Justiciary Cases Statutory Offence Betting "Place to which the Public have Restricted Right of Access"-Railway Mineral Depot-Street Betting Act 1908 (6 Edw. VII, cap. 43), sec. 1. The Street Betting Act 1906, section 1, subsection (1), enacts-"Any person frequenting or loitering in streets or public places for the purpose of... betting. shall" be liable to a penalty. Sub-section (4)-"For the purpose of this section. the words 'public place' shall include any public park, garden, or sea-beach, and any unenclosed ground to which the public for the time being have unre stricted access, and shall also include every enclosed place (not being a public park or garden) to which the public have a restricted right of access, whether on payment or otherwise, if at or near every public entrance there is conspicuously exhibited by the owners or persons having the control of the place a notice prohibiting betting therein." Held (dub. Lord Justice-Clerk) (1) that the mineral depot of a railway company, to which only railway servants and persons having business with the railway company had access, was "a place to which the public had a restricted right of access," and (2) that the depot being enclosed by walls and fences, except for a distance of about 213 yards where it was bounded by but was open to the main line of the company, which again was bounded by but was open to the main line of another company, was an "enclosed place" within the meaning of the Act. Walker v. Reid; p. 99.

Review-Competency. A motor car driver was charged with negligent driving, thereby causing collision with a waggonette, and after proof he was convicted by the Sheriff-Substitute. Subsequently in two civil actions for damages in another Sheriff Court it was held that the collision was entirely due to fault on the part of the driver of the waggonette, and that no negligence fell to be imputed to the driver of the car. Held-refusing a suspension-that the Sheriff-Substitute being final on the facts, although there had probably been a miscarriage of justice, it was not competent for the Court to interfere with the conviction. Observations (per Lord Salvesen) as to the anomalies of the law dealing with review in criminal cases. Dunn v. Mitchell, p

101.

Complaint-Relevancy-Motor Car— Charge of Negligent Driving - Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, cap. 65), Sched. C. A person was charged on a summary complaint with negligent driving of a motor car, whereby a collision occurred. The relevancy of the complaint was objected to on the ground that it failed to specify what the negligence charged consisted of. Held

that the complaint, being in the form provided by the Summary Jurisdiction (Scotland) Act 1908, Sched. C, was relevant, and suspension refused. Observations (per Lords Ardwall and Salvesen)

Dunn

as to the duty upon prosecutors in the Inferior Courts to consider whether, in adopting the short form contained in Schedule C of the Summary Jurisdiction (Scotland) Act 1908, they have done all that they ought to do in giving the accused fair notice of the nature of the offence with which he is charged. v. Mitchell, p. 101. Justiciary Cases-Complaint--RelevancyLicensing Laws-Breach of CertificateSelling Liquor on Passenger Vessel on Sunday-Penalty-Finance (1909-10) Act 1910 (10 Edw. VII, cap. 8), sec. 50 (3)-Offence Libelled as Falling under the Finance (1909-10) Act 1910, sec. 50 (3), while Licence Held under Passenger Vessels Licences (Scotland) Act 1882 (45 and 46 Vict. cap. 66), secs. 1 and 2-The Passenger Vessels Licences Act 1828 (9 Geo. IV, cap. 47), sec. 3-Interpretation Act 1889 (52 and 53 Vict. cap. 63), sec. 38 (1). The Finance (1909-10) Act 1910, which came into operation on 29th April 1910, provides-section 50 (3)—-that any person "required to take out a licence under this Act" for the sale of intoxicating liquor shall be liable, on contravention, to a penalty of £50 for each offence; and (section 53) that all such licences as require to be taken out annually, and which are in force at the passing of the Act, "shall, if they have not previously ceased to be in force, cease to be in force on the 30th day of June next." The holder of such an unexpired annual licence, containing a condition authorised by the Passenger Vessels Licences Amendment (Scotland) Act 1882 (45 and 46 Vict. cap. 66), sec. 1, was charged with an offence alleged to have been committed on a date subsequent to 29th April, but prior to 30th June, for which in terms of section 2 of the Act of 1882 he was liable to a penalty of £10. The complaint stated that the accused had contravened the Passenger Vessels Licences Act 1882, section 2, in respect that he did, contrary to a condition of his licence, sell intoxicating liquor on board a passenger vessel on a certain Sunday, and the complaint then proceeded-"Whereby and by force of the said last-mentioned section you are guilty of an offence within the meaning of section 50, sub-section (3), of the Finance (1909-10) Act 1910, and are liable to the Excise penalty of £50." Held that the complaint was irrelevant, in respect that the accused being the holder of a licence still in force at the date of the offence, was not a person "required to take out a licence" under the Finance Act 1910, and was therefore not liable to a penalty of £50. Guthrie v Wilson, p. 106.

Aggravation--Competency-Previous Convictions-Offence by Company-Conviction of Manager-Previous Conviction of Company in its Corporate CapacitySummary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, cap. 65), sec. 28 (2) (c). The Summary Jurisdiction (Scotland) Act 1908 enacts, section 28, that with regard to the prosecution of offences

committed by a company, "(2) proceedings may be taken against an individual representative of such company, association, or incorporation, as follows-. (c) The offence shall be deemed to be the offence of such company, association, or incorporation, and a conviction thereof may be libelled as an aggravation of any subsequent offence of the same nature by the same company, association, or incorporation, although the individuals charged and convicted are different." In a prosecution against the manager of a limited company for an offence committed by the company, held that it was not competent to libel against the manager a previous conviction for a similar offence obtained against the company in its corporate capacity. Campbell v. Macpherson, p. 147. Justiciary Cases—Advertisements—Licence for Hoardings Exemption of Railway Property Exception to Exemption "Property of a Railway Company Fronting any Public Street"-Edinburgh Corporation Act 1899 (62 and 63 Vict. cap. lxxi), sec. 45. The Edinburgh Corporation Act 1899 enacts, section 45, (1) that no person shall erect or exhibit any advertisement upon any land or structure, "except on such sites, hoardings, or other structures as the corporation may in writing license . . . Provided always that a licence shall not be necessary in respect of any site for advertisements... of the classes following, namely-. (4) Exhibited . . . upon any wall or other property of a railway company, except any portion of the surface of such wall or property fronting any public street." An advertising company erected within the City of Edinburgh a hoarding facing a public street and standing one foot within the boundary fence of property which belonged to a railway company. Held that the exemption in favour of railway property did not apply. Campbell v. Macpherson, P. 147.

Statutory Offence-Children Act 1908 (8 Edw. VII, cap. 67), sec. 120-Licensing Laus-Exclusion of Children from the Bar-Room or Box Partitioned off from Bar where Intoxicating Liquor was Supplied along with Food. The Children Act 1908, sec. 120, enacts-"(1) The holder of the licence of any licensed premises shall not allow a child to be at any time in the bar of the licensed premises except during the hours of closing. . . . (5) În this section the bar of licensed premises means any open drinking bar, or any part of the premises exclusively or mainly used for the sale and consumption of intoxicating liquor... A licence

holder was convicted of a contravention of the statute, in respect that he had permitted three young children to be in a room or box, in the licensed premises, situated at the end of the bar, but separated therefrom by a partition 7 feet high and closed by a door. There was evidence to the effect that the room or box in question was used as a luncheon

room

where intoxicating liquor was served along with food, but no evidence that it was mainly or exclusively used for the sale or consumption of intoxicating liquor. Held, on appeal, that the room or box was not a part of the bar of the premises, and conviction quashed. Donaghue v. M'Intyre, p. 310. Justiciary Cases - Sentence PronuoncedSubsequent Alteration-Increase of Fine Involving Longer Period of Imprisonment in Default-Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, cap. 65), sec. 48. A person was convicted on a summary complaint, and was fined £5 with the alternative of sixty days' imprisonment, The presiding magistrate then left the Court, but having had his attention directed to the fact that in terms of the Summary Jurisdiction (Scotland) Act 1908, section 48, the period of imprisonment awarded was in excess of that competent as an alternative to the amount of the fine imposed, he returned to the Court before the accused had been removed and intimated that he had made a mistake in the sentence, which he thereupon increased to £5, 5s: or sixty days' imprisonment. Held, in a suspension, that the alteration was incompetent, and conviction quashed. M'Rory v. Findlay, p. 314.

Probation of Offenders Act 1907 (7 Edw. VII, cap. 17), sec. 6, sub-sec. 5-Process-Bond of Probation-Jurisdiction— Judge Entitled to Convict and Sentence on Breach of Bond. Where under section 1 (2) of the Probation of Offenders Act 1907 an accused has been discharged conditionally on his entering into a recognisance to appear for conviction and sentence when called upon, in the event of a breach of the probation bond a magistrate other than the magistrate who originally tried the accused and put him on probation can competently convict and sentence for the original offence. M'Intyre v. Henderson, p. 588.

Statutory Offence-Food and Drugs Acts-Milk--Regulation - Ultra viresSale of Food and Drugs Act 1899 (62 and 63 Vict. cap. 51), sec. 4 (1)—Sale of Milk Regulations 1901, sec. 3. The Sale of Food and Drugs Act 1899, section 4(1), empowers the Board of Agriculture to make regulations for determining what deficiency in the normal constituents of "genuine milk, cream, butter, or cheese," or what addition of extraneous matter in any sample of "milk (including condensed milk), cream, butter, or cheese," shall raise a presumption of non-genuineness. The Board of Agriculture made a regulation dealing with "skimmed milk." Objection having been taken to the relevancy of a complaint on the ground that such regulation was ultra vires, the Board having no power to deal with "skimmed milk," held that the Board had such power under section 4 (1) of the Food and Drugs Act 1889, and that such regulation was intra vires. Gordon v. Love, p. 590.

Statutory Offence-Food and Drugs

Relevancy

Acts Milk Complaint Analyst's Certificate-Sufficiency-Sale of Food and Drugs Act 1875 (38 and 39 Vict. cap. 63), sec. 21-Sale of Food and Drugs Act 1899 (62 and 63 Vict. cap. 51), sec. 4 (1) -Sale of Milk Regulations 1901. A farmer, charged with selling skimmed milk which was not genuine, inasmuch as it did not contain nine per cent. of milk solids as required by section 3 of the Sale of Milk Regulations 1901, objected to the relevancy of the complaint on the ground that the analyst's certificate produced was unintelligible, that it did not state the "milk" solids, and did not show that any offence had been committed. The certificate stated

Held (1) that the certificate was quite clear; (2) that the omission of the word "milk" before "solids" was of no moment; (3) that the additional information as to "ash" did not affect the analysis, which showed a deficiency of solids. Gordon v. Love, p. 590. Justiciary Cases-Food and Drugs Acts

- Sale of Milk - Complaint - Relevancy -Specification-Omission to State Article Asked for-Sale of Food and Drugs Act 1899 (62 and 63 Vict. c. 51), sec. 4 (1)— Sale of Milk Regulations 1901, sec. 3. A farmer was charged with a breach of the Foods and Drugs Acts and the Sale of Milk Regulations 1901, in a complaint which stated that "in pursuance of a contract of sale" he had sent two butts of skimmed milk which was not genuine. Objection was taken that the complaint did not set out the article asked for, but only that supplied. Held that it was quite clear what was the subject of sale, and objection repelled. Hamilton v. Morrison, 20th March 1903, 5 F. (J.) 80, 40 S.L.R. 573, 4 Adam 216, distinguished per Lord Dundas. Gordon v. Love, p. 590.

Habitual Criminality-Proof-Prevention of Crime Act 1908 (8 Edw. VII, c. 59), sec. 10 (2). The Prevention of Crime Act 1908, sec. 10 (2), enacts-"A person shall not be found to be a habitual criminal unless the jury finds on evidence (a) that since attaining the age of sixteen years he has at least three times previously to the conviction of the crime charged... been convicted of a crime, and that he is leading persistently a dishonest or criminal life.. In order to warrant conviction of habitual criminality it is necessary for the Crown, in addition to proving that the accused has been three times previously convicted of crime, to prove in evidence that he was in fact leading a dishonest or criminal life at the time of his apprehension. Stirling v. H. M. Advocate, p. 756.

·Proof-Crime-Attempted Fraud on Underwriters-Claim for Payment not Proved-Preparation and Perpetration. Two persons were charged on indictment with an attempt to defraud certain under

writers who had insured an article which the accused now represented to have been stolen from them. At the trial the Crown failed to prove by competent evidence that a claim had actually been made by the accused against the underwriters for the value of the stolen article. Held (per the Lord Justice-General), notwithstanding the omission to prove the claim, that the jury were entitled to convict the accused provided they were satisfied on evidence that the actings of the accused had advanced to a stage beyond mere preparation for committing a fraud. H. M. Advocate v. Camerons, p. 804. Justiciary Cases Charge of Attempted Fraud against Two Persons “Acting in Concert"-Conviction of One Accused · Competency. Where in an indictment two persons were charged with attempted fraud, "acting in concert," held (per the Lord Justice-General) that it was compe. tent for the jury to return a verdict of guilty against one of the accused, while at the same time acquitting the other. Observations as to the evidence necessary to establish "concert between the accused. H. M. Advocate v. Camerons, p. 804.

-Review-Evidence-Motor Car Dan

gerous Driving Motor Car Passing Tramcar-Motor Car Act 1903 (3 Edw. VIÏ, cap. 36), sec. 1 (1). A motor car, driven at the speed of not less than nine miles an hour, passed, on the near side, a tramcar which was at a standstill taking up four passengers. The space between the tramcar and the kerb of the pavement was ten feet. At the moment when the motor car actually passed, three of the passengers had got on to the tramcar, the fourth had to come as near it as possible, his feet being below the footboard, and, even so, his coat was touched by the motor car, though no damage was done. The driver having been convicted of an offence against 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. Cromwell v. Renton, p. 823.

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. Cromwell v. Renton, p. 823.

Record-Procedure-New 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 Justice-Clerk) 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." White and Others v. Jeans, p. 825. Justiciary Cases-Review-Delay-Suspension of Summary Proceedings after Eight Months. Held that a complainer who, on the ground of irregularities, e.g., erasures appearing on the record, had brought a bill of suspension of certain summary proceedings after an interval of nine months, was barred on the ground of undue delay from insisting in the suspension. White and Others v. Jeans, p. 825.

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. White and Others v. Jeans, p. 825.

Complaint Relevancy Statutory Offence-Gas-works Clauses Act 1847 (10 Vict. cap. 15), sec. 18-Charge of Improper Use of Gas Supplied by Meter. The Gasworks Clauses Act 1847 enacts-" And with respect to waste or misuse of the gas... (sec. 18) Every person who shall lay or cause to be laid any pipe to communicate with any pipe belonging to the undertakers, without their consent, or shall fraudulently injure any such meter as aforesaid, or who, in case the gas supplied by the undertakers is not ascertained by meter, shall use any burner other than such as has been provided or approved of by the undertakers, or of larger dimensions than he has contracted

to pay for, or shall keep the lights burning for a longer time than he has contracted to pay for, or who shall otherwise improperly use or burn such gas... shall forfeit to the undertakers the sum of £5 for every such offence. . . ." A complaint charged a person with having improperly used and burned gas supplied to him by meter, contrary to the abovequoted section. Held that the complaint was irrelevant, in respect that the only gas dealt with in the section of the statute was gas supplied otherwise than by meter. Falkirk Corporation v. Russell, p. 838. Justiciary Cases--Procedure--Competency--Irregularities in Commitment--Omission of Crave for Warrant to Bring Accused up for Examination. A person charged with assault was arrested on a warrant obtained from the Sheriff on a petition for authority to apprehend and detain him for examination. The accused was brought before the Sheriff, and intimated that he did not desire to emit a declaration. Thereafter he was served with an indictment, which however was not proceeded with. Subsequently another application by minute was made for a warrant for apprehension and imprisonment of the accused on the same charge, but without craving warrant to detain him for examination. This was granted by the Sheriff, and the accused was again arrested, committed to prison, served with another indictment, and eventually tried and convicted. Held, in a suspension, that even if the commitment to prison of the accused was bad owing to irregularity in the proceedings relative thereto, yet the subsequent procedure on indictment was not thereby invalidated, and suspension refused. Question, whether the omission to crave detention for examination in the second petition, and the Sheriff's warrant following thereon, invalidated the commitment of the accused to prison. Opinions that it was inexpedient that the practice of making such an omission should be followed. M‘Vey v. H.M. Advocate, p. 905. Suspension-Burgh-Commissioners ·Bye-Law Ultra vires NuisanceBurgh Police (Scotland) Act 1892 (55 and 56 Vict: c. 55), sec. 316, sub. -sec. (a) for General Purposes (1). The Burgh Police (Scotland) Act 1892 enacts-Section 316

"The Commissioners may from time to time make bye-laws as they think fit for the purposes after mentioned, videlicet-(a) For General Purposes-(1) for preventing nuisances and annoyances in any street or any other place within the burgh. . . ." Section 317 enacts that bye-laws so made may be enforced by the imposition of penalties. By a bye-law made by the commissioners of a burgh it was enacted"(1) No person shall convey material of any description along the streets or courts in the burgh in carts or carriages so loaded that any part of the load fall on any street or court within the burgh." Held (1) that the bye-law was not invalid and ultra vires as being

unreasonable and too sweeping, and (2) that a complaint under it need not aver annoyance to anyone, the act charged constituting a nuisance in itself. Ronaldson v. Williamson, 983.

Justiciary Cases - Complaint. Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, c. 65), sec. 19 (2)—“ Leading Section" -Revenue Act 1869 (32 and 33 Vict. c. 14), secs. 22, and 19 (6). The Summary Jurisdiction (Scotland) Act 1908 enacts-Section 19 (2)". . . Where the offence is created by more than one section of one or more statutes or orders, it shall only be necessary to specify (in the complaint) the leading section or one of the leading sections." The Revenue Act 1869 enactsSection 22-"Every person . . . keeping any carriage shall fill up and sign a declaration in the prescribed form, wherein shall be stated the following particulars, viz. the number of carriages kept by him and the number of wheels of each carriage, and also whether any carriage having four or more wheels shall weigh less than four hundredweight. . Section 19 (6) --"The term carriage' means and includes any vehicle drawn by a horse or mule, or horses or mules. The owner of a motor car was convicted under a complaint for failure to make a declaration to the Inland Revenue as to the cylinder measurements of his motor car. The only statute libelled in the complaint was the Revenue Act 1869. Held on appeal that the complaint was irrelevant for want of specification. Macrorie v. Bird, p. 985.

...

Land and Heritage. See Valuation Cases. Landlord and Tenant - Lease of Farm

Counter Claim-Obligation on Landlord to Put Buildings, Fences, and Gates into Tenantable Repair-Claim of Tenant to Retain Rent against Failure to Implement-Relevancy. In a lease of a farm entered into in 1906 the landlord bound himself to put such of the buildings as were necessary for the farm as a grazing farm, and also the fences and gates, into a tenantable state of repair. In an action by the landlord against the tenant for the term's rent due at Whitsunday 1910 the defender pleaded that he was entitled to retain the rent sued for until fulfilment by the pursuer of the above obligation, and averred that the pursuer was in breach thereof in respect that buildings alleged to be necessary for a grazing farm, and fences, were and had been since the commencement of the lease in a state of dilapidation and disrepair in certain respects. Held that this defence was relevant, and proof allowed. of Galloway v. M'Connell, p. 751.

Earl

See Reparation-Sheriff. Lease - Outgoing — Compensation for Improvements-Contracting Out-Substitu tion of Conventional for Statutory Compensation-Time for Making Claim Illegal Condition-Agricultural Holding ings (Scotland) Act 1883 (46 and 47 Vict. cap. 62), sec. 36. The Agricultural Hold

ings (Scotland) Act 1883, sec. 36, provides

'Any contract or agreement made by a tenant by virtue of which he is deprived of his right to claim compensation under this Act in respect of any improvement specified in the schedule hereto (except an agreement providing such compensation as is by this Act permitted to be substituted for compensation under this Act) shall, so far as it deprives him of such right, be void." The lease of a farm prescribed compensation for improvements to be paid in lieu of the compensation provided by the Agricultural Holdings Act 1900, sec. 1, and relative schedule (which superseded sec. 1 and relative schedule of the Agricultural Holdings (Scotland) Act 1883). The lease also contained a proviso that no claim for compensation should be made by the tenant later than one month prior to the determination of the tenancy. The tenant having given notice in terms of the lease of his intention to terminate the tenancy, quitted the farm accordingly. He made claims for compensation prior to the determination of the tenancy (which but for the proviso would have been timeously made) but less than one month prior thereto. The landlord intimated to the tenant that the claims were excluded by the lease in respect that they were not timeous. Thereafter on the application of the tenant the Board of Agriculture and Fisheries appointed an arbiter for the purpose of dealing with the claims. A note of suspension and interdict having been presented by the landlord to prevent the arbitration being proceeded with, the Court-rev. the decision of the Lord Ordinary (Guthrie)-refused the interdict, holding that the stipulation contained in the lease as to the time of making the claim was void in respect that it was an agreement by the tenant by virtue of which he was deprived of his right to claim compensation. Cathcart v. Chalmers, p. 207.

Lease-Outgoing-Compensation for Improvements - Contracting Out - Conventional Scale - Void Condition - Stipulation for Early Notice of Claim-Agricul tural Holdings (Scotland) Act 1883 (46 and 47 Vict. cap. 62) and 1900 (63 and 64 Vict. cap. 50). "The statutes sanction a pactional substitution of compensation in terms of agreement for compensation in terms of the Acts; but not the adjection of a collateral stipulation which might (at least indirectly) operate to deprive the tenant of his right to obtain compensation at all." A stipulation, therefore, adjected to a conventional scale of compensation in an agricultural lease, that any claim for compensation must be made a month before the determination of the tenancy, whereas the statutes allow it up to the determination, is void. Cathcart v. Chalmers and Another, p 457.

Outgoing Compensation - Improvements-Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64), sec. 1,