him. The respondent argued that the complaint libelled the 1st day of October 1891, in the sound known as the 'North Sound,' as the time and locus of the contravention charged, and until he ascertained from the evidence for the prosecution the hour at which the contravention was alleged to have been committed, he was not aware that he would be able to prove an alibi, and therefore could not have given previous notice of his intention. He also argued that in a summary complaint under the Summary Jurisdiction (Scotland) Acts 1864 and 1881 it was not necessary to give notice of a special defence, and that section 36 of the Criminal Procedure (Scotland) Act 1887 did not apply to summary complaints. In the circumstances I repelled the objection stated by the appellant, and held that the respondent was entitled to lead evidence to the effect stated."

The questions of law for the opinion of the Court were-"(1) Does written notice, or any notice of an alibi, require to be given to a prosecutor prosecuting under the Summary Jurisdiction (Scotland) Acts 1864 and 1881, and the Criminal Procedure (Scotland) Act 1887? (2) In the circumstances stated, was the evidence for the respondent competently admitted without written notice of the defence he was to state having been lodged with the Procurator-Fiscal?"

The appellant argued-(1) Notice ought to be given if the defence of an alibi was to be brought forward. It was so in prosecutions in the Supreme Court and in jury trials in the Sheriff Court. (2) Even if notice was not required to be given before the trial began, it should as a matter of fairness be given before the prosecutor closed his case, so that he might bring forward evidence as regarded it, and the Court was entitled to lay down as a matter of fairness to the public prosecution that such a course should be followed-Hume, ii. 399.

The respondent argued-The rule requiring notice to be given of a special defence depended as regarded the High Court upon statute, as regarded jury trials in the Sheriff Court upon the Act of Adjournals. There was neither statute nor Act of Adjournal extending it to court of summary jurisdiction. This provision was extended to jury trials in civil court by an Act of Adjournal, but there was no provision extending the necessity for notice to trials under the Summary Procedure Acts.

At advising

LORD JUSTICE-CLERK-There is a general licence in the statement of time in criminal charges, so that a prosecutor is not bound up too tightly to prove that a crime was committed upon a particular date unless there is a reason for so tying him up. In the ordinary case the prosecutor neither needs to aver nor to prove that an offence took place at any particular hour of the day, and further may, although he names a particular day, demand a conviction al

though the evidence proves the day to have been a different day near that named. But if the exact time becomes of importance in consequence of the nature of the defence, he may be required in his evidence to be more exact. But he must receive notice of such defence. The prosecutor, in all cases where the trial is before a jury, is entitled to receive notice some days beforehand if any special defence, such as an alibi, is to be set up-that is to say, if the defence is to be that the accused person was not at the place libelled when the crime was committed, but was somewhere else at that time, so that beyond doubt he could not have committed the crime, the prosecutor is entitled to be informed of it. He is then put upon his inquiry, and if he determines to go on with his case, he is bound to keep very strictly to the time which he has specified, and even to be exact as to the hour. But then that law as regards notice of the special defence, so far as relates to the Supreme Court, is based upon law applicable to that Court only, and when the provision was extended beyond the Supreme Court it was done by an Act of Adjournal.

In this case, however, we are dealing with a summary prosecution. In all the other cases where notice of the special defence is required to be given the prisoner is safeguarded in this way-that he must receive notice of the witnesses and the productions which are to be brought against him, and thus many days before the trial he can by his inquiries ascertain what is the time at which the offence is said to have been committed, and he gives notice that if it is proved to have been done at that time he will prove he was in another place.

But in cases tried under summary jurisdiction no such privileges are given to the accused; the prisoner is brought up for trial within forty-eight hours of his arrest, and he is not furnished with a list of the witnesses and productions to be used against him; yet it is said that he is still to be held bound to give notice of his special defence of alibi.

We were told that it was not the practice to require such notice in summary trials, and I do not think we can introduce such a practice. It has the sanction neither of custom nor of the authority of our institutional writers. If we had to introduce such a practice by a solemn Act of Adjournal, in my opinion we would have to make rules about a great many other things than merely giving notice of a special defence. We would have to make regulations for the prosecutor giving lists of the names of witnesses and of the productions to be used against him to the prisoner.

This is, however, a case of a summary trial, and I am afraid that summary trials must be carried on in more rough and ready way than trials before the Court of Justiciary, or in the Sheriff Court before a jury, so that the forms applicable to one procedure would not be suitable for the other. In my opinion the Sheriff-Substitute was right in holding that the defender was entitled to prove his ship could not have been guilty of trawling at the time

v. Ross

1891

libelled because she had left the bay some hours before the time proved by the prosecutor as being the time of the offence.

LORD RUTHERFURD CLARK-I think we have here to determine a general question whether a person tried before a Court of summary jurisdiction is required to give notice to the prosecutor of a special defence. I put aside altogether the circumstances of this case.

It is certain that the rule which obtains in the Court of Justiciary that notice of a special defence must be given depends upon statute alone. It is equally certain that the same rule which obtains in cases tried in a Sheriff Court before a jury obtains there by authority of an Act of Adjournal. There is no other law requiring notice of a special defence to be given. It seems obvious, then, that a person tried before a court of summary jurisdiction is not bound to give notice to the prosecutor of any special defence, because there is neither statute law nor common law compelling him to do so. It is impossible for us to apply the rules which obtain in the Supreme Court to courts of summary jurisdiction.

LORD TRAYNER-I agree. I think we must answer the first question in the negative, on the ground, as stated by Lord Rutherfurd Clark, that there is neither statute law nor common law requiring the accused person to give such notice as is asked.

The Court dismissed the appeal.

Counsel for Appellant-Lord-Advocate Pearson, Q.C.-Wallace. Agent - James Auldjo Jamieson, W.S., Crown Agent. Counsel for Respondent-Watt. Agent -Andrew Urquhart, S.S.C.

Friday, December 18.

(Before the Lord Justice-Clerk, Lord Young, and Lord Trayner.) BROWN v. RENTON. Justiciary Cases-Cockfighting-13 and 14 Vict. cap. 92, sec. 2-Relevancy.

Held, in accordance with decisions in England under the corresponding English statute, which is in the same terms, that a charge under the Act 13 and 14 Vict. c. 92, sec. 2, of aiding and assisting at cockfighting is irrelevant which does not set forth that the cockfighting took place in a place kept for that purpose. This was a bill of suspension for James Brown, miner, residing in Kinglassie, against Robert Wemyss Renton, Procurator-fiscal of Court, Cupar, craving suspension of a sentence pronounced by the Sheriff-Substitute of Fife and Kinross under a complaint at the respondent's instance charging that the complainer, "and the other persons therein named and designed, did, on 11th July 1891, in the

plantation known as 'Rimbleton Plantation, forming part of 'Leslie House' policies, and also on the Old Service Road between Kirkcaldy and Kinglassie highways, and at a part thereof near said plantation, encourage, aid, and assist at the fighting or baiting of 6 or thereby cocks, and did cause said cocks to fight with each other in pairs, whereby two of said cocks were killed and four severely injured, contrary to the Act 13 and 14 Vict. c. 92, sec. 2."

The bill set forth, inter alia-"(Stat. 4) The complaint under which the complainer was tried and convicted is irrelevant and defective in specification. It is laid exclusively on the 2nd section of the Act 13 and 14 Vict. cap. 92, which enacts-That every person who shall keep or use or act in the management of any place for the purpose of fighting or baiting any bull, bear, badger, dog, cock, or other kind of animal, whether of domestic or wild nature, or shall permit or suffer any place to be so used, shall be guilty of an offence, and every such offender shall be liable to a penalty not exceeding £5 for every day he shall so keep or use or act in the management of any such place, or permit or suffer any place to be used as aforesaid: Provided always that every person who shall receive money for the admission of any other person to any place kept or used for any of the purposes aforesaid shall be deemed to be the keeper thereof; and every person who shall in any manner encourage, aid, or assist at the fighting or baiting of any bull, bear, badger, dog, cock, or other animal as aforesaid, shall be guilty of an offence, and shall be liable for every such offence to a penalty not exceeding £5.' The said section applies only to cases where a place is kept and used specially for the purpose of fighting or baiting any of the animals therein mentioned, and specifies two classes of offences-(1) The keeping, using, or acting in the management of such a place, or the permitting or suffering it to be so usedwhereof receipt of money for admission of others is the statutory test; and (2) the encouraging, aiding, or assisting at the fighting or baiting of animals at such a place. The first mentioned is the principal, the second the accessory offence. (Stat. 5) The said complaint does not charge any of the accused, or any other person, with keeping, using, or acting in the management of a place for the purpose of fighting or baiting cocks, or permitting or suffering any place to be so used. The complaint libels two loci, one a plantation forming part of Leslie House policies, and the other the Old Service Road between Kirkcaldy and Kinglassie highways, the description of which excludes the idea of either of them being kept or used in the statutory sense. The attempt of the respondent is to raise an accessory into a principal offence by omitting to specify the statutory offence to which it is accessory." And a plea was stated against the relevancy of the complaint founded on these statements.

The complainer argued--The offence of encouraging, aiding, or assisting at a cock

, 1891

fight could only be committed in a place kept for the purpose. The words "as aforesaid" imputed that qualification. The English enactment on the subject (12 and 13 Vict. c. 92, secs. 2 and 3) which was in precisely similar terms, had been so construed in the English and Irish CourtsClark v. Hay, 1859, 2 E. & E. 281; Morley v. Greenhalgh, 1863, 3 B. & S. 374; Budge v. Pearson, 1863, 3 B. & S. 379 ; Coyne v. Brady, 1862, 12 İr., C.L. Rep. (N.S.) 577.

LORD YOUNG--This case presents to us exactly the same question which was presented to the Court of Queen's Bench in the case of Clark against Hay. The statutes under consideration in that case and in this are of the same Parliament, passed for the same purpose, and the same language is employed in both. I am of opinion that we ought to decide the question in the same way as the English Judges have decided it, not in that case only but in two other cases in 1863, and as it also has been decided in Ireland. It would not be seemly to put a different construction upon the same language of the same Parliament, used for the same purpose, from that put upon it in England. The argument hinc inde for one construction or the other is intelligible enough, but it is fitting, in my opinion, that we should hold to that construction which has been established in England. I am of opinion therefore that this conviction ought to be set aside.

The LORD JUSTICE-CLERK and LORD TRAYNER Concurred.

The Court suspended the conviction and sentence.

Counsel for the Complainer-M‘Lennan. Agent-James Skinner, S.S.C.

Counsel for the Respondent-Wallace. Agent-Crown Agent.

Friday, December 18.

(Before the Lord Justice-Clerk, Lord
Young, and Lord Trayner.)

THE DISTRICT COMMITTEE FOR
KELSO DISTRICT OF COUNTY OF
ROXBURGH v. FAIRBAIRN AND
FERGUSON.

Justiciary Cases-Title to Prosecute-Title of District Committee as Local Authority under the Public Health Act 1867-The Public Health (Scotland) Act 1867 (30 and 31 Vict. c. 101), sec. 48.

A complaint brought by a district committee of a county council as local

District Committee, Dec.

authority under the Public Health Act, charged certain persons with placing an infected person in a hackney carriage and in a railway carriage without notification to the owners. The loci at which the infected person was placed in the hackney carriage and railway carriage respectively were outwith the district. The complaint stated that she was conveyed in the railway carriage to S, but did not say that S was within the district, although it was stated at the bar to be so. Held that the offence charged consisted in the act of placing the infected person in the carriage, and was not an offence continuing so long as the person remained in the carriage, that it was alleged to be committed outwith the district, and that there was therefore no title to prosecute. Relevancy-The Public Health (Scotland) Act 1867 (30 and 31 Vict. c. 101), sec. 49.

A complaint charging certain persons with a contravention of section 49 of the Public Health (Scotland) Act 1867, "in so far as they did, both and each or one or other of them, time and place libelled, wilfully expose A B while suffering from an infectious disorder without proper precautions against spreading said disorder." Held irrelevant for want of specification. Sheriff Jurisdiction Process Union of Several Counties into One Sheriffdom. Held, following Tait v. Johnston, February 28, 1891, 18 R. 606, that in a sheriffdom in which several counties are combined, the Sheriff sitting in one county of the combined sheriffdom has jurisdiction to try an offence committed in another county of the same sheriffdom.

This was an appeal upon case stated at the instance of the District Committee for the Kelso District of the County of Roxburgh, as the local authority within said district, against a judgment of the Sheriff-Substitute of Roxburgh, Berwick, and Selkirk, pronounced at Duns, dismissing a complaint at their instance against Henry Fairbairn, lately innkeeper at Auchencrow, in the parish of Coldingham, and now residing at Polwarth Mill, in the parish of Polwarth and county of Berwick, and John Ferguson, lately farm servant at Whitmuirhaugh, in the parish of Sprouston, but now at Faldonside near Melrose, in the county of Selkirk.

а

The case set forth that the complaint charged the respondents with contravention of the Public Health (Scotland) Act 1867, section 48, in SO far as on or about the 10th day of May 1891 the said Henry Fairbairn and John Ferguson did, both and each or one or other of them, place Ann Drummond, formerly residing at Auchencrow, but now at Courthill, Nenthorn, while suffering from an infectious disorder, in a hackney carriage, in which the said Ann Drummond was conveyed from Auchencrow to Berwick-on-Tweed; in a railway carriage, in which the said Ann Drummond

District Committee

18,

was conveyed from Berwick-on-Tweed Railway Station to Sprouston Railway Station; and in a cart, in which the said Ann Drummond was conveyed from Sprouston Railway Station to Whitmuirhaugh, without previously notifying to the owners or persons in charge of said hackney carriage, railway carriage, and cart that the said Ann Drummond was so suffering; and further, that the said Henry Fairbairn and John Ferguson did, time and place above libelled, contravene the 49th section of said Public Health (Scotland) Act 1867, in so far as they did, both and each or one or other of them, wilfully expose the said Ann Drummond while suffering from said infectious disorder without proper precaution against spreading said disorder. At the diet of compearance at Duns, upon the 13th day of November 1891, in the presence of George Smythe Dundas, Esq., advocate, Sheriff-Substitute of Berwickshire, the respondents, the said Henry Fairbairn and John Ferguson, appeared, and the complaint was read over to them, whereupon Mr Joseph Wilson, writer, Duns, who appeared as their agent, stated the following preliminary objections:-(1) That the complainers and appellants had no title to sue, in respect that the locus of the offences libelled in the complaint as having been committed within the county of Berwick in contravention of the 48th and 49th sections of the said Act is beyond the jurisdiction of the complainers and appellants as the local authority foresaid; and (2) that the locus of the offences libelled in the complaint as having been committed outwith the said county of Berwick in contravention of the said sections is beyond the jurisdiction of the Sheriff Court at Duns. The Sheriff-Substitute, after hearing parties' procurators on said objections, sustained the same and dismissed the complaint."

The question of law for the opinion of Court of Justiciary was-" Whether, under the circumstances above set forth, the complainers and appellants have a title to sue; and assuming that they have a title to sue in regard to all or any of the contraventions alleged, whether they can prosecute the said complaint before the Sheriff Court at Duns?"

Argued for the appellant-(1) The jurisdiction of the Sheriff was clear-Tait v. Johnston, February 18, 1891, 18 R. 606. (2) The appellants had a good title to prosecute. The parish of Sprouston was within the appellants' district. No doubt Auchencrow and Berwick-on-Tweed were not, but the case was a continuing one, and the appellants' title accrued to them when the train from Berwick-on-Tweed to Sprouston crossed the border of the district. As regarded the second charge, the railway station at Sprouston and the public road outside on which the infected person was exposed in a cart were public places.

Argued for the respondents-The appellants had no title to prosecute. The complaint did not bear that the loci were within the district. It was admitted that Auchen

crow and Berwick-on-Tweed were not. There was therefore on the first charge no offence within the district, as the offence consisted in placing an infected person in a public conveyance. That is only alleged to have happened at Auchencrow and Berwick-on-Tweed, a cart not being a public conveyance. As regarded the second charge, the complaint did not bear that the offence was committed within the district, and it was further irrelevant from a want of specification.

At advising

LORD JUSTICE-CLERK-In this case the Sheriff-Substitute has stated two questions for our consideration-first, whether the appellants have a title to sue, and second, whether the Sheriff had jurisdiction to try the case. As regards the second question,

I have no doubt that the Sheriff-Substitute sitting at Duns would have jurisdiction to try such a complaint, even although the offence had not been committed in the county in which Duns is situated, but in another of the counties forming part of the united Sheriffdom. The Act of Parliament makes it clear that such counties are one county and one jurisdiction.

The other question is, whether the appellants are entitled to sue? The circumstances disclosed in the case are these, that this sick woman was placed in a hackney carriage at Auchencrow, which we know to be in Berwickshire, and conveyed to Berwick-on-Tweed; that there she was placed in a railway carriage and conveyed to Sprouston Railway Station, of which we only know that it is in the parish of Sprouston, and may be in Roxburghshire; from Sprouston Railway Station she was taken in a cart to Whitmuirhaugh in the parish of Sprouston.

The queston arises, whether the District Committee for the Kelso District of the County of Roxburgh has any title to sue for an offence, a great part of which was on the face of the complaint not committed in the county of Roxburgh at all. The question really is, whether this is of the nature of a continuous offence? I think not. The offence of placing an infected person in a public conveyance of any kind consists in placing the person in the carriage wherever it has to go, and would be committed if before the vehicle started the journey was prevented. That being I am clearly of opinion that we cannot hold that the Kelso Committee has a title to sue persons for placing an infected person in a hackney carriage in Berwickshire, or in a railway train at Berwickon-Tweed.

So,

It only remains to consider the question of the alleged offence at Sprouston Railway Station. There is nothing in this complaint to indicate to us or to the person prosecuted that the parish or railway station of Sprouston is within the Kelso district. Therefore I am clear that the Sheriff was right in holding that upon this complaint as stated the Kelso District Committee had no title to sue. Before I say anything as to the second part of the