in this complaint that in this case what was done did create a breach of the peace. The facts found proved were that the appellant marched at the head of a procession playing on a concertina, there being singing and shouting by members of the procession, and that the playing of the concertina attracted a crowd of thirty or forty persons, thereby making it difficult for people to pass, and that this was the cause of annoyance to several persons who were examined as witnesses, and that the complainer on being asked to desist refused to do so, which facts unquestionably constitute a relevant ground for a charge of a breach of the peace. It is a small breach of the peace no doubt, but still a breach of the peace, and in my opinion the Magistrates were quite right in so holding if they were satisfied that the facts proved established the averment that a breach of the peace had been committed.

LORD YOUNG-This was a small breach of the peace in a sense. There was no violence of any kind, but I think these processions going about the streets are a nuisance to the lieges, and as it was proved to be so here when there was a gathering, --and the same would be true even without it-I am of opinion that the magistrates were quite entitled to interpose and stop it, and if it was not instantly stopped, a prosecution was most legitimate. Should another prosecution prove necessary I hope that it will end very differently from a mere admonition. One may sympathise with this appellant, who no doubt thought he was doing his duty honestly, and was under the influence of people whose orders he could not very well resist, yet there is no other way of protecting the public, and public order in the streets of towns, than by imposing a suitable penalty if this form of nuisance is persevered in.

LORD TRAYNER-I have no doubt about the relevancy of the complaint and the soundness of the conviction upon the facts stated to be proved. I do not want to say anything against this particular appellant. I daresay he was quite earnest and honest in his endeavours to do good, and I think it was more a mistake than a crime on his part, but it was a mistake which amounted to a breach of the peace. For my own part I think the Magistrates acted very discreetly in not imposing a fine, but simply pronouncing an admonition, because in the circumstances it was enough for this particular appellant, and will prevent him from repeating what he has done.

The Court dismissed the appeal.

Friday, October 25.

(Before the Lord Justice-Clerk, Lord Young, and Lord Trayner.) FAIRFOUL v. SOMERVILLE. Justiciary Cases-Regulation of TrafficStatutory Bye-law - "Loitering with Vehicle.

A bye-law for the regulation of public vehicles, passed by the magistrates of a burgh under statutory powers, provided that "the driver of an omnibus shall not loiter therewith on the public streets.'

Held that it was not an offence under this bye-law for the driver of an omnibus to drive slowly backwards and forwards along the streets picking up passengers, there being no obstruction caused to the traffic.

Observations as to the necessity for specification in the complaint of the acts which constitute the offence of loitering in the sense of the bye-law. The Edinburgh Municipal and Police (Amendment) Act 1891, section 65, empowers the Magistrates and Council to make bye-laws in regard to tramway cars, omnibuses, brakes, or other carriages for the public or common conveyance, and for regulating "the places at which the same shall stand, and all other matters tending to promote regularity and public convenience, and for regulating the times of starting on the streets of omnibuses, brakes, or other carriages," under a certain penalty for contravention, to be imposed on the owners or drivers of such vehicles.

Under the powers so conferred the Magistrates passed a bye-law in the following terms "The driver of an omnibus shall not loiter therewith on the public streets, either when on the way to its stance, before starting, or at any other time."

Archibald Fairfoul, omnibus driver, residing in East Adam Street, Edinburgh, was charged in the Edinburgh Burgh Court with a contravention of this bye-law, "in so far as upon the 15th day of September 1895 he did, with the omnibus Dunedin,' No. 91, of which he was the driver, loiter on the public street in Princes Street, Edinburgh, whereby he is liable to a penalty not exceeding £2, payable to the complainer for the public interest, and, in addition, to suspension or revocation of his licence.'

The accused was, after trial, convicted of the contravention charged.

Against this conviction he appealed by stated case to the High Court. In the case the following facts were found proved-"That on the said 15th September 1895, at 11·10 a.m., the appellant drove the said omnibus (which is one of the Roslin omnibuses) empty along Princes Street from opposite Waverley Bridge to Charlotte Street at a slow walking pace, stopping only near Castle Street to take up one passenger; that at Charlotte Street he turned and drove at the same pace eastwards to about Jenner's corner at South St David Street, where he stopped

to take up four passengers; that he then drove at the same pace to the east end of the Register House, where he turned at 11:30, and drove again westwards at the same pace to the west end of Princes Street, where at 11:45 he turned and again drove eastwards, stopping near Renton's shop, opposite Waverley Market, to take up two passengers; and that he then drove eastwards, and left Princes Street at 11:55, and went southwards by North Bridge on his way to Roslin with seven passengers. That the street was not crowded, and that the said omnibus did not impede or obstruct the traffic on it, nor endanger or inconvenience any person."

The questions of law for the opinion of the Court were-"(1) Is the complaint competent or relevant? (2) Do the facts proved warrant the conviction?"

Argued for the appellant-The bye-law was ultra vires, as the terms of the statute on which it bore to proceed did not warrant it or prohibit any "loitering." Further, the complaint was irrelevant as no obstruction was alleged-Leisk v. Galloway, 5 Couper 497, per Lord Young, p. 504. The acts alleged could in no reasonable sense constitute loitering.

Argued for the respondent-It was not necessary to aver or prove actual obstruction; it was sufficient if what was done was calculated to cause obstruction-see Leisk

v. Galloway, supra. What constituted "loitering was a question of fact upon which the Magistrates' decision was final; but in any view it was loitering for a brakedriver, whose destination was Roslin, to drive several times up and down Princes Street.

At advising

LORD JUSTICE - CLERK - The complaint here proceeds on a bye-law which is stated to have been passed by the Magistrates of Edinburgh in virtue of statutory authority, and which has, as a matter of fact, been approved by the Sheriff, although that is not stated. I give no opinion whether the absence of that statement in the complaint makes the complaint irrelevant or not. But the complaint does not specify the way in which the bye-law has been infringed. It simply repeats the word "loiter" and adds nothing further. That word gives really no notice of the charge to be made against the accused. It gives him no notice at all of the modus of the particular offence. The offence is one which can be committed in a variety of ways, and there is no indication of the way in which it has been committed. My own inclination is to hold that this complaint is irrelevant. But apart from that, in the statement of facts found proved by the Magistrates there is no ground for a conviction. This man, who was driving one of the four-in-hand char-a-bancs which start from Princes Street, drove several times up and down the street picking up passengers prior to starting on his journey. The Magistrates found that nothing was done to obstruct the street. Nothing was found proved against the appellant but driving quietly along and stopping from

time to time to pick up passengers. It is absurd to think that any driver who knew that loitering was forbidden should be expected to think that what he was then doing was covered by the word "loitering." I am therefore of opinion that this conviction is bad, both upon the ground that the complaint is irrelevant as being without specification, and also upon the ground that the facts stated by the Magistrates to have been proved do not warrant a conviction even if it were held that the word "loiter" specified an offence.

LORD YOUNG-I am not of opinion that the magistrates may not lawfully make a bye-law against loitering in the streets. I have no doubt that with regard to licensed carriages such as cabs and omnibuses, the magistrates and the police may prevent their drivers loitering with them in the streets. I think the drivers of private carriages also may be prevented from impeding the traffic by loitering in the street -stopping to chat with other drivers, gossiping, and idling. If the charge here had been that the driver was idly stopping to chat or smoke with a friend, the police might have interfered and ordered him to go on; they might have told him that loitering was forbidden and that he was loitering, and if he had refused to comply might have had him prosecuted quite properly. But the driver here was not foitering. He was going along the street picking up passengers in the lawful performance of the lawful duty for which he was employed. I put this question for consideration whether the magistrates would have power to prevent omnibuses going along the streets more than once for the purpose of picking up passengers, and not in course of their journey from one place to another. Should a bye-law to that effect now be made, its legality will be tested when a case under it arises. But no such bye-law has yet been made. The only thing forbidden is loitering. The Magistrate has stated the case with great fairness and propriety. He adds, and very properly, that no inconvenience was caused by what this driver did. I am expressing no disapprobation of what the magistrates have done in making this bye-law. I simply hold that here there has been no valid conviction under it. Omnibuses may without loitering be driven along Princes Street not only for the convenience of people going from one end of the street to another, but also for the convenience of people going to Roslin or elsewhere to which omnibuses may lawfully take them.

LORD TRAYNER-I confine myself strictly to answering the questions which have been put to us. These questions are-(1) Is the complaint competent or relevant? (2) Do the facts proved warrant a conviction? I have great doubt as to the relevancy of the complaint. I have no doubt that the facts proved do not warrant the conviction.

The Court pronounced the following judgment:-.. "Answer the second ques

(Before the Lord Justice-Clerk, Lord

Young, and Lord Trayner.)

LAIRD v. ANDERSON.

Justiciary Cases-Public-House-Breach of Certificate-Inducic-Home Drummond Act 1828 (9 Geo. IV. c. 58), sec. 23-Summary Procedure (Scotland) Act 1864 (27 and 28 Vict. c. 53), sec. 6-Burgh Police (Scotland) Act 1892 (55 and 56 Vict. c. 55), sec. 515.

The Act 9 Geo. IV. c. 58 (the Home Drummond Act) by section 23 provides that the inducia for appearing to answer a complaint for breach of a publican's certificate shall be six days. The Summary Procedure (Scotland) Act 1864 prescribes induciæ of forty-eight hours in the case of all summary complaints. The Burgh Police (Scotland) Act 1892 allows complaints

for breach of certificate to be tried in the police court "in the same

way and manner in all respects

as may be provided for the trial of police offences by any local or general police Act" in force at the place of the accused's residence, or at the place where the offence shall have been committed. Held that the subsequent enactments did not repeal the requirements as to induciæ in 9 Geo. IV. c. 58, and that complaints for breaches of certificate must be served on induciæ of six days.

William Fairweather Anderson, solicitor, burgh prosecutor of Dunbar, brought a complaint under the Summary Jurisdiction (Scotland) Acts 1864 and 1881, the Criminal Procedure (Scotland) Act 1887, and the Burgh Police (Scotland) Act 1892, in the Police Court of Dunbar against Mrs Isabella Paterson or Laird, publican, Bellhaven, Dunbar, charging her with a breach of certificate. Upon this complaint a warrant of summons was issued dated 3rd September 1895, requiring the accused to appear to answer to the complaint on 7th September. The complaint, with warrant of summons thereon, was served on 3rd September. Mrs Laird appeared in answer to this summons. She was represented by an agent, who stated a plea that she had not been properly cited, in respect that under the Act 9 Geo. IV. c. 58, sec. 23, six days' notice of the complaint must be given. The Magistrates on their own motion and against the express objection of Mrs

Laird's agent, adjourned the diet till Saturday 14th September in order to consider the plea. On the 14th the Magistrates repelled the plea, and again adjourned the diet till Saturday 21st September, on which day witnesses were examined, and the Magistrates, in respect of the evidence adduced, found Mrs Laird guilty of the contravention charged. She brought a suspension, and, inter alia, pleaded-"(2) The inducia on the summons was inadequate and contrary to law." The Act 9 Geo. IV. c. 58, sec. 23, provides, "And thereupon (i.e., upon a complaint for breach of certificate being made) "the sheriff or bailie or the justices to or before whom such complaint shall have been made, shall grant a warrant to the officers of court to summon the party complained against to appear at a time and place to be specified in such warrant and summons (such summons being served at least six free days before the diet of appearance) to attend the hearing of such complaint."

The Public - Houses (Scotland) Acts Amendment Act 1862, sec. 18, provides"In the case of any person complained of for any offence against the recited Acts, or this Act, excepting for breach of certificate, it shall be lawful for any sheriff or any one justice or magistrate to or before whom such complaint shall have been presented, unless by the Act otherwise provided, to grant warrant for summoning the person eomplained of upon an induciæ of not less than forty-eight hours to appear to answer such complaint at a time and place to be therein specified.".

The Summary Procedure (Scotland) Act 1861, sec. 6, provides-"On such complaint (i.e., any summary complaint) "being laid before the Court, it shall be lawful for the Court to grant warrant to cite the respondent

The

to appear before the Court on inducia of not less than forty-eight hours.' Burgh Police Act 1892, section 515, provides-"All offences under or against the Public-Houses Acts Amendment (Scotland) Act 1862, and the Acts therein recited, or any of them, or of any Act or Acts amending or superseding the same for any breach of or offence against the terms, provisions, or conditions of any certificate granted under the said Acts, or any of them, may be prosecuted and tried before and by any magistrate or magistrates of police of any burgh officiating in any court for the trial of police offences under the provisions of any local or general police Act, in the same way and manner in all respects as may be provided for the trial of police offences by any such local or general police Act in force in the county, district, burgh or place where the offender shall reside, or the offence shall have been committed, and such magistrate or magistrates shall have power to impose the penalties and punishments, and declare the forfeitures provided in that behalf by the said Public-Houses Acts or any of them." The same Act by section 477 provides-"It shall not be competent to any party who shall appear to answer to any complaint to plead want of due citation or informality in the warrant, citation, or execution."

Argued for the complainer-The inducia were too short. They should have been six days instead of three. Six days were allowed by section 23 of the Act of 1828, and that privilege had never been taken away by any subsequent legislation. Though the Public-Houses (Scotland) Acts Amendment Act 1862 by section 26 permitted offences against the Public-Houses Acts to be tried summarily, that was "subject to the provisions and conditions provided in the said recited Acts, or either of them." Complaints for breach of certificate were exempted from the operation of clause 18, which provided for à forty-eight hours inducia. The Summary Procedure (Scotland) Act 1864, section 6, which provided for a fortyeight hours induciæ, was not intended to curtail a privilege of longer induciæ specially provided in any particular case by Act of Parliament. It was contended that section 515 of the Burgh Police (Scotland) Act 1892 shortened the period previously allowed for induciæ in cases of breach of certificate, but there was nothing in that section about induciæ, nor did section 477, which dealt with procedure in the Police Court, make any provision as to inducia. Any privilege as to length of inducia which had been conferred prior to the Act was therefore left untouched by its provisions. If the induciæ allowed were too short, then the complainer was never properly before the Court, and the whole proceedings were null and void, nor could this invalidity be cured by an adjournment. The complainer was therefore entitled to have this conviction suspended.

Argued for the respondent-The Burgh Police Act provided that complaints for breach of certificate might be prosecuted and tried in the same way and manner in all respects as other police cases. This expression was wide enough to apply to the number of days' induciæ allowed. Other police cases were tried after induciæ of forty-eight hours, and the section quoted put cases of breach of certificate in the same position. Moreover, section 477 provided that it should not be competent for a party who appeared to plead want of due citation or informality in the warrant, citation, or execution. The bill should be refused.

At advising

LORD TRAYNER-The complainer objects to the validity of a conviction obtained against her dated 21st September last, proceeding upon a complaint at the instance of the respondent, charging the complainer with a breach of her certificate as a publican, and consequently of a contravention of the Public-Houses Acts. She objects to the conviction on various grounds, and, inter alia, on the ground that she had not been duly cited to answer the complaint brought against her. The fact is that the complainer was cited on an induciæ of three days, while according to her contention she could only legally be called to answer to the complaint on an induciæ of six days. This objection was stated to the Magistrate when the complaint was

called before him. He does not from the minutes of procedure appear to have dealt with the objection at all. He neither sustained nor repelled it, but simply adjourned the diet. This was irregular certainly. The objection once stated should have been disposed of one way or another. After a second adjournment (neither of the adjournments were at the request of the present complainer) the Magistrate heard evidence and pronounced the judgment now complained of.

By the Act of 9 Geo. IV. cap. 58, sec. 23, it is provided that anyone charged with the offence with which the present complainer was charged shall be summoned before the sheriff, bailie, or justices of the peace to answer thereto, "such summons being served at least six free days before the diet of appearance." It is not disputed, and at all events I think it clear, that if that statutory provision is still in force the present complainer was illegally brought before the Magistrate, and that never having been legally brought before him, the whole procedure subsequent to the first diet of compearance was inept. We have nothing here of the nature of waiver or acquiescence on the part of the complainer, because at the outset of the proceedings her objection was distinctly stated and never departed from. The adjournments of the diet, as I have said, were not made at her request or with her concurrence; they were made, so far as appears, ex proprio motu of the Magistrate, and in the first instance against the express objection of the complainer. The respondent, however, maintains that the citation objected to was quite regular in respect the complaint against the present complainer was brought under the Summary Procedure Act 1864, by section 6 of which it is provided that under the complaints there referred to the person complained of may be cited to appear on an induciæ of not less than forty-eight hours, which inducia was given in the present case. I am not prepared to sustain that contention. It appears to me that the section of the Summary Procedure Act just referred to was intended to provide for all complaints brought under that Act, the procedure in which was not specially provided for by some other statute, but was not intended to repeal or supersede special directions given or provisions made by another statute with regard to the procedure to be followed in any complaint made or raised on account of a contravention thereof. In this connection it is important to observe that while by the PublicHouses Amendment Act 1862 the induciæ on all complaints for any offence against that Act or the Act of 9 Geo. IV. cap. 58, was fixed at not less than forty-eight hours, complaints for breach of certificate were specially excepted, and the inducia for such complaints consequently remained as originally fixed at not less than six free days. This shows that in any complaint for breach of certificate the six days inducia was considered necessary or proper, and such complaint was in that respect to be treated differently from all other com

plaints based upon other contraventions of the Public-House Acts. I am therefore of opinion that the proper induciæ not having been given in the case before us, the complainer was never legally convened before the Magistrate at all, and that the whole proceedings including the conviction were inept. As that is a sufficient ground for setting aside the conviction complained of, it is unnecessary to consider the other objections which have been stated to it.

The LORD JUSTICE-CLERK and LORD YOUNG Concurred.

The Court suspended the conviction.

Counsel for the Complainer-H. Johnston. Agent-James Purves, S.S.C.

Counsel for the Respondent - Dundas. Agent-Alexander Morison, S.S.C.

Justiciary Cases-Pharmacy Act 1868 (31 and 32 Vict. c. 121), secs. 1 and 15-Use of Title" • Technical Chemist" by Unregistered Person.

A scientific instrument maker who was not registered as a chemist under the Pharmacy Act 1868, and who, as part of his business, sold chemicals by retail which were included as poisons in the schedule to the Act, used the designation of "scientific instrument maker and technical chemist," in his price lists, advertisements, and trade circulars.

Held (dub. Lord Young) that the use of the title "technical chemist" in the above designation constituted a contravention of sections 1 and 15 of the Pharmacy Act.

Richard Bremridge, 17 Bloomsbury Square, London, W.C., registrar under "the Pharmacy Acts 1852 and 1868," in name and by authority of the Council of the Pharmaceutical Society of Great Britain, with the concurrence of the Procurator-Fiscal of Court, brought a complaint in the Sheriff Court of the Lothians and Peebles_at_Edinburgh, against William Hume, 1 Lothian Street, Edinburgh, charging him with contraventions of the 1st and 15th sections of the Pharmacy Act 1868. The complaint libelled two separate charges against the accused-(First) that of keeping open shop for the retailing, dispensing or compounding of poisons, he not being a duly registered pharmaceutical chemist, or a chemist and druggist within the meaning of the Act; and (second) that of taking and using the name or title "chemist," in so far as he did use and exhibit the name or title "chemist" or "technical chemist in a printed advertisement or price list issued by him to the public.

The Pharmacy Act 1868, section 1, provides as follows:-"From and after the 31st day of December 1868 it shall be unlawful for any person to sell, or keep open shop for retailing, dispensing or compounding poisons, or to assume or use the title chemist and druggist' or 'chemist' or 'druggist' or 'pharmacist' or 'dispensing chemist or druggist,' in any part of Great Britain unless such person shall be a pharmaceutical chemist or a chemist and druggist within the meaning of this Act, and be registered under this Act, and conform to such regulations as to the keeping, dispensing, and selling of such poisons as may from time to time be prescribed by the Pharmaceutical Society with the consent of the Privy Council." Section 15 provides that any person guilty of any of the acts mentioned in section 1 "shall for every such offence be liable to pay a penalty or sum of five pounds."

On 19th September 1895 the respondent appeared to answer the complaint and pled not guilty. Evidence was led and the diet adjourned till 26th September, on which day the Sheriff-Substitute (SYM), in respect of the evidence adduced, convicted the respondent of the charge first libelled (that is, the charge of keeping open shop for the retailing of poisons) and adjudged him to pay the sum of one shilling of penalty and £2, 2s. of expenses; and found the second charge not proven. No appeal was taken against the first finding, but the complainer intimated an appeal against the second finding, and craved a case, which was stated accordingly. The facts found proved by the Sheriff-Substitute were as follows:-"(1) The respondent is not on the register established under the Pharmacy Acts. (2) The respondent carries on business at 1 Lothian Street, Edinburgh. The nature of his business is explained in the circular or advertisement mentioned under head 3. It includes, inter alia, the sale of poisons (including poisons scheduled in the Pharmacy Act) wholesale, that is, in quantities intended to be re-sold in smaller quantities. (3) No. 3 of process is a copy of a circular or advertisement issued by respondent at the time libelled. It designs him as a scientific instrument maker and technical chemist.' It is the publication of this circular that is complained of in the second charge. (4) It was admitted that the respondent has a thorough knowledge of chemistry. The respondent (who declined to take legal assistance) explained to me that he did not undertake to dispense drugs or compound prescriptions. His contention was that the word 'chemist' is capable of construction according to the circumstances and the context in which it is used, and that he used the term 'scientific instrument maker and technical chemist' with the view of distinguishing himself from a dispensing 'chemist.' He claimed a right to do so.

The question of law for the consideration of the Court was-"Did the respondent by designing himself as a scientific instrument maker and technical chemist infringe sections 1 and 15 of the Pharmacy Act 1868?"