such as a sudden storm, or a case which could not have been foreseen and provided for, but one of which the occurrence was certain and might easily have been provided for. We must assume that the Legislature had this in view, and notwithstanding decided that they would make no alteration in the close-time. The appellants have founded here very strongly on the case of Osborne v. Anderson. But the facts in that case were very special, and holding as I do that the words of the statute are too clear for construction, I think that this appeal should be dismissed. LORD M'LAREN-This case illustrates one of the advantages of the elastic construction of the Court of Justiciary, which enables us, in cases where there is an apparent conflict of opinion on the construction of a statute, to have the subject reconsidered by a larger number of Judges. I am not satisfied that in previous cases there was a real difference of opinion on the construction of the Salmon Fishing Acts, because the case of Osborne v. Anderson was an appeal against a sentence of absolvitor, and the Court were there considering whether they would interfere with the sentence of the Sheriff-Substitute, who held that the respondent had not intentionally infringed the Act of Parliament. In deciding this question the Judges constituting the majority of the Court were, I think, chiefly influenced by the consideration that the question of the proper commencement of the weekly close-time was a question calling for the intervention of the Commissioners, and the Sheriff - Substitute having held that there was no intention to evade the Act, that the Court ought not to interfere with his judgment of acquittal. I need hardly say that there is always a strong leaning against interfering with a judgment of acquittal. But the question is now raised as a pure question of construction, and it is argued that in place of the positive words contained in this section enacting a close-time, which is to begin at six o'clock, we are to substitute a time of closing, depending on the state of the tide. Now, it is perfectly obvious that the possibility of establishing a tidal close-time was a consideration which could not have escaped the attention of those who were responsible for the preparation of the Act, and that if the Legislature had intended anything of the kind it would have been so enacted. The establishment of a tidal close-time would not have been an easy matter, because separate tables would have been required for the different rivers and districts, and extending over the full period of ordinary variation of the tides, which is about eighteen years. Unless such tables were provided, every fisherman would choose his own time for putting his nets out of fishing order, with the result that there would not have been the substituted period of free run for the fish which was intended, and that it would have been very difficult to obtain a conviction. Therefore I do not doubt that what the Legislature intended was to establish a definite number of hours when the nets were to be open and out of fishing order. It follows that in certain states of the tides four,tides will be lost to the fishermen instead of three, but this cannot be helped. It is the necessary result of the condition of net-fishing, and of the provisions of the statute. LORD TRAYNER-The conviction in this case is of a contravention of the Salmon Fisheries (Scotland) Act 1868, section 24, and sections 1 and 2 of byelaw Schedule D annexed to the Act, the charge against the appellants being, to put it shortly, that they had failed to observe the weekly closetime. Now, the weekly close-time is fixed by the Salmon Fisheries (Scotland) Act 1862 in these terms-"The weekly closetime, except for rod and line, shall continue from the hour of six of the clock on Saturday night to the hour of six of the clock on Monday morning"-and it would not have occurred to me that the Legislature when fixing a close-time could have fixed it in language more absolute or unambiguous than the language of that section. It is said, however, that that language is open to construction, and that in effect it meant, or may mean, not six o'clock on Saturday night to six o'clock on Monday morning, but any thirty-six hours convenient to the tides between Saturday afternoon and Monday forenoon. I cannot put that construction upon the section; the words mean precisely what they say. They do not say that the close-time is to extend for thirty-six hours, but for certain specific hours, and if these hours are not observed, then a breach of the statute is committed. The words are precise and unambiguous, and I must hold that the Legislature in using them knew and had in view that in certain districts the tides would vary, but nevertheless provided that the weekly closetime was to be everywhere the same. I am the more persuaded that this view is sound by the fact that there is a provision in the statute enabling a person who thinks he is injured by the existing close-time to go to the district commissioners and have the hours changed. As long, however, as it stands, the words of the section are clear and must be obeyed. With regard to the case of Osborne v. Anderson, I am not sure that the Judges who decided that case were of opinion that the section of the Act of 1862 was open to construction as now contended for by the appellants. I think the Judges there were moved by the special circumstances (1) that there had been a long period of local practice which the respondents in that case had been following, and (2) that they were dealing with a verdict of acquittal, which they thought in the circumstances they were not called upon to disturb. But if that case is to be held as settling (and we were told by the appellant that it had been so regarded) that the section of the Act of 1862 is open to the construction and bears the meaning now contended for by the appellant, I cannot agree with it. I concur in the opinion of Lord Rutherfurd Clark in that case. LORD WELLWOOD, LORD STORMONTH DARLING, and LORD LOW concurred. LORD JUSTICE-CLERK As your Lordships are agreed upon your judgment, I have no vote, but I may be allowed to express my view, which is in accordance with the opinions expressed by your Lordships. It seems to me that the clause of the statute means that all fishing within the hours of the weekly close-time shall be illegal. No words could be more distinct and definite than those used in the statute. Any construction of the Act which would permit a fisherman to stop his fishing when he thought it a suitable time to put his nets out of fishing order would lead to confusion, and to there practically being no close-time at all, or at least a much shorter close-time than the thirty-six hours required by the Act. For a close-time means a free passage throughout for the fish. But if the thirty-six hours are to be such hours as the fishermen may hold to be the most suitable, then one fisherman may put his nets out of fishing order before six on Saturday, and make that an excuse for commencing fishing before six on Monday morning. Another may count his close-time from a later hour than six p.m. on Saturday. Thus there would be no fixed range of thirty-six hours of slap, and the intention of the statute would be defeated. I think the Act is quite clearly expressed, and is so unambiguous in its terms that it is not open to construction, and it is, I think, plain that any construction which would sanction nets being in fishing order at any time between the hours prescribed in the statute, would in a greater or less degree defeat its plain purpose, which is that the water shall be absolutely free to the fish for thirty-six continuous hours. The Court sustained the judgment of the Sheriff-Substitute and dismissed the appeal, but found no expenses due by the appellants in respect that they had committed the contravention in the belief that the judgment in Osborne v. Anderson entitled them so to act. Counsel for the Appellants-DicksonMacfarlane. Agents Hope, Mann, & Kirk, W.S. Counsel for the Respondent - Asher Dundas. Agent N. Briggs Constable, W.S. Tuesday, December 15. [Sheriff Court at Portree. (Before the Lord Justice-Clerk, Lord ROSS v. MACLEOD. Justiciary Cases-Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. cap. 62), secs. 3 and 4-Refusal of Magistrate to State a Case. A charge brought by a private prosecutor having been found not proven and dismissed, the Sheriff-Substitute refused to state a case under the Summary Prosecutions Appeals Act 1875, and granted a certificate of refusal accordingly. A note having been presented under the Act for an order on the inferior Judge and the other party to shew cause why a case should not be stated, counsel for the inferior Judge stated, upon the authority of the inferior Judge, that upon the facts found proved by him no question of law could arise. The Court refused the note. The Summary Prosecutions Appeals (Scotland) Act 1875 provides, sec. 3-" On an inferior judge hearing and determining any cause, either party to the cause may, if dissatisfied with the judge's determination as erroneous in point of law, appeal thereagainst by himself or his agent applying in writing within three days after such determination to the inferior judge to state and sign a case setting forth the facts and grounds of such determination, for the opinion thereon of a superior court of law as hereinafter provided." Sec. 4-"It shall be lawful for an inferior judge to refuse any application made to him under this Act to state and sign a case should he consider such application to be frivolous; provided that he shall forthwith give to the applicant a certificate of such refusal should the same be asked for." Robert Ross, gamekeeper, Portree, brought a prosecution against Neil MacLeod, crofter, Inverness-shire, under the Summary Jurisdiction (Scotland) Acts 1864 and 1881, charging him with a contravention of the third section of the Act 13 George III. chap. 51. The particular contravention alleged was that upon 8th October 1891 the respondent had in his possession upon the quay at Portree a quantity of game without the leave or licence of a person qualified to kill game in Scotland, he being himself unqualified to kill game or to have such in his possession or custody. The case was tried at Portree upon 5th November, when the Sheriff-Substitute (FRASER) found the charge was not proven, and found MacLeod entitled to three guineas expenses. The prosecutor applied to the SheriffSubstitute to state a case under the third section of the Summary Prosecutions Appeals (Scotland) Act 1875, but he declined to do so, and gave a certificate of refusal in terms of the first section of the Act. v. MacLeod 15 The complainer presented a note to the High Court of Justiciary to have the Sheriff-Substitute ordained to state a case. The note was served upon him and upon the respondent in the Sheriff Court, Neil MacLeod. The complainer argued─A relevant case had been stated to the Sheriff, and in these circumstances the Sheriff-Substitute was bound to state a case when asked. It was not necessary for a conviction under the Act libelled for the accused to have actual possession of the game, and the SheriffSubstitute had proceeded on the ground that the game was not in the respondent's hands, although it was clear that it was in his custody-Wood v. Collins, June 2, 1890, 2 Wh. 497; Mackenzie v. Lockhart, October 27, 1890, 2 Wh. 534; Young v. Jameson, January 26, 1890, 2 Wh. 581. Counsel for the respondents stated that the Sheriff-Substitute had authorised him to say that upon the facts which were found proved in the Sheriff Court no question of law could arise. At advising LORD TRAYNER-Under the statute the inferior judge has a discretion as to whether he will grant a case or not, and this Court will not be forward to interfere with his discretion unless it clearly appears that a question of law arises in the case. But the Sheriff-Substitute's counsel says that in the facts he held proved no question of law could arise. In these circumstances I am of opinion that we should not interfere. The LORD JUSTICE - CLERK and LORD RUTHERFURD CLARK concurred. The Court dismissed the note. Counsel for Complainer-Glegg. Agent -A. B. C. Wood, W.S. Counsel for Respondents MacLaren. Agents-Duncan Smith & M'Laren, W.S. Tuesday, December 15. (Before the Lord Justice-Clerk, Lord Adam, and Lord Kincairney.) BRYCE v. SHAW. Justiciary Cases-Summary ProsecutionOppression-Right of Accused to Adjournment - Summary Procedure (Scotland) Act 1864 (27 and 28 Vict. c. 53), sec. 11. There is no legal duty upon a magistrate in summary prosecutions to inform the accused of his right to an adjournment of the trial, and the fact that he has not done so is not therefore of itself a sufficient ground for setting aside a conviction. This was an appeal by William Bryce, machineman, Glasgow, under the Glasgow Police Act 1866, sections 131 and 132, to the Circuit Court of Justiciary at Glasgow, and certified by Lord Adam, the presiding Judge, for the judgment of the High Court of Justiciary. The appeal was against a conviction and sentence of fourteen days' imprisonment pronounced by the Police Magistrate of Glasgow upon a complaint at the instance of William Shaw, ProcuratorFiscal of Court, charging him and William Semple with having, contrary to the Glasgow Police Act 1866, particularly section 135 (article 5) thereof, on the 10th day of June 1891, in Wilson Street, Glasgow, been riotous and disorderly in behaviour by quarrelling and fighting with each other, whereby the lieges were annoyed and disturbed. The material facts set forth in the appeal were as follow-The appellant and Semple were arrested shortly after midnight of the 9th June, and lodged in the cells. About eleven o'clock of the 10th June, that is to say, about ten hours after their apprehension, the appellant and Semple were taken from the cells of the Police Office and were brought before John Gemmell, Esq., Stipendiary Police Magistrate of Glasgow, sitting in the Central District Police Court, on the charge above set forth. The charge referred to what took place at the time of the apprehension. The charge or complaint was read over to the appellant, but he was not supplied with a copy, and was immediately asked to plead thereupon without any adjournment being made, which he was anxious to obtain in order to enable him to communicate with his friends and law agent, and so prepare for his defence. The appellant pleaded not guilty to the charge. The respondent immediately proceeded with the trial of the case, and adduced as evidence for the prosecution the two police officers who had apprehended the appellant, who were the sole witnesses examined. The Police Magistrate, on the evidence thus adduced, found the said charge proven, and convicted the appellant of the offence libelled, and pronounced the sentence above set forth without opportunity being afforded to him and the said William Semple of being dealt with under the Probation of First Offenders Act 1887, to the benefit of the provisions of which Act they were justly entitled, in view of the whole circumstances, in the event of the charge being rightly proved against them. The complainer had no opportunity afforded him of citing witnesses in his favour, whose evidence would have resulted in his acquittal. The complainer was not prior to the trial informed that he was entitled to have the hearing adjourned for forty-eight hours. That complainer never having been in a court before, was not aware that he was entitled to such adjournment, although it was the duty of said Magistrate to so inform him, and the complainer was extremely anxious to see his friends and get their assistance in defending him. The appellant further set forth that he was innocent of the charge, and that the police officers who had arrested him and given evidence against him were actuated by malice. The reasons for appeal set forth were"1. That the complainer was in all the circumstances above narrated oppressively dealt with, in being apprehended, charged, 2. and sentenced for the trifling offence alleged, all within a few hours of one and the same day, and that without having the opportunity of advising with his relations and a law agent, or citing witnesses, and otherwise preparing for his defence. The trial of complainer was proceeded with with undue haste. 3. The Magistrate failed in his duty to inform the complainer of his right to an adjournment. 4. In any case the sentence of fourteen days' imprisonment, without option of a fine, was oppressive, and contrary to natural justice for a first offence of the trivial nature alleged, and the complainer was in any event also entitled to be dealt with under the provisions of the Probation of First Offenders Act 1887, for which his relations or law agent could have instructed circumstances had he had the opportunity of consulting them." The complainer cited Pyper v. Walker, 1885, 5 Coup. 631; Gardiner v. Jones, 1890, 2 White 451; Goodall v. H. M. Advocate, 1888, 2 White 1. The respondents cited Byrnes v. Dick, 1853, 1 Irv. 145; Mackay v. Patrick, 1882, 5 Coup. 132; Mackenzie v. M'Phie, 1889, 2 White 188; Gallagher v. Auld, 1886, 1 White 130. At advising LORD JUSTICE-CLERK-The complainer who raises this appeal is a lad nineteen years old, and he appeals against this conviction on the ground that he was oppressively treated, as the appeal states, "in being apprehended, charged, and sentenced for the trifling offence alleged, all within a few hours of one and the same day, and that without having the opportunity of advising with his relations and a law-agent, or citing witnesses and otherwise preparing for his defence." The second ground is of the same nature-"The trial of complainer was proceeded with undue haste.' Now, as regards the offence, it is not one of a serious nature, but it is one in which the statute allows a sentence of imprisonment to be given without the option of a fine, and even a sentence of some duration. It seems at first sight a severe sentence, especially in the case of a person who has not been in the hands of the police before, but I feel bound to say that the question whether the sentence in any case is a proper one or not is a question within the discretion of the magistrate. The Court cannot hold that the sentence in any case is an improper one merely upon the statement of the character of the offence in the complaint. I can imagine cases in which it might be proper for us to take into consideration the severity of the sentence, but as a rule it appears to me that these are cases rather for the exercise of the prerogative of the Crown than for the court of review, because we have only to judge whether the sentence pronounced was a competent sentence. I think it would require a very exceptional case to justify our interfering on the ground that the sentence was too severe. Again, it is said that the trial was con ducted with undue haste. Certainly there was a very short time between the prisoner's apprehension and his trial. But this case was tried in a Court of summary jurisdiction, and in a summary manner, and there was nothing unusual in the case being brought up for trial a few hours after the occurrence which led to it. The only ground, then, upon which the complainer could succeed falls under the third head of the complainer's statements. In that he says he had no opportunity of advising with his law-agent or relations. But I am afraid that that is what takes place in almost all cases where persons are tried summarily and there is no adjournment. I am dealing with the case on the ground that the complainer is a person able to take care of himself, and not a child. There is no doubt that under the statute the accused person, if he pleads not guilty, is entitled to ask for and obtain an adjournment to enable him to prepare his defence, but the question is, whether it is the duty of the magistrate to inform the accused in every case of his right to ask for an adjournment. I am not prepared to say that where the accused person is an adult there is any duty upon the magistrate to inform him of his statutory right. might be a very proper thing to do especially in the case of a first offence, but I'do not think the absence of such warning is a sufficient ground for us to set aside the conviction. In my opinion the appeal ought to be dismissed. It LORD ADAM-This case came before me at Glasgow Circuit. I thought then that the appeal was not well founded, but at the request of the appellant, and because I considered it a case of importance, I certified it to the High Court. The appellant was convicted under the Glasgow Police Act 1866, particularly sec. 135, which provides for punishment of persons who had been "riotous and disorderly in their behaviour by quarrelling and fighting with each other whereby the lieges were annoyed and disturbed.' He was sentenced to fourteen days' imprisonment without the option of a fine. There is no question here of the competency of the Magistrate to inflict the punishment. This appeal is brought under the 131st and 132nd sections of that Act, upon the ground, and, as was admitted, the only competent ground, of legal oppression, and the question we have to consider is, whether the circumstances show that there was oppression? Now, the facts to be gathered from the complaint seem to be these-This appellant and another lad were apprehended in the streets of Glasgow after midnight. They were lodged in the police cells for the night, and the next day about 11 o'clock they were brought before the Magistrate. The complaint was read over to them, and they were asked to plead in the usual way. They pleaded not guilty, evidence was led, the Magistrate convicted them, and sentenced them to fourteen days' imprisonment. Now, so far as I can see, everything v. Shaw 15, was done in the regular manner, but it is said there was oppression because they were not informed that they could have demanded an adjournment for forty-eight hours. A question was raised whether the 11th section of the Summary Procedure Act 1861 applies to such a case as the complainer's. It is not material to decide that question, because even if it does, that Act imposes no duty upon the magistrate to inform any prisoner of his right to have an adjournment. The Act imposes no duty upon the magistrate, but it puts it in the power of the prisoner to require the magistrate to adjourn, and it is his duty to do so if required, but the duty is upon the accused, not upon the magistrate. If there is no legal obligation upon the magistrate to inform the prisoner of his power to ask for an adjournment, the fact that he did not do so cannot be held a reason for setting a conviction aside. Although, however, there may be no legal obligation on the magistrate to inform the accused of his rights, it may be right and proper in the circumstances of a particular case that he should do so. The character and gravity of the offence, the age of the accused, the nature of the defence, and other circumstances, are what a magistrate might very well consider in exercising his discretion in the matter, and his not having done so may be a very material circumstance in considering whether a conviction should be set aside or not. But I agree with your Lordship in the chair that there is nothing in this case to suggest to the Magistrate that as a matter of justice it was necessary to inform the accused of their right to an adjournment. The offence charged was trivial, and the accused was of an age at which he was quite capable of looking after himself. The only other question raised by this complaint is on account of certain averments that the witnesses upon whose evidence the appellant was convicted were actuated by malice towards him and his companion. If that statement had been made to the Magistrate at the trial I have no doubt it would have had weight with him in the question of adjournment, but it is not even said that such a statement was made to the Magistrate at the time. think it is altogether impossible to set aside a conviction obtained after a regularly conducted trial, because the accused now come forward and say that if the Magistrate had adjourned for forty-eight hours they could have shown that the witnesses were actuated by malice. I LORD KINCAIRNEY-I concur. I do not think that the 11th section of the Summary Prosecutions Appeal Act imposes on the Magistrate any absolute obligation to inform an accused person that he has a right to ask for an adjournment, and therefore I cannot say that the Magistrate has in this case violated any statutory duty. I do not, however, say that cases may not arise in which a conviction would be set aside be cause the magistrate had not given an adjournment or has not informed the accused of his right. In this case, where it is said that the accused had never been tried at a police court before, I certainly think that it would have been better if his right to demand an adjournment had been explained to him. The Court dismissed the appeal. Counsel for the Appellant - AitkenWilton. Agents-Scott & Logan, W.S. Counsel for the Respondent-Lees-A. S. D. Thomson. Agents-Campbell & Smith, S.S.C. Tuesday, December 15. [Sheriff Court of Orkney. (Before the Lord Justice-Clerk, Lord Justiciary Cases-Summary Prosecution The respondent in a prosecution before a Court of Summary Jurisdiction is not bound to give notice of a special defence. A complaint under the Summary Jurisdiction (Scotland) Acts 1864 and 1881, and the Criminal Procedure (Scotland) Act 1887, was made in the Sheriff Court at Kirkwall, by Martin Langston Howman, ProcuratorFiscal of Court for the county of Orkney, charging Alexander Ross, master of the steam trawler "North Coast" with having used the mode of fishing known as beam trawling within three miles of low watermark in the sound known as the "North Sound," to the north of the island of Eday, contrary to the Herring Fishery (Scotland) Act 1889, section 6, as amended by the Herring Fishery (Scotland) Act Amendment Act 1890. The respondent appeared on 3rd November 1891 and pleaded not guilty, and after a trial the Sheriff-Substitute found the contravention not proven. Howman took a case. The case stated, inter alia-"(1) When the appellant had closed his case for the prosecution, the respondent, on calling his first witness, stated that whereas the witnesses for the prosecution had deponed to the alleged contravention having taken place at or about 5 p.m. on Thursday, 1st October 1891, he was prepared to prove that the steam trawler North Coast,' at 6 a.m. on that day, left the North Sound in order to trawl off Wick, and had not been back in the North Sound since. The appellant objected that this was an alibi, and that he was entitled to written notice of this as a special defence, which notice should have been lodged the day before the trial, and that no notice having been given, such evidence could not be admitted. He alleged that if admitted he was prejudiced thereby, for he could have produced other evidence bearing on the question of time if notice had been given |