and then on the other, indicated the approach of two trains, one from each side; which could scarcely fail to make an impression on any one intending to cross the line, and to keep him back till both trains were past. If only one whistle was sounded, there was not only a want of information of the two trains approaching, but the circumstance was the very thing likely to lure into a false security, from the belief that only one train was coming, and that all was safe.

I

On the occasion in question I think only one whistle was sounded, to wit, that by the downtrain; and, according to the evidence of the driver, the child heard the whistle, and shrank back till the train had passed. The up-train, which was going at its full speed on the other line of rails, did not sound any whistle. The result, as I think, was that the child, not supposing that any other train was approaching, went across the line, was caught by the up-train, and met her death. draw an unhesitating inference, that if the up-train had sounded its whistle as the down-train did, so as to intimate a train approaching on the off as well as on the near line, the child would have paid the same regard to the intimation which she did to that from the down-train. The death of the child is, I think, fairly attributable to the neglect of the railway company; and therefore I think the company liable in reparation to the child's father.

It has been contended that, even if the railway company should be held to have been in fault in not sounding the steam-whistle, there was great rashness on the part of the child in crossing the railway as she did; amounting-for it can only be relevantly so stated-to what has been termed "contributory negligence." It is said that no one can prudently cross the line immediately after a train has passed, because the train will necessarily for a time obscure the view of the other line of rails; that the only prudent course consists in allowing the train to pass to such a distance that the other line comes into view, and is seen to be clear; that the child, in this case, who must be dealt with exactly as a grown up person, was guilty of great imprudence in crossing the line immediately after the down-train had passed; and that as thus she contributed to the risk by her own negligence, no claim of damages lies in respect of her loss of life.

I cannot accede to this view. I agree in thinking that the railway company are not bound to adapt their regulations to the case of very young children, or of people who are deaf or blind, or otherwise incapable of taking care of themselves. On the other hand, I think the company are not entitled to exact a high degree of intelligence and self-possession, far less the possession of such geometrical skill as can measure at the moment the precise distance a train should have passed before the risks of the other line are perceptible. The company must accommodate their working to the average condition of the human being, who is notoriously apt in such circumstances to become flurried and embarrassed. Above all, if there is a plain simple rule, likely, if not to prevent, at all events to diminish the risk, the company is bound to maintain that rule in execution; and cannot, if the rule is not observed, escape from liability, on the speculative theory that, if a larger measure of intelligence had been operative, the accident would probably not have happened. In the present case, the plain simple rule was that both the up and down trains should sound their whistles on approaching this crossing. If they had done so,

then the sound, coming both from the one side and the other, would have indicated trains approaching from both; and, even to the capacity of a child, would have suggested the propriety of pausing till two trains had been seen to pass. When only one whistle was sounded, the child was entitled to infer, as any grown up person would, that no train was approaching on the other line, and to act on that belief. I cannot bring myself to the conclusion that, either in the child or grown up person an inference to this effect involved a want of intelligence or of caution sufficient to relieve the company from the responsibility which otherwise lies on them.

LORD DEAS-I take it there is no doubt about the law applicable to this case. The railway company must use all reasonable precaution within their power to secure the lives and limbs of the public. But this does not carry us very far in this particular case. It is not very easy to see what precaution they could have taken here, except that of sounding a whistle. That being so, the company were bound to sound a whistle at this crossing. It was an important crossing, given at the request of the proprietor on the opposite side of the line, and leading to a sort of public marketgarden there. The child was lawfully on the line, and some precaution was most necessary, especially when it is remembered that previous accidents had happened there. Therefore, seeing that there was no other precaution possible save the sounding of the engine whistle, it was necessary that that should be done; and if the railway failed to do it, and an accident ensued, without any contributory negligence on the part of the victim, the company would be liable. It would not be necessary to shew that the person would not have been killed if the whistle had been sounded.

I do not think that the fact that the company's regulations required the driver to sound his whistle here is material against the company; it would only be so against the driver, in a criminal action for neglect of duty. I do not think therefore that it is necessary that we should have such conclusive evidence as to the sounding or not sounding as we should require in a criminal court. If we are reasonably satisfied on the subject, I think that is all that is necessary. Now the result in my mind of an examination of the evidence is that the whistle was not sounded. There are a number of people called who could hardly have failed to hear, and whose attention was called to the point, and their memories awakened by the accident which did happen. No one who was at hand says distinctly that the whistle was sounded. No doubt the proof was some time after the occurrence, but knowledge of the accident having happened very soon came to the ears of the witnesses, including the engine-driver, and their memories can hardly be at fault. The only thing said to weaken this view is, that several of the witnesses also said that the other train did not whistle; but this does not carry conviction to my mind that they were mistaken in the present instance, and particularly as I am not satisfied that the other train did whistle. I have no doubt that the engineers founded their belief upon constant habit, and I am quite convinced that the whistle in this case was not sounded.

If, then, the whistle was not sounded, the only way in which the railway company can relieve themselves of responsibility is by showing that the

child herself contributed by her own negligence, directly to the accident. I concur in my brother Lord Ardmillan's opinion that we must treat this child as a grown-up person in dealing with the question before us. Was there then contributory negligence in her conduct? I think that depends very much upon her opportunities of seeing what was coming up and down the line. The ground I go upon in differing from the Sheriff's judgment is that there was no such opportunity of seeing up and down the line as is necessary for safety. The evidence on the subject is that of the engineer who made the measurements after the accident; and I may remark in passing that he made his measurements after some very suspicious conduct on the part of one of the company's servants in cutting down and clearing the sides of the railway of bushes. Even he says that it is not until you are within a foot of the metals that you can see any reasonable distance up and down the line. At such a spot you are already in danger, and accordingly I cannot hold that this child was contributory to her own death in such a way as relieves the railway company of responsibility for omitting the proper precaution.

LORD NEAVES-I cannot find that in this unfortunate occurrence the Railway Company have been guilty of neglecting any reasonable precaution. Farther, I think that death was caused by negligent and rash conduct upon the part of the victim herself; at least, conduct which would be considered so in a grown-up person, and which must have the same effect in the particular circumstances in the case of this child. It was no doubt a reasonable precaution on the part of the Company to sound a whistle at this crossing; but I am not satisfied that this was not done. When such a thing is made one of the Company's regulations, I think the party alleging breach of it is bound to prove it not necessarily with the same completeness as in a criminal trial, but sufficiently to afford the Court reasonable grounds for inferring it. Now, here I do not think that the pursuer has sufficiently proved that there was no whistle; for in dealing with the evidence it is impossible to overlook the fact that sounds and occurrences, which take place regularly, are constantly thought to have been made or performed by those whose duty it is to-make them; and still more often are thought to be heard or seen by those who are in the habit of seeing or hearing them. I would require much stronger evidence to satisfy me of the negative assertion which is here essential to the pursuer's case. However, while I entertain this opinion, I think there is quite enough independently upon the other side to relieve the railway of responsibility. Looking upon the girl as legally in the position of an adult, I consider that the course she pursued was singularly careless and negligent. We have a perfect account of what occurred in the evidence of her brother; and, considering his account of what she did, I cannot but think that such conduct was reckless and foolish in the extreme. It would have been so in an adult, and, in a legal point of view, was so in this child. On these grounds, I consider that, whether there was a whistle sounded or not, the child was guilty of such contributory negligence as to relieve the Company from responsibility for her death.

LORD PRESIDENT-This case has been dealt with in a very careful manner by the Sheriff and his

Substitute; and I quite concur in the result they have arrived at. The crossing in question was undoubtedly a very dangerous one, and that for various causes noticed by your Lordships; and particularly because it was upon a curve, in consequence of which a person, passing from the concave to the convex, as this child did, could see a very short way along the line in either direction. But many other circumstances must be taken into consideration. It was broad day light; and it is not pretended that the day was unusually thick. The child, I agree, must be dealt with here as an adult would be; and if there be proved to have been contributory negligence on her part, it is a complete defence to the railway. Now, I am by no means of opinion that it would be excusable for the railway to omit any reasonable precaution; and I do not wish to countenance the notion that it is excusable at such crossings for the driver to omit to sound his whistle as required in the Company's rules; and I think that the giving of that instruction is only a reasonable precaution. But while the whistling is a precaution on the part of the Company, there are various other precautions lying as duties upon the parties themselves—duties, in fact, in one view, of the highest importance, because duties of self-preservation. They know that they are doing a dangerous thing in crossing the line at all, and more particularly in the case of a crossing like this. If there were no opportunity of seeing up and down the line at all, that would throw upon the Company the obligation of some extraordinary precaution. But I think that this is not exactly a a case of that sort; and I cannot so read the evidence of Macfarlane the engineer. But there is also another way in which people become aware of the approach of trains, and that is by the noise they make. We have it in evidence that the children heard the train coming from Glasgow; but the little girl did not give herself the chance of hearing the train coming in the opposite direction. It is said the driver did not whistle. I do not think that at all established; but even if it were so, I should have held the Comaany not liable in this case; for I think there was what we must call reckless imprudence in the child's proceedings -we can hardly, under the circumstances, call it negligence, but the effect is the same. It does not require much experience of railways to know that the proceeding was most dangerous. We have the same thing in streets and roads, where vehicles are passing one another as we want to cross. precaution is necessary there, much more then in the case of a railway. But did she take any precaution?—I do not think she did, The reasonable precaution was to stop and look in the opposite direction. It was just because she did not stop till the down train had gone far enough for her to see along the line in that direction that the accident occurred; and I cannot help coming to the conclusion that she was the cause of her own death, or materially contributing to it. If we could hold a railway differently liable for the death of a child and for that of an adult, I could find grounds for a different view here, but not otherwise. And I see no ground either in reason or in equity for such a principle; and I must, therefore, hold that the child's contributory negligence absolves the Company from responsibility.

If

JOHNSTONE, for the defenders, moved the Court to alter the Sheriff's finding of expenses.

LORD PRESIDENT-We cannot consider the question of inferior Court expenses now; if the Sheriff's

finding of expenses was appealed against, it should have been spoken to before our final judgment was given. As it was not, it must stand.

JOHNSTONE-Your Lordships would not have listened to me on that subject till the merits of the appeal were disposed of.

LORD PRESIDENT-That is a perfectly erroneous view of the matter.

Appeal dismissed, with expenses in this Court. Agent for Appellant-D. J. Macbrair, S.S.C. Agents for Respondents-Hope & Mackay, W.S.

Tuesday, December 13.

MANSON V. DUNDAS. Sheriff-court-Summons-Preliminary Defence. An action having been dismissed by the SheriffSubstitute on a preliminary defence that the summons was inept, not being in conformity with the Act of Sederunt 10th July 1839, held that the summons was in the form prescribed by the Sheriff-court Act 1853. Remarked that it was the duty of a SheriffSubstitute to see that the grounds of action and defences were duly stated.

This was an appeal against an interlocutor of the Sheriff-Substitute of Caithness in an action at the instance of Mrs Alexa Mill or Manson against John Dundas. The summons in said action ran as follows: George Dingwall Fordyce, Esq., advocate, Sheriff of the counties of Sutherland and Caithness, to officers of Court jointly and severally. Whereas it is shown to me by Mrs Alexa Mill or Manson, late tenant at Brims, in the parish of Thurso, now or lately residing at Reay, in the parish of Reay, and county of Caithness, pursuer; against John Dundas, farmer at Brims aforesaid, defender; in terms of the conclusions underwritten: Therefore the defender ought to be decerned to pay to the pursuer the sum of £29, 11s. 6d. sterling, being the amount to which she was and is entitled, of corn valuation of 4 acres of second year's grass on said farm at Brims, from which the pursuer was the outgoing tenant at Whitsunday 1868, and the defender was then the incoming tenant, and as such liable in said amount of £29, 11s. 6d. sterling, but under deduction always of the sums of (1) £1, 88. sterling, for the expense of ploughing; and (2) £3, 5s. sterling, the cost of two quarters and one half-quarter seed, at £1, 6s. sterling per quarter, amounting said deductions to the sum of £4, 13s. sterling, and thus leaving a balance resting-owing to the pursuer of £24, 18s. 6d. sterling, with interest on said balance from the first day of June 1868 at the rate of £5 per centum per annum till payment, with expenses."

The first plea in law for the defender was— "That the summons as laid is defective and inept, inasmuch as it does not relevantly set forth the nature, extent, and grounds of action as required by the Act of Sederunt of 10th July 1839. It is not set forth whether the sum claimed for be due under contract by the practice of the country or otherwise."

The Sheriff-Substitute (HAMILTON RUSSEL) pronounced the following interlocutor:

64

Wick, 15th July 1870.-The Sheriff-Substitute having heard parties' procurators on the preliminary defence, sustains the same: Dismisses the action as laid, and assoilzies the defender:

Finds the defender entitled to expenses, and remits the account thereof when lodged to the auditor of Court to tax and report, and decerns."

The pursuer appealed to the First Division of the Court of Session.

HARPER, for her, maintained that the interlocutor complained of should be recalled, because the action had been dismissed in consequence of a plea founded on an Act of Sederunt which had been repealed by the Sheriff-court Act of 1853; and also that the summons was in conformity with the requirements of the Act of 1853.

BLACK, for the defender and respondent, contended that the appeal should be dismissed, the summons not being a good one under the Act, the grounds of action not being stated.

At advising

LORD PRESIDENT-It is not very easy to understand how any procurator in the Sheriff-court could have founded a defence on an Act of Sederunt which the Act of Parliament of 1853 has completely superseded. That of itself satisfies me that the Sheriff-Substitute has made a mistake here. But apart from that, the first duty of a SheriffSubstitute when a case comes before him is to hear the parties upon the grounds of action, and the nature of the defences. That is the first thing he has to do, and to see that they are intelligibly stated, and if they are not so, he has the power to order a condescendence and defences. Instead of doing so here the Sheriff-Substitute has sustained a preliminary defence that the summons is defective and inept, in so far as it does not set forth fully the grounds of action. Now, that is a defence which a Sheriff-Substitute should not sustain. I think that the interlocutor complained of should be recalled, and a remit made to the SheriffSubstitute to repel the preliminary defence, and to consider whether the record should be closed on the summons and minute of defence, or whether a condescendence and defences ought to be ordered.

But,

LORD DEAS-I quite agree with your Lordship. I am surprised that the Act of Parliament of 1853 has not reached this Sheriff-court by 1870. moreover, I am of opinion that this is a perfectly good summons, and in terms of the statute. The summons fulfils all the requirements of the statute, setting forth the grounds of action, and the amount claimed.

LORD ARDMILLAN concurred.

LORD KINLOCH-I am of the same opinion. I think that the Act of 1853 was meant to do away with the accumulation of statements under the Act of Sederunt of 10th July 1839. I am quite of opinion that this summons is in conformity with the statute.

Appeal sustained.

The Sheriff-Substitute's interlocutor recalled, and remitted to the Sheriff-Substitute to repel the preliminary defence, and consider whether the record should be closed upon summons and minute of defence, or whether condescendence and defences ought to be ordered.

Agents for Appellants-J. & A. Peddie, W.S. Agent for Respondent-David Forsyth, S.S.C.

HIGH COURT OF JUSTICIARY.

Monday, November 14.

BUTE V. MORE.

(Before a full Bench.)

Complaint-Summary Procedure Act 1864-Profanation of Sabbath-Suspension. A complaint proceeding under the Summary Procedure Act 1864, was presented to certain burgh magistrates alleging contravention of the Acts 1661, c. 18, and 1696, c. 31, anent the profanation of the Sabbath, and craving for the statutory penalty of £10 Scots, or on failure to pay the same, that the parties should "be exemplarily punished in their persons." The magistrates found the complaint proved, and adjudged the contraveners to forfeit the sum of £10 Scots of a penalty, and the sum of £1, 10s. of expenses, and in default of payment within fourteen days, adjudged them to be imprisoned for six days.

Sentence suspended, on the ground that the complaint had been incompetently brought under the Summary Procedure Act of 1864. Acts 1661, c. 18-1696, c. 31-Desuetude. Opinion per a full bench of the High Court of Justiciary, that the Scotch Acts anent the profanation of the Sabbath were not in desuetude.

This was a bill of suspension laid before the High Court of Justiciary by James Bute, confectioner, Dundee, and Christina Thomson or Bute, his wife, complaining of and seeking to have suspended a pretended warrant or sentence of the burgh magistrates of Dundee, dated 13th September 1870, whereby the said magistrates “adjudged each of the complainers to forfeit and pay the sum of £10 Scots each of penalty, with the sum of £1 10s. sterling each of expenses, and in default of payment thereof within fourteen days from the date of said pretended warrant or sentence, adjudged each of them to be imprisoned in the prison of Dundee for the period of six days from the date of their imprisonment, unless the said sums should be sooner paid," &c.

The complainers' statement of facts and reasons of suspension were as follows:-"The complainers, upon a warrant granted by William Nicoll, Esq., one of the magistrates of Dundee, dated 8th September 1870, were of that date cited to appear personally at the Burgh Court Room, High Street, Dundee, upon 13th September 1870, to answer a complaint pretending to be under the Summary Procedure Act, 1864, made to the honourable the Magistrates of the burgh of Dundee, by Thomson More, solicitor. The said complaint, a copy of which was served upon the complainers, represented to the said magistrates that the complainers had both, and each or one or other of them contravened the Acts 1661, c. 18, and 1696, c. 31, and the other Acts anent the Profanation of the Sabbath, thereby re-enacted and confirmed, or any of them, in so far as the said James Bute and Christina Thomson or Bute, did upon Sabbath the 14th day of August 1870, both and each or one or other of them, profane the Sabbath day by opening the shop or premises No. 37 Murraygate, Dundee, and keeping it open, or causing the same to be opened and kept open for the sale of goods, more particularly that between the hours of nine and ten o'clock evening of the Sabbath foresaid, the said shop was open

for the sale of merchandise by the said James Bute and Christina Thomson or Bute, and they both and each of them did therein sell or cause to be sold various articles of confectionary or other merchandise to all or one or other" of certain persons therein named, "whereby the said James Bute and Christina Thomson or Bute have each rendered themselves liable in the penalty of £10 Scots, or, on failure to pay the same, to be exemplarily punished in their persons respectively."

(4)

The complainers both appeared to answer to this complaint, and by their procurator stated the following preliminary objections, viz., "(1) The prosecutor has no title to prosecute. (2) The Magistrates of the burgh of Dundee are disqualified from judging the case, in respect they instructed the prosecution, and are liable either in their capacity of Magistrates and Town Councillors, or in their capacity of Commissioners of Police for the royal burgh of Dundee, and have predetermined and prejudged the case. (3) The complaint is irrelevant, and the Act under which the form of procedure is brought is inapplicable. The Acts libelled on are in desuetude and abolished by consuetude and disuse. (5) The panels crave that they shall be tried by a jury. (6) The accused are liable for nothing more than exercising their christian freedom. (7) The accused are not charged with having done anything to outrage the religious feelings or disturb the religious devotions of the community. (8) The accused have not been guilty of using merchandise. (9) The female panel being bound by the laws of God to obey her husband, cannot be held guilty of the charge libelled on." The magistrates repelled these preliminary pleas, and the complainers pleaded that they were not guilty to the complaint. Thereupon certain witnesses were called, and certain productions made, viz., copies of the minutes of the Police Commissioners of Dundee in regard to Sabbath traffic; printed copy of a proclamation under the hand of the clerk to the said Commissioner; copy of the Dundee Advertiser of 16th April 1870; and copy of the Dundee Courier and Argus of 18th April 1870. "The said magistrates convicted the complainers of the contravention charged, and granted the pretended warrant or sentence now sought to be suspended. The complaint does not bear that it was presented, nor the conviction that it was obtained, with concurrence of the procuratorfiscal. The warrant or sentence adjudges imprisonment for expenses, beyond the penalties incurred on conviction of contravention of the statutes libelled on."

CAMPBELL SMITH, for the suspenders, re-stated the preliminary pleas already narrated, and particularly that "the prosecutor had no right or title to prosecute"; and farther pleaded that, "the complaint being at the instance of a private party, should have been made with consent of the procuratorfiscal of Court, and in respect of the want of such consent the conviction should be quashed, and the pretended warrant or sentence suspended. that "in respect the warrant or sentence adjudges imprisonment for expenses beyond the statutory penalties, the same ought to be suspended." The SOLICITOR-GENERAL and STRACHAN in

answer.

At advising

And

The LORD JUSTICE-GENERAL, in giving judgment said-This is a suspension at the instance of James Bute, confectioner in Dundee, and his wife Christina Bute, of a sentence pronounced on the 30th Sep

tember by the Magistrates of Dundee, by which they adjudged each of the complainers to forfeit and pay the sum of £10 Scots of a penalty, and the sum of £1, 10s. of expenses, and, in default of payment within fourteen days from the date of the sentence, adjudged each of them to be imprisoned for a period of six days from the date of their imprisonment, unless the said sum be sooner paid. The conviction followed upon a complaint which was laid upon two statutes-1661, c. 18, and 1696, c. 31-and, as the complaint bears, "and other Acts anent profanation of the Sabbath." Now, the charge made against the complainers in this complaint was, that they did profane the Sabbath by opening the shop or premises kept by them in Dundee, and keeping open, or causing the same to be opened and kept open, for the sale of goods on a certain Sabbath-day in the month of August last. There had been a great many objections taken in the course of the argument to this conviction, and to the complaint upon which it proceeds. It will not be necessary to dispose of all these; but there are some of them which certainly raise questions of very considerable importance. And as far as these objections that are to be specially considered are concerned, it is desirable to deal with them in their natural order. It is first maintained on the part of the complainers that the statutes upon which the complaint is founded are in desuetude. Now, in order to establish that proposition it must be shown not only that for a long period of time no prosecutions have been instituted under these Acts of Parliament, but that the offences which are there visited with penalties are in use to be committed flagrantly and openly, without the penalty being inflicted. In short, to bring an Act of Parliament like those we are dealing with into what, in Scotch law, is called desuetude, it must be shown that the offence prohibited is not only practised without being checked, but that it is no longer considered and dealt with in this country as an offence against law. It is hardly necessary to say that the specific act charged in this complaint is an offence perfectly well known to the law of this country, not practised openly, and certainly not recognised as a legal or proper proceeding. On the contrary, the practice of this country is undoubtedly not to keep open shop on Sunday for any ordinary purpose; and therefore it seems to me that the plea of desuetude is one that cannot be sustained. Of course, the offence of keeping open shop on Sunday, or using any manner of merchandise, is an expression of the Act of 1661, as especially founded on in this complaint, is one that must receive reasonable construction. There are some acts we know are done on Sunday which are unavoidable, which, upon a certain unreasonable construction of these words might be brought within the statute. But we are really not dealing with this question now. The only question is whether, on a natural construction of this Act, the keeping open of a shop on Sunday, or the using of any manner of merchandise on Sunday, is recognised as an offence against public law in this country. Unquestionably it is. The plea of desuetude must be repelled. But then the second objection which was stated by the complainers against this conviction raised a still more important and more generally interesting question. It is contended that this complaint cannot properly be tried under the provisions of the Summary Procedure Act, under which it has been tried and a conviction obtained. In order to deal with these objections, it is necessary to understand precisely, in

the first place, the general scope and purposes of the Summary Procedure Act itself, which, I apprehend, is not to create any new summary jurisdiction, nor yet to extend the summary jurisdiction already existing of sheriff's or justices or magistrates, to any new class of offences, or to apply the summary mode of procedure in use before the statute, and altered and regulated by this Act, to the trial of any offence that might not have been competent to try, or not in use to try, by the summary forms prevailing when the statute was passed. In short, it is evident it is intended to define and regulate the summary procedure of Inferior Courts, and not to extend it. I think this appears from the whole language of the statute throughout, and, indeed, from its very title, which is "An Act to make provision for uniformity of process in summary criminal prosecutions, and prosecutions for penalties in the Inferior Courts in Scotland;" and the preamble, after reciting some Acts previously passed for a similar purpose, although not on so extensive a scale, proceeds to set out that it is expedient to make more provision for the trial of offences punishable upon summary conviction, and for the summary recovery of penalties in the Inferior Courts in Scotland. It is within the scope and purpose of this Act, so distinctly announced, that all of its provisions must be brought. The preamble of the Act still further makes reference to the previously existing statutes regarding summary procedure. These are the 9th Geo. IV., c. 29, which regulated the mode of summary trial before Sheriffs; the 11th Geo. IV., and the 1st Will. IV., c. 37, which amended the previous statutes, and the 19th and 20th Vict., c. 48, which extended a similar process of summary trial within certain narrower limits to the burgh courts and the justices' courts. It may therefore be said, upon the authority of the Summary Procedure Act itself, that the summary jurisdiction of the Inferior Courts of Scotland stood at that time regulated by these three statutes. It was contended, no doubt, on the part of the respondents here, that the summary mode of trial was competent to the Sheriff and to all the inferior courts at common law independent of the statute; and that is perfectly true. It was further contended that in the Sheriff Court in particular there only two modes of trial and two classes of cases known previous to the statutes I have mentioned, namely, the trial of those more grave offences which required to be remitted to the assize, and proper summary trial. In that respect, I think the respondents are entirely in error, and the passage cited from the second volume of Hume, page 66, is quite sufficient to prove that they are; for the learned author, in conformity with all the other books of practice, distinctly explains that before these statutes there were three classes of cases competent to the Sheriff. consisted of those trifling offences which formed the proper subject of summary trial; the second class, a more serious kind, but which yet might be tried without a jury, but not summarily; and the third class, which, from their superior gravity, were invariably remitted to assize. Now the 9th Geo. IV., the first of the three statutes in question, does make reference to each one of these classes of cases in use to be tried before the Sheriff. The 17th section of the statute refers to trial by jury; the 18th section refers to trials of crimes before the Sheriff or other inferior Court in Scotland without a jury, no part of which proceedings is not in use to be taken down in writing in trial by jury, shall

One