facts to be ascertained. It is plainly implied the Board is to consider what are the areas within this large district of open sea in which beam-trawling would be prejudicial to the industry of fishing. It would also be for the Fishery Board's consideration how far a general prohibition could be made effectual in view of the claims which might be made by the subjects of other states to exercise the right of fishing in the open sea. These are delicate and possibly conflicting considerations which the Fishery Board was bound to take into account, and which are altogether ignored in the byelaw, which, as I have said, amounts to a universal prohibition of beam - trawling within the entire district. I think that is a bad exercise of their discretionary power, and consequently that the prohibition is altogether null. But even if the prohibition had been properly made in the exercise of the statutory powers, I am of opinion that the Fishery Board had no power to enforce their prohibition by a penalty, and am not aware that Parliament has ever delegated the power of declaring penalties for new offences to local authorities or subordinate departments. No case of that kind has been cited, and I know of none. Parliament has always prescribed the penalty for the contravention of its legislative provisions, and the present statute is no exception to the rule. The statute of 1889 itself makes the contravention of the bye-law a penal offence, defines the penalty by the 2nd sub-section of section 7, and leaves nothing to be done by the Fishery Board except to enforce the penal provision by a prosecution if they think proper. In the Act of 1895 Parliament declared that the penalty instead of being £5 should be £100, and if the Fishery Board had left the penalty clause alone, the new statute would, of course have taken effect upon the byelaw. But as the Board has chosen to make a penalty clause, the result is that persons charged with a contravention of the byelaw are in this dilemma-that when they are referred to the bye-law the penalty is £5, but when they are referred to the statute the penalty is £100. I do not think that an accused person can be convicted indictment the conclusions of upon an which are, as they are in this case, altogether ambiguous. The result is, in my opinion, that the bye-law of 1892, not being in terms of the statute, is ineffective, and that no conviction can follow upon it, and therefore that the suspension must be sustained and the conviction quashed. LORD KINCAIRNEY-I concur, and have little to add. This is a prosecution for breach of a certain bye-law made by the Fishery Board under powers conferred by the Act 52 and 53 Vict. c. 23, 1889, the third clause of which limits the penalties for contravention of it to £5 for the first offence, and £20 for any subsequent offence-yet the conviction complained of imposes a penalty of £50. Now, the specification of a penalty may not be appropriate in such a bye-law; and no doubt it would be incompetent to . I 1896 impose by a bye-law a penalty which the statute has not authorised. But it is not so clear that such a bye-law may not effectually limit the penalty for a breach of it to a definite amount, if within the amount authorised by the statute; and I cannot hold that a prosecutor can be heard to plead that any part of a bye-law on which his complaint is founded can be disregarded as ultra vires or held pro non scripto. Hence I think that this bye-law, if authoritative at all, must be held, for the purposes of this suspension, to fix the maximum penalty for contravention, unless it has been altered, revoked, or repealed. It has not been altered or revoked by the Fishery Board. It retains all the authority which the Fishery Board did or could confer on it. We have not been informed that it has been expressly repealed or altered by Act of Parliament. It is true that by a sub-section of the Fisheries Regulation Act of 1895 it is provided that a person contravening a byelaw referred to in that Act, that is to say, a bye-law to be made under authority of that Act, shall be liable to a penalty not exceeding £100, and that by a singular method of legislation this sub-section has been lifted bodily and placed in the Act of 1889 in room of sub-section 2 of section 7 of that Act; so that it is in the anomalous position of being a sub-section in both Acts, although it cannot mean the same thing in the one Act as in the other. But while sub-section 2 of section 7 of the Act of 1889 is repealed, the bye-law is not repealed, which presumably it would have been if that had been intended; and I think that the Act of 1895 and the bye-law must be read together, and read consistently, if that be possible; and I rather think it is possible, although it may not be easy, to read them consistently, and for this reason, that the maximum penalty mentioned in the bye-law is within the maximum penalty authorised by the statute; and if that be so, the bye-law remains the authoritative expression of the maximum penalty for contravention if it be authoritative at all. However that may be, I agree with your Lordship in the chair that if a bye-law such as this announces a maximum penalty for a breach of it, that penalty cannot be exceeded in a conviction. On the second and more important point my opinion is not so confident; still on that point also I concur with your Lordships, and in the reasons which your Lordships have given. I think that the bye-law founded on has not been made in the due exercise of the power and discretion conferred on the Fishery Board by the 1st subsection of section 7 of the Act of 1889. That sub-section does not prohibit trawling over the very extensive space within the line mentioned, a space which includes the Moray Firth, but extends very far beyond what can properly be considered as a firth, and includes parts of the ocean at a great distance from the shore, but only in an area or areas within that space to be defined by bye-laws, and it seems to me that what the Board had to do was to define areas along the coast within that extensive space, v. Leith 7, 1896 having regard to local conditions in a manner which may be held to be exemplified by the schedule appended to the Act. In the cases scheduled the Legislature has itself defined the areas over which the Act is to operate. In regard to the much larger space described in section 7, it has not done so, but has left it to the Fishery Board to divide that space into similar areas. The former ground of judgment is, however, sufficient to warrant us in quashing this conviction. The Court pronounced the following interlocutor: "Having considered the bill and heard counsel for the parties, pass the bill, suspend the conviction and sentence complained of simpliciter, and decern: Find the complainer entitled to expenses both in this Court and in the Inferior Court," &c. Counsel for the Complainer-Ure-Clyde. Agent-Alex. Morison, S.S.C. Counsel for the Respondent - Sol.-Gen. Graham Murray, Q.C.-Ferguson, A.-D. Agent-W. J. Dundas, Crown Agent. Wednesday, January 8. (Before the Lord Justice-Clerk, Lord Justiciary Cases-Theft and Reset-Speci- The verdict and sentence, proceeding upon section 59 of the Criminal Procedure (Scotland) Act 1887, bore that the jury "find the accused guilty of reset of theft." A bill of suspension of this sentence was brought, on the ground that there was no specification of the crime of which the complainer was found guilty. The Court refused the bill of suspension. In Justiciary Cases--Evidence-Competency. In a trial for the theft of certain sheep, or for reset of theft, the accused, who was a butcher, stated in defence that he had purchased the sheep from the person who stole them in the belief that he was the owner. support of this defence he proposed to ask this person, who had been called as a witness for the Crown, and who had previously been convicted of the theft, whether he had sold as his own other stolen sheep to another butcher. This question was disallowed, The offence with which the prisoner was charged was that "(1) he did on 28th September 1895, in and about the burgh of Lochmaben in the county of Dumfries, steal two half-bred lambs from a flock of sheep then under the charge of and being driven by John Birnie junior, presently a prisoner in the prison of Maxwelltown; and (2) he did, between 6th and 12th October 1895, from a field on the farm of Marchhill, in the parish and county of Dumfries, belonging to John Blackley, cattle dealer, residing there, steal a bred lamb, two Cheviot ewes, and a cross bred lamb.' At the trial it appeared that John Birnie had stolen the sheep, and that the prisoner had obtained them from him. John Birnie, who had already been convicted and sentenced for the theft of the sheep, including those which the prisoner had obtained, was examined as a witness for the Crown. The agent for the prisoner proposed to ask him the following questions, in order, as he alleged, to prove that the prisoner was entitled to assume that Birnie had a right to dispose of the sheep-"Did you sell two blackfaced ewes to John Simpson, and did you tell him at that time that these two ewes were your own property?" To these questions the Procurator-Fiscal objected, and the Sheriff refused to allow them to be put. The verdict was in the following termsThe jury "find the first charge not proven, and upon the second charge find the accused guilty of reset of theft." A sentence of six months' imprisonment was pronounced. Kennedy brought a suspension, and pleaded — “The sentence complained of should be suspended, and liberation granted, with expenses, in respect of (1) the refusal of the said Sheriff-Substitute to allow competent evidence in exculpation; and (2) the verdict being disconform to the indictment, and wanting in necessary specification." The Criminal Procedure Act 1887 (50 and 51 Vict. cap. 35), section 59, provides"Under an indictment for robbery, or for theft, or for breach of trust and embezzlement, or for falsehood, fraud, and wilful imposition, a person accused may be convicted of reset. Argued for the suspender-(1) The questions were asked for the purpose of showing that the said John Birnie was in the habit of stealing sheep and selling them to butchers as his own. They were therefore competent and relevant in a charge which practically amounted to a charge of reset. Indirectly also they affected his credibility. If a com petent question is refused, the conviction is bad, even if in the opinion of the Court the answer to it would probably not have affected the minds of the jury-Allison's Practice, ii., p. 28-9; Ferguson v. Lindsay and Others, 1829, referred to in Allison, supra. (2) The charge was theft, and the verdict was reset of theft. Admittedly this could only be good under the Criminal Procedure Act 1887, section 59. Even under that Act more specification was required than was given here. The verdict must specify when and where the prisoner was guilty of reset, and also what were the articles resetted. The respondents were directed to confine their argument to the second point. On it they argued-The 59th section of the Criminal Procedure Act 1887 was passed to meet a case like this where the answer to a charge of theft was practically an admission of reset. The verdict and the indictment must be read together, and showed quite clearly when and where the crime was committed, and what were the articles for the reset of which the prisoner was convicted. At advising— LORD JUSTICE-CLERK -There are two points in this case. The first point, with regard to the rejection of evidence, is in certain respects peculiar. The question which it was proposed to put could not affect the credibility of the witness, because the witness was admittedly a thief. There was thus no question of character involved, and what it was proposed to do was to prove that the witness had been in the habit of stealing sheep and selling them to butchers as his own. The question which was disallowed was "Did you sell two blackfaced ewes to John Simpson, and did you tell him at that time that they were your own property?" I am inclined to think that in general I should allow a party to put the question to a witness whether he had been convicted of a crime, but I should not allow a party to bring evidence to contradict the answer which the witness gave, because it is a well-established rule that when you ask questions of a witness in order to damage his character and therefore his credibility, you cannot bring extraneous evidence to prove that his answers to these questions were untrue. The reason of this is plain. Were it otherwise, then instead of one trial you might have four or five to ascertain the guilt or innocence of witnesses of specific crimes. In this case, however, the question would have brought the accused no further forward in his defence even if he had got an answer in the affirmative from the witnesss, and I have therefore no doubt that this ground of suspension must be repelled. The second point raised was, that while the prisoner was charged with theft, he was convicted of reset of theft. This course was admittedly a competent one for the jury to take, and the judge directed them quite properly that if they found that the prisoner had obtained the sheep knowingly from one who had stolen them, they could find him guilty of reset of theft. Some observations have been made on the form of the verdict. Now, I think that caution ought to be exercised in these cases as to the form of the verdict, because the charge is one of theft and the conviction one of reset. But here I think the verdict is quite sufficient under the provisions of the Criminal Procedure Act 1887. What the prisoner is charged with is the theft of certain sheep; what he is convicted of is reset of theft. You may read the indictment in the light of the provisions of the Criminal Procedure Act 1887 as a charge that he did reset these sheep, well knowing them to be stolen, and I think the course taken by the jury was perfectly competent, and that no exception can be taken to the verdict as recorded. I therefore move your Lordships to refuse the suspension. LORD M'LAREN-The first objection to this conviction is, that a question which the agent for the panel proposed to ask one of the witnesses for the Crown was disallowed. I think it is impossible to read the statement of what took place without seeing that the evidence which it was proposed to obtain was that the witness had been in the habit of stealing sheep and selling them to butchers as his own. That being the object of the question, I am of opinion that the question was properly disallowed. If, however, it is said that the object of the question was to affect the credibility of the witness, I think there are two answers to be made to that. The first is, that if you read the statement of the complainer fairly it is clear that that was not the intention of the question as put. The second answer is, that, in my opinion at least, the credibility of the witness could not be affected by it. If, indeed, the witness had prevaricated as to his being a thief, the question might have been allowed. But in this case, where it was admitted he was a thief, I think the interrogation of the witness with respect to previous acts of theft was rightly disallowed. On the second question I agree with your Lordship. When the effect of the verdict is to convict the prisoner of a crime of a lesser degree than that with which he is charged, I agree that it would be improper to find him guilty as libelled. It is also true that where the charge is one of theft, a verdict of reset must be in some way applied to the particular facts. A better verdict might have been to find the prisoner guilty of reset of theft, in that he received the sheep libelled knowing them to be stolen. Nevertheless, I think that the verdict as recorded, taken along with the complaint, applies the finding of the jury to the facts of the case with sufficient clearness. The test is whether the verdict as recorded is a sufficient minute of the finding of the jury to enable the judge to pronounce sentence, and the clerk of Court to draw up the conviction. On both points I concur in holding that the appeal should be dismissed. LORD TRAYNER-I concur with your Lordships. I think the first objection necessarily falls, because the question which it was proposed to put was quite irrelevant. As regards the second objection, I hold that the verdict was a competent and sufficient answer to the question put by the indictment, that is to say, by the indictment read in the light of the provisions of the Criminal Procedure Act 1887. I agree that we should refuse the suspension, though I should like to say that I think that caution is necessary in the framing of verdicts in such cases. The Court pronounced the following interlocutor: "Having considered the bill, and heard counsel for the parties, Refuse the bill and decern: Find the respondent entitled to expenses, which modify to ten guineas," &c. Counsel for the Complainer-Guy. Agents -Clark & Macdonald, S.S.C. Counsel for the Respondent--C. N. Johnston, A.-D. Agent-W. J. Dundas, Crown Agent. Wednesday, January 8. (Before the Lord Justice-Clerk, Lord M'Laren, and Lord Trayner). M VEAN v. JAMESON. Justiciary Cases-Appeal-Summary Prosecutions Appeals Act 1875 (38 and 39 Vict. cap. 62), sec. 3-Computation of Time for Appealing-Sunday. When the last of the three days allowed by section 3 of the Summary Prosecutions Appeals Act 1875 for application to the inferior judge to state a case for appeal falls on a Sunday, application on the Monday following is too late. Malcolm M Vean, ploughman, Balaggan, Stirlingshire, was convicted, in the Sheriff Court at Stirling of trespassing on the lands of Leddriegreen in pursuit of game, and sentenced to a fine of 20s. with expenses. The conviction took place on Wednesday, 24th October 1895. On Monday, 28th October, M Vean applied for a case for appeal. This was granted under a protest that the notice of appeal not having been lodged within three days of the conviction, failed to comply with the regulations set forth in the Summary Prosecutions Appeals Act (38 and 39 Vict. cap. 62), section 3, which, so far as material in the present case, is as follows-"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 the grounds of such determination, for the opinion thereon of a superior court of law, as hereinafter provided; and on any such application being made, the following provisions shall have effect:-1. The appellant shall not be entitled to have a case stated and delivered to him unless within the said three days he shall (1) Lodge in the hands of the clerk of court a bond with sufficient cautioner for answering and abiding by the judgment of the superior court in the appeal and paying the costs should any be awarded by that court, or otherwise, in the discretion of the inferior judge, shall consign in the hands of the clerk of court such sum as may be fixed by the inferior judge to meet the penalty awarded, if any, and the said costs of the superior court; (2) Pay the clerk of court his fees for preparing the case." At the hearing, counsel for the respondent objected to the competency of the appeal, and argued-The notice was too late. This had been expressly decided in England on a similar statute (20 and 21 Vict. cap. 43, sec. 2) -Peacock v. The Queen, 1858, 4 C.B.N.S. 264. Similarly in other cases it had been decided that where Sunday was the last day for giving notice, notice on the Monday following was too late-Rowberry v. Morgan, 9 Exch. 730; The Queen v. Justices of Middlesex, 7 Jurist 396. In Scotland it had been held that in the case of giving notice, Sunday was to be counted among the days allowed, though it might be different in the case of lodging documents-Charleson v. Duffes, June 10, 1881, 4 Coup. 470; Hutton v. Garland, June 13, 1883, 5 Coup. 274. So when the last day of grace falls upon a Sunday, the bill is due and payable on the Saturday preceding-Byles on Bills, 15th ed. p. 276. Argued for the appellant - Here there were three things which the appellant was bound to do within three days, viz., give notice, lodge a bond of caution, and pay the clerk's fees. The last two could not be done on a Sunday, and therefore the case fell under the rule that where the last day for lodging a reclaiming-note was a Sunday, it was in time on Monday following-Russell v. Russell, November 12, 1874, 2 R. 82; Craig v. Jex Blake, March 16, 1871, 9 Macph. 715. At advising LORD JUSTICE-CLERK-The competency of this appeal turns upon the question whether if the last of three days allowed by statute for performing a statutory act be a Sunday, and the act itself might have been performed by the litigant either upon the Saturday or upon the Sunday, the requirement of the statute is met by the performance of the act upon the Monday. But Where a document requires to be lodged in the hands of the clerk of court at his office, it is matter of decision that where the last day allowed for the lodging happened to fall on Sunday, then it was sufficient if it were done on the Monday. on the other hand abundant authority was quoted from the bar indicating that where a mere notice requires to be given as in this case, a Sunday falling within the days within which notice must be given is to be counted, and it is no answer to the objection of "no notice" to say that the last day was a Sunday, and that notice was given on the Monday. Counsel for the appellant, however, pressed upon us that the notice of appeal required in cases like the present is to be treated as part and parcel of a set of requirements which the statute says shall be performed within three days, and that some of these requirements could not be performed on Sunday; that the lodging of caution and paying the fees of the clerk of court were to be performed simultaneously with the giving of the notice of appeal, and had been held to be timeously made if made on the Monday. Now, it may be quite reasonable that the lodging of caution and paying of fees on the Monday should be held to be sufficient compliance with the statute, for neither of these acts can be completed by the litigant without the co-operation of the official of court, which cannot be obtained on Sunday. But I am unable to see that the same rule can be applied to the giving of notice of appeal which requires no formality, and which, so far as the litigant is concerned, may be completed by the posting of a notice in the post office on Saturday or Sunday. It therefore seems to be quite plain that if a notice which the statute says shall be given within three days, and these days expire on Sunday, that the notice is not duly given by being handed to the sheriff-clerk on the Monday following. I am therefore of opinion that this appeal is incompetent, and must be dismissed. LORD M'LAREN-When some step of judicial procedure has to be performed by the litigant within a definite number of days fixed by statute, and the last day is a Sunday, our decisions have sanctioned the completion of the step on the Monday, where the step is one which requires the co-operation of the clerk of court or other official, as the giving in of a report or document of any kind These decisions would cover the necessity of finding security and paying the fees of court. But where the act is something which the litigant can do at his own hand-where he has it in his power to complete the act so far as his own share in it is concerned without the cooperation of a second party, as in the case of the notice required-I see no reason why Sunday should be discounted. If the litigant wishes to have the full time allowed for deliberation, he may still have that, because the post office is open to him on Sunday, and again, if he has scruples, and objects to posting a letter on Sunday, he has the option of giving his notice on the Saturday. I think that the decisions in reference to notice of dishonour of bills of exchange are in point, and they lead to the conclusion I have stated. I am therefore of opinion that we must sustain the objection to the competency of this appeal so far as founded on the notice of appeal not having been given in due time. LORD TRAYNER concurred. The Court pronounced the following interlocutor: (Before the Lord Justice-Clerk, Lord MOFFAT v. SHAW. Justiciary Cases - Conviction - PenaltyWarrant to Recover Penalty by Poinding -Warrant to Imprison for Expenses of Diligence. A conviction under the Vaccination Act 1863 sentenced the accused to a fine and expenses, and contained the following warrant: "In default of immediate payment thereof, grants warrant for the recovery of the said sums by poinding of his goods and effects, and summary sale thereof on the expiration of not less than fortyeight hours after such poinding, without further notice or warrant, and appoints a return or execution of such poinding and sale to be made within eight days from this date, under certification of imprisonment for the period of ten days in default of payment or recovery of the said sums with the expenses of diligence." The Court suspended the conviction on the ground (1) that as it stood it was incompetent, in respect that the statute, while it authorised imprisonment in default of payment of penalties, did not authorise the recovery of penalties by poinding; and (2) that it was impossible to separate the warrant to poind from the other parts of the conviction so as to leave a sentence and warrant which could be upheld. Alexander James Hardy Moffat, residing at St George's Terrace, Bridge of Weir, in the parish of Kilbarchan, was convicted, at the instance of the inspector of poor for the parish of Kilbarchan, of an offence under the Vaccination Act of 1863 (26 and 27 Vict. c. 108), and sentenced to a fine of ten shillings with twenty shillings of expenses. A warrant for the recovery of these sums by poinding, with an alternative sentence of imprisonment for ten days, in the terms quoted in the rubric, was granted. The only authority for the warrant is contained in section 25 of the Vaccination Act, by which the Sheriff is authorised, on conviction, "to decern and adjudge the defender to pay the penalty incurred, as well as such expenses as the Sheriff shall think fit, and to grant warrant for imprisoning the offender until such penalty and expenses shall be paid: Provided always that such war |