LORD RUTHERFURD CLARK was absent.

Parties agreed that the amount of the deduction to be made in respect of the freestone used upon the feu should be £400.

The Court pronounced the following interlocutor:

"Recal the said interlocutor: Find that the defenders have excavated and removed freestone belonging to the pursuers below the authorised formation level of the railway to the value of £4257, 7s. sterling, for which decern against the defenders for payment to the pursuers: Find the pursuers entitled to expenses from 19th July 1894 to the date of said reclaiming-note, and to one-half of their expenses since that date."

Counsel for the Pursuers-Shaw, Q.C. -C. S. Dickson-Burnet. Agents-Campbell & Smith, S.S.C.

Counsel for the Defenders-Balfour, Q.C. --Guthrie-Dundas-Clyde. Agents-Hope, Todd, & Kirk, W.S.

HIGH COURT OF JUSTICIARY.

Friday, October 25.

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

M KENZIE v. M'DOUGALL. Justiciary Cases-Public-House-Breach of Certificate-Sale of Victuals Outside of Licensed Premises.

The holder of an hotel certificate in the form of Schedule A, No. 1, annexed to the Public-Houses Acts Amendment (Scotland) Act 1862, which authorises the sale in the house licensed, "but not elsewhere, of victuals and spirits," is not precluded from selling victuals elsewhere than in the house licensed. Robert M'Kenzie, Spread Eagle Inn, Bridge Street, Kelso, brought a bill of suspension of a conviction by two Justices of the Peace, who had found him guilty of a breach of his certificate.

The breach of certificate charged was that the complainer sold sandwiches, pies, er other articles of food in a refreshment tent outside his licensed premises. The Justices held that this was prohibited by the terms of his certificate, which was in the form prescribed by Schedule A of the PublicHouses Acts Amendment (Scotland) Act 1862. Such a certificate bears that the holder is authorised to keep an inn and hotel "for the sale in the said house, but not elsewhere, of victuals and of spirits or other exciseable liquors."

At advising

LORD JUSTICE-CLERK-I think it to be quite plain that this conviction is bad. The Act of Parliament requires that a per

son must have a certificate for premises in which liquor is sold. He can, like any other citizen, sell victuals without any certificate. A person having an hotel licence receives a certificate to sell victuals and spirits, but the fact that victuals are mentioned in the certificate cannot by implication prevent the holder of the certificate from selling, elsewhere than on the licensed premises, articles for the sale of which no certificate is required. No licence is required by any man to sell a ham sandwich or a pie. I am therefore of opinion that the conviction should be suspended.

LORDS YOUNG and TRAYNER concurred.

The Court suspended the conviction. Counsel for Complainer Henry Johnston-Dewar. Agent-James Purves, S.S.C. Counsel for Respondent-James ClarkAddison Smith. Agent-Party.

Friday, October 25.

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

GALBRAITH v. DISSELDUFF. Justiciary Cases-Ambiguous Complaint and Conviction-Prevention of Cruelty to Animals Act 1850 (13 and 14 Vict. c. 92), sec. 1.

A complaint charging a contravention of the Prevention of Cruelty to Animals Act 1850, set forth that two persons, A, a master, and B, his servant, "did cruelly beat, ill-treat

or cause

to be cruelly beaten or ill-treated" two horses belonging to A, and that B "did unmercifully and unnecessarily lash them with the shaft of a whip, said animals being in a poor, weak, and emaciated condition and completely exhausted." A and B were convicted of the contravention charged.

In a suspension by A, held that the conviction against him was bad, inasmuch as the complaint and conviction taken together left it uncertain whether facts constituting a contravention had been proved against the complainer, and whether he had not been convicted of acts which in the complaint were stated to be the acts of his servant alone.

William Galbraith, carriage-hirer, Kirn, and John Ness, one of the drivers in his employment, were charged in the Justice of the Peace Court at Dunoon with a contravention of the Prevention of Cruelty to Animals Act 1850.

The complaint was in the following terms: "That William Galbraith, carriage-hirer, Kirn, and John Ness, brake driver, Springbank, Kirn, in the united parishes of Dunoon and Kilmun and county of Argyll, did, on 16th July 1895, cruelly beat, ill-treat, overdrive, abuse or torture,

v. Millar

1895

Friday, October 25.

(Before the Lord Justice-Clerk, Lord Young, and Lord Trayner.) WHITCHURCH v. MILLAR. Justiciary Cases-Breach of the PeaceSalvation Army Procession.

A summary complaint set forth that the accused, who was a member of the Salvation Army, on Sunday afternoon, in one of the principal streets of a burgh, "did behave in a disorderly manner, and did march along the said street playing on a concertina or other similar instrument, and refuse to desist, and annoy and disturb the lieges, and commit a breach of the peace.' In addition to the specific facts above libelled, it was proved at the trial that the playing of the concertina and the singing and shouting which accompanied it, "attracted crowd of about thirty or forty persons, thereby making it difficult for people to pass, and that this was the cause of annoyance to several of the witnesses examined, who were residenters in the neighbourhood.

a

Held that the complaint was relevant, and that the facts proved justified a conviction of breach of the peace. A complaint was brought in the Burgh Police Court at Hamilton against Henry Whitchurch, residing in Chapel Street, Hamilton. The complaint set forth that "Henry Whitchurch . . . did, about three o'clock on the afternoon of Sunday, 4th August 1895, in Quarry Street, Hamilton, behave in a disorderly manner, and did march along said street playing on a concertina or other similar instrument, and refuse to desist, and annoy and disturb the lieges and commit a breach of the peace."

Upon this complaint Whitchurch was tried, and the Magistrates "unanimously held it proved that there had been annoyance and disturbance caused by the conduct of the appellant on the occasion libelled, and convicted him accordingly of breach of the peace, but in the circumstances dismissed him with an admonition."

Whitchurch craved a case, which was stated by the Magistrates, and in which the following facts were set forth as the facts proved:-"That the appellant was the 'Captain' of the Salvation Army, and that on Sunday 4th August (the Sunday previous to the trial), about three o'clock in the afternoon, he marched at the head of a procession through one of the principal thoroughfares of the burgh, viz., Quarry Street, playing on a concertina, accompanied with singing and shouting by members of the procession. In consequence of the playing of the concertina on this Sunday, with the singing and shouting being heard at a considerable distance, and also on account of complaints previously made against the appellant for using instrumental music in a similar manVOL. XXXIII.

ner on a recent previous Sunday, a police constable followed the procession, which constituted a crowd of thirty to forty persons, and knowing that the appellant had been formerly warned against playing such instruments on Sundays, went to and called upon him to stop playing the concertina. The appellant replied that he would not stop unless he was arrested. He was accordingly arrested and taken to the police station. He was again asked if he would desist from using instrumental music on Sundays, but he refused to stop, and said he was acting on instructions from headquarters. He was liberated to appear when summoned. It was further proved that the playing of the concertina attracted a crowd of about thirty or forty persons, thereby making it difficult for people to pass, and that this was the cause of annoyance to several of the witnesses examined, who were residenters in the neighbourhood."

The question of law for the opinion of the Court of Justiciary was-"Whether, in order to the facts of the case being laid before them, the Magistrates were right in sustaining the relevancy of the complaint, and whether the Magistrates having held the facts as above stated to be satisfactorily proved, they were justified in finding that a breach of the peace had been committed?"

cause

Argued for the appellant-(1) The complaint was irrelevant. Annoyance and disturbance were indeed alleged, but the only specification of acts which could annoyance was that the appellant played on a concertina. To play on a concertina, although no doubt persons might be found who would object to it, was not a breach of the peace. (2) No facts sufficient to warrant a conviction were found proved. The only material facts found were that there was singing and shouting by a procession consisting of thirty or forty people. The crowd of which the magistrates spoke consisted merely of the persons forming the procession. There was no obstruction found proved, only "that it was difficult to pass." These facts did not amount to a breach of the peace. This case was a fortiori of Hutton v. Main, 19 R. (J.C.) 5, where the conviction was quashed. In Deakin v. Milne, 10 R. (J.Ĉ.) 22, much more specified and proved, and what was done was done in defiance of a proclamation_by the magistrates. In Carnochan v. Ferguson, 16 R. (J.C.) 93, breach of the peace was defined, and what was proved here did not come up to that definition. In Bewglass v. Blair, 15 R. (J.C.) 45, it was averred and proved that there was a disorderly crowd.

was

Counsel for the respondent was not called upon.

At advising

LORD JUSTICE CLERK-As to the relevancy of this complaint I have no doubt. What is said to have been done here might or might not create a breach of the peace, according to circumstances, but it is alleged

NO. III.

or cause or procure to be cruelly beaten, ill-treated, overdriven, abused, or tortured, on the shore road between Kirn and Dunoon, in said united parishes and county foresaid, two brown horses belonging to the said William Galbraith, then under charge of the said John Ness, and did cause the said animals to draw a brake laden with passengers (and the said John Ness did unmercifully and unnecessarily lash them with the shaft of a whip)-said animals being in a poor, weak, and emaciated condition and completely exhausted, whereby said animals were subjected to pain and suffering, contrary to the Act 13 and 14 Vict. c. 92, sec. 1, whereby the said William Galbraith and John Ness are liable to a penalty not exceeding £5."

On 12th August the Justices pronounced a deliverance convicting both the accused, which bore that "the Justices, in respect of the evidence adduced, find the said William Galbraith and John Ness guilty of the contravention charged, and convict them of the contravention charged "

Against this conviction Galbraith brought a bill of suspension, in which he craved the Court to suspend the conviction against him.

Argued for the complainer-The only specification in this complaint of the modus of the offence was in the part of it which exclusively related to Ness, and therefore as regards the complainer there was no specification of the modus. The offences of ill-treating and of causing or procuring to be ill-treated were separate offences, or separate ways of committing the statutory offence, and the Justices were not warranted in convicting of the offences charged without saying in which of the ways libelled the statute had been contravened-De Banzie v. Peebles, 3 Couper 89, per Lord Young, pp. 96-97.

Argued for the respondent-By the statute ill-treating or causing to be ill-treated is one offence punishable by one penalty. It was therefore not an alternative charge, and a general conviction was good-O'Neill v. Campbell, 5 Couper, 305. In that case De Banzie v. Peebles was distinguished. It was not necessary to state in the complaint that the owner was aware of the condition of the horses-Wilson v. Cooper, 3 Couper, 8; Wright & Wade v. Rowan, 2 White, 426. The statement at the end of the complaint as to the condition of the horses qualified all that went before and made it relevant quoad the complainer.

At advising

LORD TRAYNER-I think the relevancy of this complaint is open to very serious question, but I refrain from dealing with that matter, because it appears to me that there is another ground, free from difficulty or doubt, on which the present complaint can be decided. The complainer and John Ness are charged together with a contravention of the statute referred to, but part of the acts libelled as amounting to such contravention is stated to have beeen the act of Ness alone. The conviction however is general, and convicts the complainer of the

"contravention charged." The complainer is therefore convicted of something with which he was not charged; the conviction to that extent is without warrant. This is such a serious disconformity between the charge and the conviction, that in my opinion, the latter cannot be sustained.

LORD YOUNG-I am of the same opinion. It is not improper to say that I regret the result, because I think it is probable that what the Magistrates meant to do was to convict the suspender of having sent out horses unfit for work, and with a servant having authority from him to treat them in such a way as would bring them to the end of the journey, as he in fact did. That offence might have been so libelled as to be a relevant charge, or a valid conviction might have followed even under the charge as made if that conviction had stated what particular facts the suspender was found guilty of. But I agree with Lord Trayner in thinking that it ought to appear clearly on the face of the conviction, taken by itself or in connection with the complaint, that the Magistrates have rightly apprehended the facts which they thought were proved, and upon which they could lawfully convict. I am not judicially convinced that the Magistrates here held facts to be proved which would warrant the conviction of the suspender-the master. The conviction of the servant has not been questioned.

LORD JUSTICE-CLERK-I entirely concur in the judgment proposed by Lord Trayner. This complaint is clumsily framed. But if it had been necessary to decide the case on the question of relevancy, I should be prepared to hold that the complaint was of very doubtful relevancy, but I think it may be read as if the words "said animals being in a poor, weak, and emaciated condition,” &c., qualified the whole libel and so applied to the case of the complainer. But I agree with Lord Trayner that this conviction which convicts both the persons accused of the contravention charged, cannot possibly stand. I have no doubt that Galbraith was wrongly convicted of the whole offence "charged," when part of the contravention was expressed in the complaint as not to apply to him. If it was intended to charge that the complainer was a party to the alleged cruel beating of the horses, it would have been easy to express the complaint so as to make this part of the charge apply to him also. But whoever framed the complaint, chose a form which excluded the application of that part of the charge to the complainer.

The Court suspended the conviction.

Counsel for the Complainer - Guy. Agent-George S. Munro, S.S.C.

Counsel for the Respondent - Graham. Agent-W. S. Harris, L.A.

v. Millar

1895

Friday, October 25.

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

WHITCHURCH v. MILLAR. Justiciary Cases-Breach of the PeaceSalvation Army Procession.

A summary complaint set forth that the accused, who was a member of the Salvation Army, on Sunday afternoon, in one of the principal streets of a burgh, "did behave in a disorderly manner, and did march along the said street playing on a concertina or other similar instrument, and refuse to desist, and annoy and disturb the lieges, and commit a breach of the peace. In addition to the specific facts above libelled, it was proved at the trial that the playing of the concertina and the singing and shouting which accompanied it, "attracted crowd of about thirty or forty persons, thereby making it difficult for people to pass, and that this was the cause of annoyance to several of the witnesses examined, who were residenters in the neighbourhood.

a

Held that the complaint was relevant, and that the facts proved justified a conviction of breach of the peace. A complaint was brought in the Burgh Police Court at Hamilton against Henry Whitchurch, residing in Chapel Street, Hamilton. The complaint set forth that "Henry Whitchurch . . . did, about three o'clock on the afternoon of Sunday, 4th August 1895, in Quarry Street, Hamilton, behave in a disorderly manner, and did march along said street playing on a concertina or other similar instrument, and refuse to desist, and annoy and disturb the lieges and commit a breach of the peace."

Upon this complaint Whitchurch was tried, and the Magistrates "unanimously held it proved that there had been annoyance and disturbance caused by the conduct of the appellant on the occasion libelled, and convicted him accordingly of breach of the peace, but in the circumstances dismissed him with an admonition.'

Whitchurch craved a case, which was stated by the Magistrates, and in which the following facts were set forth as the facts proved: "That the appellant was the 'Captain' of the Salvation Army, and that on Sunday 4th August (the Sunday previous to the trial), about three o'clock in the afternoon, he marched at the head of a procession through one of the principal thoroughfares of the burgh, viz., Quarry Street, playing on a concertina, accompanied with singing and shouting by members of the procession. In consequence of the playing of the concertina on this Sunday, with the singing and shouting being heard at a considerable distance, and also on account of complaints previously made against the appellant for using instrumental music in a similar manVOL. XXXIII.

ner on a recent previous Sunday, a police constable followed the procession, which constituted a crowd of thirty to forty persons, and knowing that the appellant had been formerly warned against playing such instruments on Sundays, went to and called upon him to stop playing the concertina. The appellant replied that he would not stop unless he was arrested. He was accordingly arrested and taken to the police station. He was again asked if he would desist from using instrumental music on Sundays, but he refused to stop, and said he was acting on instructions from headquarters. He was liberated to appear when summoned. It was further proved that the playing of the concertina attracted a crowd of about thirty or forty persons, thereby making it difficult for people to pass, and that this was the cause of annoyance to several of the witnesses examined, who were residenters in the neighbourhood."

66

The question of law for the opinion of the Court of Justiciary was- Whether, in order to the facts of the case being laid before them, the Magistrates were right in sustaining the relevancy of the complaint, and whether the Magistrates having held the facts as above stated to be satisfactorily proved, they were justified in finding that a breach of the peace had been committed?"

Argued for the appellant (1) The complaint was irrelevant. Annoyance and disturbance were indeed alleged, but the only specification of acts which could cause annoyance was that the appellant played on a concertina. To play on a concertina, although no doubt persons might be found who would object to it, was not a breach of the peace. (2) No facts sufficient to warrant a conviction were found proved. The only material facts found were that there was singing and shouting by a procession consisting of thirty or forty people. The crowd of which the magistrates spoke consisted merely of the persons forming the procession. There was no obstruction found proved, only "that it was difficult to pass.' These facts did not amount to a breach of the peace. This case was a fortiori of Hutton v. Main, 19 R. (J.C.)-5, where the conviction was quashed. In Deakin v. Milne, 10 R. (J.Ĉ.) 22, much more specified and proved, and what was done was done in defiance of a proclamation_by the magistrates. In Carnochan v. Ferguson, 16 R. (J.C.) 93, breach of the peace was defined, and what was proved here did not come up to that definition. In Bewglass v. Blair, 15 R. (J.C.) 45, it was averred and proved that there was a disorderly crowd.

was

Counsel for the respondent was not called upon.

At advising

LORD JUSTICE CLERK-As to the relevancy of this complaint I have no doubt. What is said to have been done here might or might not create a breach of the peace, according to circumstances, but it is alleged

NO. III.