out at Dundee with that taken in at Calcutta, the chain being broken by the Suez incident. I revert to this that the bill of lading sets up the defenders' case, unless its accuracy has been broken down. The shipowners have carefully proved its accuracy, and they have gone on to show that opportunities occurred during the voyage for the goods going amissing.

It seems to me that the Sheriff-Substitute's conclusion is right, although the findings in his interlocutor may be slightly varied.

LORD ADAM--I am of the same opinion. It is no doubt true that the receipt granted by the master of a vessel in the bill of lading for certain goods is not conclusive evidence against the owners of the vessel that these goods were in point of fact received on board. But nevertheless I think that that receipt does charge the owners with the goods. They may discharge themselves in many ways, but the onus lies upon them to show that the goods acknowledged in the bill of lading were never in fact received on board, or it may be that owing to an exception in the charter-party they may discharge themselves of the goods.

Now, looking at the facts in the case, I agree with your Lordship that so far as the owners are concerned, all the evidence goes to confirm the fact that they did receive the goods. The captain took minute care that the goods were checked before he signed the bill of lading.

All that the owners say is, that though they are unable to say how the goods disappeared, they did in point of fact dis

appear.

I agree with your Lordship and with the Sheriff-Substitute that that is not sufficient to free them from liability.

LORD M'LAREN-I am very far from asserting that in every case of discrepancy as to weight between descriptive statements in bills of lading and the quantities of goods actually taken on board and delivered, or even in the case of a discrepancy as to the precise number of a large quantity of bales or packages, the bill of lading is to be treated as a document laying upon the owners an unqualified obligation to deliver according to its terms.

It has been laid down under different forms of expression in a series of cases that the master has no authority to sign bills of lading except for the numbers and quantities of goods which he has taken on board his ship, and if it be proved that bills of lading do not represent goods put on board, then although the bills of lading may be obligatory on the master who signs them, they will not in the case supposed be binding on the owners.

But the question of fact which arises in this case is, I apprehend, to be solved according to the principle laid down in the case of M'Lean & Hope v. Fleming by one of the noble and learned Lords taking part in that case. Lord Chelmsford, after stating the legal limitation of the master's

authority, proceeds-"But it is not to be presumed that the master had exceeded his duty. His signature to the bills of lading is sufficient evidence of the truth of their contents to throw upon the shipowner the onus of falsifying them and proving that he received a less quantity to carry than has been acknowledged by his agent." Now, the facts of the case in which this principle was laid down were of this nature. It was a case of a contract for carrying a cargo of bones from the Black Sea to Scotland. The ship came home only half filled. The master had protested for short cargo, but, in ignorance of the language in which the bills of lading were expressed, the master had signed bills of lading representing a quantity in quintels amounting to a full cargo of bones. All the Judges who took part in the decision both in this Court and in the House of Lords were of opinion that the owner had discharged the onus of proving that the full cargo represented in the bills of lading was not in fact shipped. I observe the Lord Chancellor says-"As regards the matter of fact, I think it is proved to demonstration that the cargo never was on board." But one sees that even in cases where there is no fraud or systematic short delivery, there may be discrepancy of weight arising from the carelessness of weighers and difficulty of maintaining a perfectly efficient system of checking the weights and the like. I am anxious that in anything we decide in this case it should not be supposed that in a question as to weight the amount or quantity stated in the bills of lading is to be precisely binding on the owners of the ship, and that in case of a slight discrepancy between the weight stated in the bill of lading and the weight as ascertained at delivery, pecuniary claims against the owners would necessarily and probably arise. Here we have nothing to do with weight, but the contract expressed in the bill of lading is for the delivery of a specific number of bales of jute. These are not small objects as to which mistakes in counting might easily be made. They are bales weighing four ewts. Their loading necessarily proceeds slowly though aided by steam machinery, and there ought to be no difficulty in keeping a rigorously exact account of the number of bales put on board. Therefore in such a case I should think the presumption that the bill of lading truly represented the cargo put on board is peculiarly strong, always supposing that there is no fraud on the part of the master. There is evidence no doubt that the fraudulent abstraction of cargo is a thing which is extensively practised at the port of shipment, Calcutta, but there is no suggestion that there was fraud in this particular case, and I am unable to find in the evidence any statement which proves that a full cargo was not put on board, or which even throws reasonable doubt on the correctness of the bills of lading. If this vessel had performed her voyage with out detention at any place the circumstance that the holds never were opened or that the goods never were displaced in the course of the voyage and that all cargo found in

v

the hold at Dundee was delivered,-this might have gone some length to prove or suggest the probability of numerical error in the bills of lading. We are not dealing with a case of that kind because we know that the ship was stranded near Suez, and it is common ground that 150 bales or thereby were removed from the ships and put into lighters where they lay for a whole night, and a question arises whether the full number of bales was put on board again.

Now, the witnesses who were examined on this point-the master and the ship's officers-say that they were satisfied that all the bales were put on board on the following day, and I do not doubt that in the evidence which they have given these witnesses express their honest belief as to the state of the facts on which they were examined. Still I cannot see that the evidence altogether excludes the possibility of certain bales having been lost in the process of transhipment. Theft is not the only possibility. Bales may have fallen into the sea when being loaded or unloaded, or while they were lying loose in the lighters. In short, we are necessarily in some ignorance of the history of this incident of the voyage. It is not urged on the part of the owners that they are within one of the known exceptions of a contract of carriage. If their case had been that the ship was stranded, that they used their best endeavours to take care of the cargo during the operation of lightening the ship, but that some of the bales had disappeared notwithstanding the use of proper precautions, a different question would have been raised, and one can easily see that in such a case the owner might succeed in avoiding liability on different grounds. But the owner's case as maintained by evidence and in argument is that it has been proved that all of the bales taken out of the ship at Suez were restored, and they seek to bring the case to this-that it is certain that the full quantity of goods set out in the bills of lading was not put on board. I do not think that the evidence is so conclusive on that point as to satisfy me that bales may not have disappeared in the course of the voyage. The result is that the owners have I think failed to discharge the duty which was incumbent upon them, if they wished to avoid the present claim, of establishing that the master had signed bills of lading in excess of the quantity of goods put on board, so that to the extent of the difference the owners are not bound by his act. I agree with your Lordships that the interlocutor ought in substance to be affirmed.

LORD KINNEAR--I am of the same opinion. A shipmaster has no authority to bind his owners by an acknowledgment on a bill of lading for delivery of goods which have never been taken on board, but on the other hand the master is the owner's agent to receive the goods when the ship is on general freight, and therefore his bill of lading is evidence against them that the goods which he acknowledges to have been shipped were in fact shipped. The owners

may be released of the obligation which it prima facie imposes on them to deliver the goods in good order, if they can show that as matter of fact these goods were not put on board; but then the onus of falsifying their own bills of lading, or their master's bills of lading, lies on them. Therefore it appears to me that the only question we have to consider is the question of fact whether the owners have demonstrated that the bales now in question, which their master acknowledges to have received, were never in fact put on their ship. On that question my verdict is in the negative. We cannot infer the quantities shipped from the quantities delivered, because in consequence of what occurred in the Gulf of Suez the owners have failed to prove that all the goods shipped at Calcutta were carried safely to Dundee. I think they have failed to disprove the bill of lading, and therefore I agree with your Lordships that the Sheriff-Substitute's interlocutor should be in substance affirmed.

-Reparation

Process-Diligence-Recovery of Documents Railway Accident to Wayman-Right to Recover Reports and Communications between Head Officials and Local Officials-Regulations of Other Railway Companies.

A wayman in the employment of a railway company having met with a fatal accident, his widow and children brought an action against the company.

Held that they were not entitled to a diligence for recovery (1) of the rules and regulations of other railway companies, or (2) of reports and communications passing between the head officials and subordinate officials of the defenders' company.

In this action, which was raised in the Sheriff Court at Aberdeen, the widow and children of William Silver sued the Great North of Scotland Railway Company for damages on account of the death of the said William Silver, who was a foreman wayman in the defenders' employment.

The tenor of the pursuers' averments was as follows-On the morning of January 23, 1893, William Silver was employed in seeing that a section of the defenders' railway was clear. He was examining the up-line,

v. Lord Abinger

19, 1894

HIGH COURT OF JUSTICIARY.

Friday, January 19.

(Before the Lord Justice-Clerk, Lord
M'Laren, and Lord Wellwood.)

M'EWEN v. LORD ABINGER. Justiciary Cases-Form of ComplaintPluris Petitio - Reference to General Statute Modifying Penalty Under Special Act-Summary Jurisdiction (Scotland) Act 1881 (44 and 45 Vict. c. 33), sec. 6.

A complaint under the Summary Jurisdiction (Scotland) Acts 1864 and 1871, set forth a contravention of the Day Trespass Act (2 and 3 Will. IV. 68) and craved the imposition of a fine not exceeding £2, and in default of payment a sentence of imprisonment

C.

'for any time not exceeding two calendar months." The prayer concluded for "the penalties provided by the said Act."

The accused was convicted and fined £1, with alternative of ten days' imprisonment.

The Summary Jurisdiction (Scotland) Act 1881 provides by sec. 6-"In all proceedings under the Summary Jurisdiction Acts . . . when the amount adjudged to be paid exceeds £1, but does not exceed £5, the period of imprisonment shall not exceed one month."

Suspension in respect that the complaint failed to state that the term of imprisonment fell to be restricted under said section refused-M'Leod v. Tarras, October 24, 1892, 3 White 339, followed.

Observations on the form of summary complaints charging contravention of a special Act, the penalty for which has been modified by a general

statute.

This was a bill of suspension brought by Alexander M'Ewen, plasterer, FortWilliam, against the Right Hon. Lord Abinger of Inverlochy Castle, in the parish of Kilmonivaig, Inverness-shire, craving suspension of a sentence dated on or about the 18th day of March 1893, whereby the Sheriff-Substitute of Inverness at FortWilliam found the complainer guilty of being on lands of Inverlochy upon the hill known as Cairn Dearg, in the parish of Kilmonivaig and county of Inverness, on Saturday the 25th day of February 1893 years, during the daytime, and without leave of the proprietor, in pursuit of game, &c., in contravention of the 1st section of the Act (2 and 3 Will. IV. cap. 68), and therefore fined and amerciated him in the sum of £1 sterling with £1, 5s. of expenses; and failing payment decerned him to be imprisoned until he should pay said fine and expenses, but said period of imprisonment not to exceed ten days from the date of said sentence-the sentence being pronounced on an application at the instance of the said Lord Abinger.

66

The complaint which bore to be laid under the Summary Jurisdiction (Scotland) Acts 1864 and 1881, and the Criminal Procedure (Scotland) Act 1887, after charging the suspender with a contravention of the Day Trespass Act, concluded as followsWhereby the said Alexander M'Ewan is liable to forfeit and pay a sum of money not exceeding £2 costs of conviction; and in default of payment thereof at the time appointed, to be imprisoned with or without hard labour for any time not exceeding two calendar months, unless payment be sooner made." The prayer of the complaint was "to convict the respondent of the aforesaid contravention, and to adjudge him to suffer the penalties provided by the said Act."

In the bill the suspender stated-(2) The penalty craved is erroneously set forth in the complaint. The respondent failed to give effect to section 6 of the Summary Jurisdiction (Scotland) Act 1881, which provides that the period of imprisonment shall not exceed one month where the fine imposed exceeds £1 but does not exceed £5. This statement of the alternative open to the Judge was incorrect and misleading, and did not bring under his notice that he was bound by the above Act to restrict the alternative of imprisonment to one month, to the great prejudice of the complainer.

The suspender pleaded-"The conviction complained of should be supended in respect that the penalty craved by the complaint is excessive, illegal, and misleading.'

The complainer referred to Blain v. Rankin, May 27, 1892, 3 White 221; and M'Leod v. Tarras, October 24, 1892, 20 R. (J.C.) 6.

The respondent argued that the mistake was pointed out to the Sheriff and so no prejudice had been sustained. The sentence pronounced was quite competent. The case was within the principle of Chisholm v. Black, June 12, 1871, 2 Couper 49, per Lord Ardmillan, p. 58.

At advising

LORD WELLWOOD-This appeal arises out of a prosecution under the Day Trespass Act (2 and 3 Will. IV. c. 68), which was brought before the Sheriff at Fort-William. The complaint bears to be be brought under the Summary Jurisdiction (Scotland) Acts 1864 and 1881 and the Criminal Procedure (Scotland) Act 1887.

In the body of the complaint the prosecutor, after setting forth the trespass complained of, concludes thus-"Whereby the said Alexander M'Cowan is liable to forfeit and pay a sum of money not exceeding £2 and costs of conviction, and in default of payment thereof at the time appointed, to be imprisoned, with or without hard labour, for any time not exceeding two calendar months unless payment be sooner made." And in the prayer he prays the Sheriff to convict the appellant, and adjudge him "to suffer the penalties provided by the Act."

The Sheriff convicted and imposed a

modified penalty of £1, with £1, 5s. of expenses, and in default of immediate payment sentenced the appellant to be imprisoned for ten days.

The appellant does not maintain that the term of imprisonment thus alternatively imposed was not within the Sheriff's powers; but he maintains that the conviction must be set aside because in the complaint the prosecutor names a maximum term of imprisonment of two calendar months, which could not be competently imposed having regard to the provisions of the Summary Jurisdiction Act of 1881, under which the maximum period of imprisonment which can now be imposed where the fine imposed exceeds £1 but does not exceed £5, is one month and not two.

The same objection was stated in the recent case of MacLeod v. Tarras, decided in this Court on 24th October 1892, the Court being composed of Lord Young, Lord M'Laren, and myself. We held that the objection was not well founded, our view being that the Act of 1881, being a general Act applicable indiscriminately all summary prosecutions brought under the Summary Jurisdiction Acts, it was not necessary that its provisions should be specially set forth in the complaint, and that if any reference to it were necessary it was sufficient that the magistrate's attention should be drawn to it by the heading to the complaint, which apprised him that in passing sentence he must have regard to the provisions of that statute modifying the sentence of imprisonment in proportion to the amount of the fine imposed."

I am of opinion that sufficient grounds have not been shown for going back upon our decision in MacLeod v. Tarras which is directly in point. But in view of the doubts expressed during the discussion I cannot say that I hold to my former opinion without some hesitation.

The objection is technical; the Sheriff has not been misled; he has imposed a competent sentence of imprisonment. The objection is not the less important and difficult on that account. If it is wellfounded the conviction must be quashed; but in the absence of any prejudice to the appellant this is not a result to be readily arrived at.

The question is not whether the form of complaint adopted is the best, but whether it is so radically defective that the accused, who has suffered no prejudice, and who took no objection to the Court below, is entitled to go free.

It must be admitted that on first statement it seems a startling proposition that it is competent for a prosecutor to pray for the imposition of a penalty which cannot legally be imposed, but a little consideration shows that the difficulty is more apparent than real.

The form of complaint in Schedule A of the Summary Procedure Act 1864, applicable to statutory complaints, is framed on the footing that the penalty and alternative to be set forth in a statutory complaint are those prescribed by the statute

was correctly done. The Day Trespass Act has not been repealed. But the Summary Jurisdiction Act of 1881 provides that when in enforcing a statute such as the Day Trespass Act, the prosecution is brought under the Summary Jurisdiction Acts, and a warrant of imprisonment is granted in default of payment of a penalty, a certain scale of periods of imprisonment shall be observed proportioned to the penalty inflicted, and the maximum period of imprisonment competent for a £2 fine under the Act of 1881 is one month and not two.

Before condemning the mode of libelling here adopted it is necessary to consider what is the alternative, and what would be the logical results of our entertaining the objection. Is it proposed to insert ad longum in the body of the complaint all the alternatives which are open to the magistrate? I hardly think that this course will be seriously suggested. But a partial insertion would be worse than none. Suppose the prosecutor had here inserted the maximum period of imprisonment (one month) authorised by the Act of 1881 for a £2 fine, the complaint would at once have been objected to as misleading on the ground that that might lead the Sheriff to think that whatever penalty he imposed he might in default of payment give a sentence of imprisonment of one month, whereas according to the scale of the Act of 1881 he is bound to reduce the sentence of imprisonment in proportion to the fine imposed.

If insertion ad longum is impracticable and partial insertion is insufficient, the only other course is to make a general reference to the periods of imprisonment competent under the Act of 1881. Such a reference would no doubt draw the magistrate's attention to that statute; but that is already done sufficiently, I think I shall show according to practice, by the heading to the complaint.

According to the decisions, it is as essential to the soundness of a statutory complaint that all the alternative punishments open to the magistrate should be set forth in the complaint, as that those specified should be correctly stated and competent. But where an alternative punishment or modification is introduced by a general statute and not by the statute said to have been contravened, it has not, so far as I know, been the practice to specify the alternative or modification in the body or prayer of the complaint.

An examination of sections 18 and 19 and Schedule K of the Summary Procedure Act of 1864, and the Summary Jurisdiction Act of 1881, furnishes a number of examples. For instance, some statutes authorise the imposition of penalties, but do not expressly authorise imprisonment in default of payment, while at the same time they do not exclude it. But section 18, subdivision 6, of the Act 1864, and Schedule K, sub-division 6, provide that the judge, if he considers it inexpedient to order execution by poinding and sale, may order immediate imprisonment. Again, section 19 autho