or when they had been appointed. He also averred that he had been unable to ascertain the names of the present directors and secretary, that information having been refused by the solicitors of the company, who had obtained and unwarrantably retained possession of the documents and seal of the company, and that there was no one now in charge of the company's affairs. Held (1) that as this company had no "undertaking" within the meaning of the Railway Companies (Scotland) Act 1867, section 4, that section did no apply here, and consequently that this was not a case in which a judicial factor could be appointed thereunder; and (2) that this was not a case for the exercise of the nobile officium of the Court. Held also (per Lord Trayner and Lord Moncreiff) that the company having already been sequestrated and a judicial factor appointed, and the statements made by the petitioner as to the supersession of the judicial factor by a duly constituted board of directors being too vague to be remitted to probation, the petition was incompetent. Paterson v. Best, p. 827.

Judicial Factor-Trust-Refusal of Trustee to Deliver over Documents- Warrant to Search for Documents and Open Lockfast Places Nobile Officium. Two trustees were appointed under a trust-disposition and settlement which came into operation in January 1893. In November 1899 a petition was presented by one of the trustees and three out of the four beneficiaries under the trust praying for sequestration of the trust estate, removal of the two trustees if necessary, and appointment of a judicial factor. It was stated by the petitioners that the other trustee, who was the fourth beneficiary, while claiming to be an acting trustee, had refused to take any part in the trust administration. The Court, without removing the trustees, sequestrated the trust-estate and appointed a judicial factor. The judicial factor entered upon the duties of his office, and applied to the recalcitrant trustee for delivery of certain documents connected with the trust-estate which were in his possession. The trustee took no notice of the request, and the judicial factor raised an action for delivery of the documents, obtained decree in absence, and charged him upon the decree. The trustee paid no attention to the charge, and the judicial factor presented a note to the Junior Lord Ordinary craving the Court to ordain the trustee to appear and bring the writs in question, or alternatively to grant warrant to messengers-at-arms to search for and take possession of them, and if necessary to open shut and lockfast places. The Lord Ordinary reported the note to the First Division, and the Court (following Orr Ewing's Judicial Factor, 11 R. 682) granted warrant in terms of the second alternative of the prayer. M'Alley's Judicial Factor, p. 919. Jurisdiction--Review-Reduction of Decree in Debts Recovery Court-Debts Recovery

Act 1867 (30 and 31 Vict. c. 96), sec. 17Decree in Absence or in foro-SheriffProcess-Reduction. The pursuer against whom a decree, which bore to be a decree in foro, had been pronounced at defender's instance in the Debts Recovery Court,raised an action for reduction of the decree on the ground that his wife, who appeared for him in the Debts Recovery Court, acted without his authority, and the decree ought to have been in absence. Held that reduction was excluded by sec. 17 of the Debts Recovery Act. Opinion that the pursuer's proper course was to apply for a sist and rehearing under sec. 16 of the Small Debt Act of 1837, incorporated in the Debts Recovery Act by sec. 7 thereof. Opinion that under sec. 4 of the Debts Recovery Act a wife may competently appear in Court to represent her husband. Riach v. Wallace, p. 104. Jurisdiction-Exclusion of Review-Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap. 51), sec. 51-Extraordinary Expenses-Certificate of Surveyor-Allegation of Fraud-Reduction of Award of Sheriff-Competency. By the 57th section of the Roads and Bridges Act 1878 it is provided that where "by the certificate of the surveyor" it appears to the local authority that extraordinary expenses have been incurred in repairing highways, "having regard to the average expense of repairing highways in the neighbourhood," owing to damage caused by "excessive weight... or by extraordinary traffic" passing over the highway, such authority may recover in a summary manner before the sheriff, "whose decision shall be final," the amount of such expenses "as may be proved to the satisfaction of the sheriff to have been incurred." An action was raised for the purpose of reducing a decree of a sheriff, which found that certain extraordinary expenses had been incurred by a local authority by reason of damage arising from excessive weight, and decerned against the pursuer for payment of that amount. There was also a conclusion for reduction of the certificates granted by the road surveyor. The pursuer's averments contained a general allegation that the certificates were granted falsely and fraudulently, but no specific grounds of fact were alleged by him in support thereof. It was further averred that the certificates were not in terms of the statute, because the surveyor in framing them had no regard to the average expense of repairing the highways in the neighbourhood. The decree of the Sheriff was ex facie regular and in Conformity with the terms of the statute, but the pursuer maintained that as the certificates were an essential preliminary to the action before the Sheriff, the whole proceedings were vitiated by their invalidity. Held that the action was incompetent, the Sheriff having dealt with a matter within his jurisdiction and his judgment thereon being final. Observed that the question of the validity of the certificates was one which ought to be

raised before the Sheriff and decided by him. Opinion that the certificates did not form an essential element in the process by which the Sheriff arrived at his decision. Milne & Company v. Aberdeen District Committee of County Council, p. 171.

Jurisdiction-Trade-Mark-Rectification of Register-Patents, Designs, and TradeMarks Act 1883 (46 and 47 Vict. c. 57), secs. 90 and 111. By section 90 of the Patents, Designs, and Trade-Marks Act 1883 it is provided that the Court (defined by section 117 as meaning, "subject to the provisions for Scotland," Her Majesty's High Court of Justice in England) may, on a competent application, make an order for the rectification of the Register of Trade-Marks. An action was brought in the Court of Session, concluding (1) for declarator that a particular trade-mark was improperly entered in the register, and should be expunged; (2) for declarator that the said trade-mark was incapable of registration; (3) for declarator that defenders had no exclusive right to the trade-mark in question; and (4) for reduction of an entry in the register. Held that whether section 90 conferred a privative jurisdiction on the English courts or not, the action was not an application for rectification of the register, and the Scotch Courts had jurisdiction to entertain it. John Dewar & Sons, Limited v. Dewar, p. 188.

Action on Contract Relating to Heritage-Foreign. Held by Lord Low (Ordinary) that an Englishman who has concluded an ex facie formal and effectual contract for the purchase of heritage in Scotland, is subject to the jurisdiction of the Scottish courts in an action for the enforcement of that contract. Thorburn v. Dempster, p. 415.

See Justiciary Cases--Sheriff--Charitable Trust - Fishing - Dean of GuildTeinds-Friendly Society.

Jury Allowed to See Documents Produced in Jury Room. See Justiciary Cases. Jury Trial. See Process-Expenses. Jus quæsitum tertio. See Contract. Justiciary Cases-Relevancy-Specification -Disorderly Conduct. A complaint set forth that the accused was, on a particular day, and within a shop specified, "disorderly in his behaviour to the annoyance of the lieges, by shouting and persistently refusing to leave said shop, contrary to the Glasgow Police Act.' Held that the complaint was not irrelevant for want of specification. Glen v. Neilson, p. 16.

Procedure Jury Allowed to See Documents Produced in Jury Room. In a trial for forgery the jury took the documents produced with them to the jury room when they retired to consider their verdict. In a suspension, held that it was within the discretion of the presiding judge to allow this, and suspension refused. Slater v. H. M. Advocate, p. 17.

Procedure Drawing Drawing Made by Witness in Witness-Box. În a criminal trial a witness made a tracing to illustrate the evidence he was giving. This was

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handed to the jury, and was not noted as a production in the case. Held that there was nothing illegal in this procedure. Slater v. H. M. Advocate, p. 17. Justiciary Cases--Fraud--Relevancy--Sending Fraudulent Telegrams. An indictment set forth that A and B, "having devised a fraudulent scheme to fabricate telegrams pretending to make bona fide bets on horse races, and to send such telegrams after the races to which they referred had actually been run, in pursuance of said scheme" did send certain telegrams to C bearing the post-office code letters C L, pretending that the said telegrams were handed in at 3:35 p.m., at an hour before a certain race was run, said telegrams having been in fact handed in at an hour later than 4.25 p.m., after the hour at which the said race was run, and after the accused had received information of the result of the said race, and did thus induce C to pay the sum of £150 to D, with whom they had an arrangement to share the profits of bets. Held that this was a relevant charge of fraud at common law. Wood and Wight v. Lord Advocate, p. 18.

Indictment-Cumulative Charge. It is competent to libel, on the same facts, an offence at common law and a contravention of a statute. Wood and Wight v. Lord Advocate, p. 18.

Jurisdiction - Sheriff Post Office Act 1837 (7 Will. IV. and i Vict. c. 36), sec. 37. By section 37 of the Post Office Act 1837 it is provided, inter alia, that an offence under the Act, if committed in Scotland, may be tried "either in the High Court of Justiciary at Edinburgh, or in the Circuit Court of Justiciary to be holden by the Lords Commissioners of Justiciary within the district where such offence shall be committed, or within any county or place within which the offender shall be apprehended or be in custody, as if his offence had been actually committed there.' Held that the provision did not take offences under the Act out of the jurisdiction of the Sheriff, and that a charge under it had been properly tried by a sheriff and jury. Per the Lord Justice-Clerk-"In all cases in which by statute the proper sentence is limited to two years, the Sheriff, sitting with a jury, has jurisdiction, unless excluded by special provision.", Wood and Wight v. Lord Advocate, p. 18.

Service of Indictment-Desertion of Diet-Criminal Procedure (Scotland) Act 1887 (50 and 51 Vict. c. 35), sec. 42. Section 42 of the Criminal Procedure Act 1887 provides" When at the second diet the diet has been deserted pro loco et tempore

it shall be lawful after the date of such second diet to give notice to such accused person in the form of Schedule N to this Act annexed, or another copy of the indictment, to appear to answer such indictment at another diet. . . . Provided always that such notice shall be given for a diet to be held not sooner than nine clear days subsequent to such notice." Held that this section only applied to

cases where the existing indictment was proceeded with, and that if a diet was deserted pro loco et tempore and a new indictment served, its provisions had no application. Wood and Wight v. Lord Advocate, p. 18.

Justiciary Cases-Expenses-Poaching Summary Procedure (Scotland) Act 1864 (27 and 28 Vict c. 53), sec. 22-Poaching Prevention Act 1862 (25 and 26 Vict, c. 114). Under sec. 22 of the Summary Procedure (Scotland) Act 1864, expenses in a suit for penalties cannot be given to or against a procurator-fiscal unless such an award is authorised expressly or impliedly by the Act imposing the penalty. The Poaching Prevention Act 1862 imposes (section 2) a penalty on conviction, but does not expressly authorise an award of expenses. It provides (section 3) that any penalty under the Act shall be recovered and enforced in Scotland under the Day Trespass Act 1832. The Day Trespass Act 1832 imposes (sec. 1) a penalty and expenses on conviction, and provides (sec. 8) "The justice or justices of the peace by whom any person shall be summarily convicted and adjudged to pay any sum of money for any offence against this Act, together with expenses, either immediately or within such period as the said justice or justices shall think fit, and that in default of payment at the time appointed, such person shall be imprisoned," . "the imprisonment cease upon payment of the amount and costs. Held that sec. 8 of the Day Trespass Act did not authorise but only referred to an award of expenses, and that there was therefore no authority for an award of expenses in a prosecution under the Poaching Prevention Act. Conviction in which such an award had been made accordingly suspended. Walker v. Bathgate, June 4, 1873, 2 Coup. 460, distinguished. Banks and Mitchell v. Welsh, p. 98.

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Trade-Mark-False Trade Description - Acting Innocently- Merchandise Marks Act 1887 (50 and 51 Vict. c. 28), sec. 2, sub-sec. 2. By the Merchandise Marks Act 1887, sec. 2, sub-sec. 2, a person who sells goods to which a false trade description is applied is guilty of an offence unless he proves certain facts, "or that otherwise he acted innocently." A manufacturer of aerated waters sold some of his waters in bottles embossed with a trade description belonging to another firm, which he was aware he had no right to use. It was proved that he had affixed to each bottle before selling it a printed label bearing his own name and address, and a certificate of the purity of the aerated water manufactured by him, and that he had taken various measures to prevent the use in his manufactory of bottles bearing the trade description in question, but that these had not proved effectual. Held that the question whether the accused had "acted innocently" within the meaning of the sub-section was a question of fact for the judge who tried the case, and that there

was no error in law in the conviction. Jenkinson & Inglis v. Neilson Brothers, p. 100. Justiciary Cases-Evidence-CompetencyQuestion if Witness had Committed Similar Offence. In a prosecution under the Merchandise Marks Act 1887 of a manufacturer of aerated waters for using bottles with a false trade description embossed thereon, the complainer (who was also a manufacturer of aerated waters) gave evidence. It was proposed to ask

him whether he had sold bottles of aerated waters with the name of another firm embossed thereon. Held that the question was rightly disallowed. Jenkinson & Inglis v. Neilson Brothers, p. 100.

Proof-Parole Evidence - Proof of Title of Complainer. Held that a complainer in a prosecution for using a false trade description might competently prove his title to the trade description in question by parole evidence. Jenkinson & Inglis v. Neilson Brothers, p. 100.

Embezzlement - Indictment - Relevancy-Knowledge of Partner of Firm's Possession Criminal Procedure (Scotland) Act 1887 (50 and 51 Vict. c. 35), sec. 8. The Criminal Procedure (Scotland) Act 1887, sec. 8, enacts that "it shall not be necessary in any indictment to allege that any act of commission or omission therein charged was done or omitted to be done... knowingly' . ... or to use any similar words or expressions qualify. ing any act charged, but such qualifying allegation shall be implied in every case in which according to the existing law and practice its insertion would be necessary in order to make the indictment relevant." An indictment set forth that the accused, or the firm in which he and his brother were sole partners, having received certain sums for investment, he did embezzle the same. Objections stated in respect (1) that possession by a firm was not relevant to infer criminal responsibility to account against a partner, and (2) that the firm's possession was not alleged to have been known to the accused, repelled, and held that the word "knowingly" must be implied in pursuance of section 8 of the Criminal Procedure (Scotland) Act 1887, so as to infer that the accused was aware of the firm's

possession. H. M. Advocate v. Colquhoun, p. 237.

Embezzlement Indictment-Specification. An indictment bore that certain sums alleged to have been embezzled had been received by the accused "either in money or in cheques." Objection on the ground of insufficient specification repelled. H. M. Advocate v. Colquhoun, p. 237.

Embezzlement - Indictment - Latitude of time. An indictment bore that the accused had received various sums on certain specified dates between November 1892 and June 1899, and that on said dates, or between said dates and 1st August 1899, he had embezzled the same. Objec tion to the latitude of time repelled, in respect that it had not been stated at the

first diet; but opinion (per Lord JusticeClerk) that in the circumstances the latitude was reasonable. H. M. Advocate v. Colquhoun, p. 237.

Justiciary Cases-Procedure--Conviction in Absence of Fiscal-Nullity. The presence of the authorised prosecutor in Court is essential to the validity of criminal proceedings. A conviction, following on the confession of the accused, where the prosecution was conducted by one not authorised to act as fiscal, suspended. Walker 2. Emslie, p. 239.

--Complaint-Relevancy-Merchandise Marks Act 1887 (50 and 51 Vict. cap. 28), sec. 2-False Trade Description-"Intent to Defraud." The Merchandise Marks Act 1887 enacts, sec. 2 (1)-"Every person who... (d) applies any false trade description to goods.. shall, . . . unless he proves that he acted without intent to defraud, be guilty of an offence." Sec. 2 (2) Every person who sells . . . any goods .. to which any . . . false trade description is applied. shall, unless he proves (a) that having taken all reasonable precautions against committing an offence, ... he had . . . no reason to suspect the genuineness of the... trade description... or (c) that otherwise he had acted innocently, be guilty of an offence." The appellants and respondents being rival manufacturers of aerated waters, the appellant, without the authority of the respondents, filled with aerated water of his own manufacture and sold certain bottles which were stamped with the name of the respondents. He had previously received warning that this was an offence. In a complaint at the instance of the

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spondents, under sec. 2 (2) for selling goods to which a false trade description was applied, the Sheriff convicted the appellant, but found that he had acted "without intent to defraud." Held that as the appellant had received warning he had not acted "innocently" within the meaning of sec, 2 (2) (c), and conviction sustained. Haddow v. Neilson Brothers, p. 240.

Regulation of Railways Act 1868 (31 and 32 Vict. cap. 119), sec. 23-Complaint -Trespass-Relevancy. The Regulation of Railways Act 1868, sec. 23, enacts-"If any person shall be or pass upon any railway except for the purpose of crossing the same at any authorised crossing, after having received warning," he shall be liable to a fine not exceeding 40s. Section 2 defines "railway" as "the whole or any portion of a railway or tramway, whether worked by steam or otherwise.' Held that the platform of a railway station is not a portion of the railway within the meaning of section 23, and that a complaint for trespassing upon a station platform, founded on that section, was irrelevant. Thomson v. Great North of Scotland Railway Company, p. 242. -- Complaint-Relevancy-Order Made under Statutory Authority-Omission of Reference to Section of Statute. complaint for contravention of an Order

In a

made under statutory authority it is sufficient to set forth the statute under which the order is made, without libelling the particular section, Jameson v. Dow, p. 243. Justiciary Cases Diseases of Animals Act 1894 (57 and 58 Vict. cap. 57), secs. 44, 52Sheep-Scab Order 1898," Lawful Excuse" -Inspector's Certificate. The Diseases of Animals Act 1894 enacts, section 52-“If any person, without lawful authority or excuse, proof whereof shall lie on him, does any of the following things, he shall be guilty of an offence... (iii) if he fails to do any .. thing which by this Act, or by an Order of the Board, or by a regulation of a local authority, he is required to... do." Section 44 (5) provides

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A certificate of a veterinary inspector to the effect that an animal is or was affected with a disease specified in the certificate shall for the purposes of this Act be conclusive evidence in all courts of justice of the matter certified." pursuance of an Order of the Board of Agriculture the inspector of a local authority, by notice in writing, required the owner of certain sheep, certified by the inspector to be affected with scab, to treat them with dipping or other remedy. In a prosecution against the owner for failure to comply, the Justices admitted evidence to prove that the sheep were not affected with scab, and in respect thereof held that the respondent had lawful excuse, and found the charge not proven. Held that the inspector's certificate being conclusive, evidence to contradict it was incompetent; that the respondent therefore had failed to prove a "lawful excuse"; and that he ought to have been convicted. Jameson v. Dow, p. 243.

- Appeal-Competency-Civil or Criminal-Summary Procedure Act 1864 (27 and 28 Vict. c. 53), sec. 28. The Summary Procedure Act 1864 enacts (sec. 28)—" In all proceedings by way of complaint instituted in Scotland in virtue of any such statutes as are herein before mentioned, the jurisdiction shall be deemed and taken to be of a criminal nature where, in pursuance of a conviction or judgment upon such complaint, or as part of such conviction or judgment, the Court shall be required or shall be authorised to pronounce sentence of imprisonment against the respondent, or shall be authorised or required, in case of default of payment or recovery of a penalty or expenses, or in case of disobedience to their order, to grant warrant for the imprisonment of the respondent for a period limited to a certain time, at the expiration of which he shall be entitled to liberation; and in all other proceedings instituted by way of complaint under the authority of any Act of Parliament the jurisdiction shall be held to be civil." Held (diss. Lord Moncreiff) that where an incorporated company, against which a sentence of imprisonment cannot be pronounced, is charged with a statutory offence, the jurisdiction is civil and

not criminal within the meaning of section 28, and that an appeal to the High Court of Justiciary is incompetent. North British Railway Company and Others v. Dumbarton Harbour Board, p. 294.

Justiciary Cases -Procedure-Note of Documentary Evidence-Summary Procedure Act 1861 (27 and 28 Vict. cap. 53), sec. 16. The Summary Procedure Act 1864, sec. 16, requires that the "record shall set forth

a note of any documentary evidence that may be put in" at a trial under the Act. At the trial of a person charged with the theft of "600 liras Italian money, of the value of £24 sterling or thereby," the prosecutor produced in evidence (1) nine Italian bank notes of the value libelled, and (2) 22 £1 notes of a Scotch bank. It was proved that the accused had changed the Italian notes for the Scotch notes, the latter being subsequently found in his possession, and he was convicted. The record of the proceedings did not set forth the production of the notes. In a suspension at the instance of the accused, held (diss. Lord Adam) that neither the Italian nor the Scotch notes had been produced as documentary evidence within the meaning of sec. 16, and that it was therefore unnecessary to note them in the record. pension accordingly refused. Jacobs and Another v. Hart, p. 648.

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Statute--Interpretation-Variation between Words of Schedule and Enacting Clause. Where the words used in a schedule vary from those of the enacting clause, the rule is that the latter must prevail. Jacobs and Another v. Hart, p. 648.

-Betting--"Skill Competition"--Betting Act 1853 (16 and 17 Vict. cap. 119), sec. 1. The proprietors of a newspaper published the conditions of a "Skill Competition,' by which they offered a money prize to the person who should successfully predict the winning teams in certain football matches. Each copy of the newspaper entitled the purchaser to one chance or coupon, and additional coupons might be purchased without limit. It was proved that money was paid to the successful competitors in terms of the published conditions. In a prosecution against the proprietors of the newspaper under the Betting Act 1853, sec. 1, for opening, keeping, or using an office for the purpose of money being received as the consideration for an undertaking to pay money on events or contingencies of or relating to games of football, held that whether the transaction amounted to betting or not, the respondents were guilty of an offence within the meaning of the Act. Hart v. Hay Nisbet & Company, Limited, p. 652.

Burgh Prosecutor-Person Appointed by Magistrate to Conduct Trial for Burgh Prosecutor-Mode of Appointment-Verbal Appointment-Burgh _Police (Scotland) Act 1892 (55 and 56 Vict. c. 55), sec. 462. Section 462 of the Burgh Police (Scotland) Act 1892 enacts as follows"Every proceeding or trial before the

magistrate shall be conducted in the official name and at the instance of the burgh prosecutor and any other competent person appointed by the magistrate for this purpose may, in the absence of the burgh prosecutor, act in his stead and name, either at the first or any adjourned diet, and sign complaints for him." Held, in a suspension, (1) that the appointment by the magistrate under this section of a person to conduct a trial or proceeding before the magistrate in place and name of the burgh prosecutor must be made in writing, and must be signed by the magistrate, and consequently (2) that a conviction proceeding upon a complaint signed for the burgh prosecutor by a person verbally authorised to prosecute_by_the magistrate could not be sustained. Dunlop v. Sempill, p. 750. Justiciary Cases-Appeal-Competency. Action of Sequestration for Rent in Small Debt Court-Refusal of Warrant for Sale -Small Debt Act 1837 (1 Vict. c. 41), secs. 5 and 31, and Schedules B and G. The Small Debt Act 1837, section 5, enacts that the Sheriff, on hearing applications for sequestration for rent, "may either recal the sequestration in whole or in part, or pronounce decree for the rent found due, and grant warrant for the sale of the sequestrated effects." In an action of sequestration for rent raised in the Small Debt Court the usual warrant was granted to sequestrate the goods on the premises, and thereafter the Sheriff pronounced decree for the rent, but while not recalling the sequestration he refused to grant warrant for the sale of the sequestrated effects. In an appeal, held (dub. Lord Kincairney) that the refusal to grant a warrant of sale was a "deviation in point of form from the statutory enactment" in sec. 5 of the Small Debt Act, which "prevented substantial justice from having been done," within the meaning of section 31 of the Small Debt Act 1837, and that the appeal must consequently be sustained. Clark v. Lowe, p. 752.

Summary Procedure

Substitution

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of One Complaint for Another-Copy of Complaint not Served on Accused. A person who had been apprehended and brought before a magistrate upon summary complaint, was remitted to the Sheriff Court, but was sent back to the Burgh Court by the procurator-fiscal. On the following day he was brought before a magistrate upon a second summary complaint, when the case was adjourned for a week, and the accused was admitted to bail. At the adjourned diet the accused appeared and was asked to plead to a third summary complaint, which was substantially the same as the two former ones, except that it libelled a previous conviction. No copy of this complaint was served upon the accused. this diet and at the previous diet the accused was represented by a law-agent, and at this diet no motion was made for an adjournment. The trial accordingly proceeded and the accused was convicted. In a suspension, held that the

At