of the First Schedule annexed to the Workmen's Compensation Act 1906. The medical referee having reported that the workman was as fit as any other one-eyed man to resume work underground, his employers lodged a minute craving the Sheriff-Substitute to end the compensation as from the date of the medical referee's report. The workman lodged answers, in which he denied that he had completely recovered, and at the hearing on the minute and answers asked for a proof as to earning capacity. In reply to the Sheriff-Substitute his agent stated that he was not in a position to maintain that the earning capacity of a one eyed miner was less than that of a two-eyed miner, whereupon the Sheriff-Substitute refused to allow a proof and declared the compensation ended.

Held that the claimant was entitled to a proof as to his wage-earning capacity, and appeal sustained.

This was a Stated Case on appeal in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), between William Arnott, miner, Denside Cottage, Kirkcaldy, appellant, and The