special definition of the word 'county.' That word is defined by the 78th section as including all burghs and places within the county or stewartry not being a burgh or town which has a Police Act or an establishment of police' under one of the General Police Acts then in force. It is also not unimportant to observe that under the 29th section the police assessment is to be laid on according to the valuation rolls, thus recognising that both the county valuation roll and the burgh valuation roll may require to be used. In the County General Assessment Act, on the other hand, the valuation roll alone is referred to.

"I am therefore of opinion that commissioners of supply had no power to assess for the county general assessment lands and heritages within a parliamentary burgh.

"I am confirmed in that view by the provisions of the Local Government Act 1889.

"The case of Oban differs from that of Galashiels in that the latter has a police establishment, and therefore is not represented on the county council and does not contribute to the county fund, while the former (having a population of under 7000) is represented upon the county council, has the administration of its Police and of the Contagious Diseases (Animals) Acts vested in the county council, and contributes to the county fund.

"No doubt it would be more easy to arrive at the conclusion that the county council had the right of direct assessment upon lands within a burgh which was represented upon the county council than within a burgh which had no representation, but I think that it is clear that the Act did not contemplate any such direct assessment, except in the case of police burghs, and of burghs having a population of more than 7000 but which have no separate police force. Such burghs are represented upon the council, but are not subject to the provisions as to contribution to the county fund, the assessments continuing to be levied directly by the county council.

"The position under the act of a parliamentary burgh with a population of less than 7000 is as follows. By section 8 such a burgh is entitled to be represented on the county council, and by sections 13 and 14 the administration of the Police and of the Contagious Diseases (Animals) Acts is transferred to the county council. By section 60, sub-section 3, it is provided that every such burgh shall contribute to the county fund in aid of the expenditure upon Police and the Contagious Diseases Acts, and by sub-section 4 of the same section, it is provided that the amount of the contribution shall not be assessed by the county council upon lands and heritages within the burgh, but shall be paid by the town council out of the police assessment or other assessment levied in the burgh, or out of the common good. In contradistinction to that enactment, it is provided by sub-section 5 of the same

section that police burghs with a population of less than 7000 shall be assessed by the county council for Police and the Contagious Diseases Acts in the same manner as other lands within the county. Finally, by the 66th section it is provided that the county council shall annually send a requisition to the town council of a burgh liable in contribution requiring them to pay the amount of the contribution.

"Now, it seems to me that these provisions were intended to deal exhaustively with the relationship between parliamentary burghs with a population of less than 7000, and the county council, and that it was not contemplated that the council should in addition have the power of direct assessment within such burghs. If, in addition to the contribution to the county fund which such burghs were bound to make, the council, as coming in place of the commissioners of supply, had power to levy the county general assessment within the burgh, I think that in order to make the scheme of the statute clear and complete, it would have been necessary to make special provision in regard to the

matter.

"I shall therefore give decree in terms of the conclusions of the summons with expenses.'

The defenders reclaimed, and arguedThere were two questions in this ease, (1) Whether the county general assessment under the Act of 1868 was properly levied on individual proprietors in the burgh of Oban along with the proprietors in the landward portion of the county, and (2) if it was assumed that the county general assessment had been properly levied on lands and heritages in Oban under the Act of 1868, did the Local Government Act 1889 take away that right from the commissioners of supply and the defenders who came in their place? The Lord Ordinary had decided both points against the defenders. On both questions his judgment was erroneous. As regards (1) when rogue money was imposed, Oban fell under neither of the exceptions stated in the Act of 1839, and therefore was rightly assessed for rogue money. The Act of 1868 introduced the county general assessment in lieu of rogue money, and unless there was something in the Act which specially excluded Oban from its application, Oban must be held to be liable for county general assessment. The Lord Ordinary held that Oban was excluded because the assessment was to be imposed "according to the yearly value thereof as established by the valuation roll in force for the year of assessment" which he interpreted to mean "the valuation roll for the county." But there was no good reason for inserting "for the county" after "the valuation roll.' The reference to the valuation roll was merely to show the basis of assessment. It would be a strange method of exempting a burgh from assessment by merely making in an Act an indirect reference to a valuation roll for the mode in which an assessment was to be levied. If "valuation roll" was understood to mean the valua

Commrs.

9, 1894

the

tion roll made up for the county under the Valuation of Lands Act 1854, the railways would be exempted also from assessment, because a separate valuation roll was made up for them. This was absurd. "Valuation roll" in the Act of 1868 meant the valuation roll in which the lands and heritages assessed were entered. If the lands were within burgh, then it was burgh valuation roll which was meant; if the lands were situated in the landward part of the county, then it was the valuation roll for the county which was meant. The history of the tax showed that the interpretation of the defenders was the proper one. De facto, after 1868 down to the passing of the Act of 1889 Oban had paid her share of the county general assessment. Rogue money stood on a distinct footing from police assessment, and since the passing of the Police Act of 1857 rogue money and police assessment had come to be levied as two distinct things. In 1868 the county general assessment had been imposed, not in lieu of police assessment, but in lieu of rogue money. (2) The Local Government Act 1889 did not take away from the county council the right of levying county general assessment from a burgh such as Oban. By section 11 the whole powers of the commissioners of supply were vested in the county council subject to the provisions of the Act. There was no provision of the Act which in any way modified the powers of the county council with regard to the county general assessment. Indeed, section 12, while it repealed part of the County General Assessment Act, 1868, left unrepealed the assessing clause, and there was thus clear evidence that under the Act of 1889 the county council were to have the same powers as the commissioners of supply in imposing the assessment. The Oban Burgh Act of 1881 merely extended the boundaries of the burgh.

Argued for pursuers-The judgment of the Lord Ordinary was well founded. (1) Under the Act of 1868 the commissioners of supply had no legal right to assess lands and heritages within the burgh of Oban for county general assessment. The county general assessment was to be imposed under that Act upon all lands and heritages within the county according to the yearly value thereof as established by the valuation roll for the year in which such assessment is imposed." The roll prepared by the Commissioners of Supply under the Act of 1854 was the valuation roll for the county. This was the roll referred to in the Act of 1868 and the burgh of Oban not being included in this roll was excluded from the assessment by the direct terms of the Act. (2) If the Commissioners of Supply had a legal right to impose the county general assessment on Oban before the passing of the Local Government Act of 1889, after the passing of that Act the power ceased as it was inconsistent with the provisions of that Act. This was shown conclusively by the arguments used by the Lord Ordinary. The county general assessments were levied for almost the same purposes as the police assessments,

and under the Oban Burgh Act of 1881 it was provided that no double assessment for the same purposes should be levied within the burgh. The interlocutor of the Lord Ordinary should be affirmed.

At advising

LORD JUSTICE-CLERK--By the 11th section of the Local Government Act of 1889 there are vested in the county council "the whole powers and duties of the commissioners of supply," except as otherwise mentioned in the Act. The power of the commissioners of supply as regards assessment was fixed by the Rogue Money Acts of 1832 and 1839, by which they were empowered to assess for rogue money and for constabulary expenses, and by the County General Assessment Act of 1868, by which a county general assessment in lieu of rogue money was established. Under the former Acts the commissioners of supply were entitled to assess all lands and heritages within the county, with the exception under section 3 of the Act of 1839 of royal burghs or any burgh or town having a Police Act or having taken advantage of an Act of Will. IV. enabling burghs to establish a general system of police. The burgh of Oban does not fall within either of these exceptions.

If the burgh of Oban, not falling under either of the above exceptions, was simply a burgh and nothing else, no question could be raised. There could be no doubt that the county authority would have the power, under the old Acts giving authority to the commissioners of supply, to assess on the lands and heritages within the burgh. But the burgh of Oban maintains that being a parliamentary burgh the county council has no power to levy on it the general county assessment. The burgh maintains that there was no power of assessment under the Act of 1868, and separatim that if there was, it was not transferred to the new county council by the Act of 1889. The argument upon which it is maintained that there was no power to assess under the Act of 1868 is one which depends upon implication only. By the Act of 1868 power is given to the commissioners of supply to impose an assessment to be called the "general county assessment, upon all lands and heritages within such county, according to the yearly value thereof as established by the valuation roll for the year (commencing at Whitsunday) in which such assessment is imposed." The first question here is what is included in the words "within the county," and that must be determined by the definitions and exceptions in the previous statutes. Now, the only parts of the area of a county which have been excluded from the operation of rogue money assessment by the previous statutes were royal burghs and burghs having a Police Act or having been brought under the Police Act of Will. IV. Therefore Oban, which is not in any of these categories, was within the county for assessment prior to 1868. Therefore the words "within the county" in the Act of 1868 must include Oban, unless by some other words of that Act it must be held to be

excluded. There is no expression indicating that the word "county" means anything different from what it bore in the previous Act. There are certainly no enacting words to that effect. And therefore, as I said before, it must be by implication that the position of such a burgh as Oban is to be changed by the Act of 1868 as regards liability to assessment. Such an implication, by which an area of assessment is to be held to be altered, would require to be clear and unambiguous. In this particular case we have this somewhat extraordinary state of matters, that from the date of the passing of the Act of 1868 down to the passing of the Local Government Act of 1889, it never seems to have occurred to any ratepayer in Oban, or indeed to any ratepayer in any similar burgh, that his liability to contribute to the county expenses was abolished by that Act. It can therefore scarcely be a very clear implication. From the argument addressed to us and from the Lord Ordinary's note it appears that the implication is to be derived from a consideration of that part of the enactment which relates to the mode in which the assessment is to be imposed. The Act directs that the assessment is to be levied according to the yearly value as "established by the valuation roll for the year." It is the contention of the pursuer-and the Lord Ordinary has given effect to the contention-that as the word "roll" is given in the singular, it is the same as if it had said valuation roll for the county only, and that therefore there can be no power to assess in any area in which there is a separate valuation roll under the Valuation Act. I cannot concur in that view. It appears to me that if at the time of the passing of the Act of 1868, the authority which assessed for rogue money did so over burghs which were not exempted under the previous Acts authorising the levying of rogue money, as that authority undoubtedly did, that the new authority must in the absence of express enactment to the contrary assess on the same burghs, and that if the order is given that the new authority is to use the valuation roll as the basis of assessment, then it must be the roll applicable to the burgh in the case of a burgh which previously formed part of the county for rogue money assessment. They are to obtain their basis from the valuation roll, and that must be the roll of the county or the roll of the burgh respectively. I should have been of that opinion upon the Act of 1868 alone, but I am confirmed in that opinion by what I find in the Valuation Act itself. For it is enacted by section 40--[His Lordship read the clause.] That enactment clearly empowers the commissioners to assess on the statutory valuation. But as by the Valuation Act the parliamentary burgh roll was made up separately they could only complete their roll on the valuation by using the burgh roll to ascertain the value of those subjects whose owners or occupiers were liable to contribute to the rogue money, but which were within the burgh. If it be contended that the directions of the

Valuation Act that a separate roll for a parliamentary burgh should be made up, excluded the assessing by the commissioners within the burgh, that is I think conclusively answered by the latter part of clause 41 of the Valuation Act, which declares that nothing contained in this Act shall exempt from or render liable to assessment any person or property not previously exempt from or liable to assessment. Therefore the commissioners were bound to assess those in burghs who had been assessed for rogue money before as not having been previously exempt, and were in doing so entitled to proceed on the valuation under the Valuation Act. If they did so, they must in the case of a burgh have done so on the valuation roll of the burgh.

If this view be sound, I am unable to find anything in the Local Government Act of 1889 which alters the position of such a burgh as Oban in regard to the county general assessment which came in lieu of the rogue money. The powers and duties of the county council are those of the commissioners of supply, and the Act while repealing some of the clauses of the General Assessment Act of 1868, by so doing expressly leaves in force that part of the Act by which taking it along with the Rogue Money Acts the area of assessment is fixed and the power to assess conferred.

I have therefore come to the conclusion that the interlocutor of the Lord Ordinary should be altered and the defenders assoilzied from the conclusions of the action.

LORD YOUNG concurred.

LORD RUTHERFURD CLARK-I am of the same opinion.

LORD TRAYNER - I concur. The view which I take of this case may be briefly stated.

was

Under the Act of 1857 the Commissioners of Supply were authorised to levy an assessment for rogue money and other purposes on "the whole county," and "county declared to include, inter alia, “all burghs and places within the county not being a burgh or town which has a Police Act, or an establishment of police" under the provisions of certain recited Acts. Oban being within the county, and not having a Police Act or establishment of police, was liable to be assessed for rogue money, and it was so assessed. By the Act of 1868 rogue money was abolished, and in lieu thereof the Commissioners of Supply were authorised (sec. 4) to levy a county general assessment upon all lands and heritages within the county according to the value thereof as appearing on the valuation roll for the year, but that only (sec. 10) on lands and heritages then liable to be assessed for rogue money. When the Act of 1868 passed Oban was liable for rogue money, and was therefore liable under that statute for the county general assessment authorised to be levied in lieu of rogue money. The county general assessment was accordingly imposed on lands and heritages in Oban down to the passing of the Local Government Act of 1889, by which the whole

Commr

powers and duties of the Commissioners of Supply were vested in the County Council. The latter body, the defenders in this case, have imposed the county general assessment on lands and heritages in Oban, and the pursuers' purpose in bringing this action is to have it declared that the defenders are not entitled to do so. I think they are. They are only doing what the Commissioners of Supply did without complaint. They are exercising one of the powers and fulfilling one of the duties of the Commissioners of Supply, and therefore seem to me to be acting within their statutory right. The view that the powers of the County Council are restricted by the direction that they are to assess according to the value appearing in the valuation roll and not valuation rolls appears to me untenable. The valuation roll referred to is the valuation roll in which the subjects assessed are appropriately entered.

The Court recalled the interlocutor of the Lord Ordinary and assoilzied the defenders.

Counsel for the Pursuers-Kincaid Mackenzie-Craigie. Agents-Macpherson & Mackay, W.S.

Counsel for the Defenders - SolicitorGeneral Asher, Q.C.-Graham Stewart. Agents-M'Neill & Sime, W.S.

HIGH COURT OF JUSTICIARY.

Monday, March 5.

(Before the Lord Justice-Clerk, Lord M'Laren, and Lord Rutherfurd Clark.) PATTERSON v. MACDONALD. Justiciary Cases Publie - Houses Acts Amendment Act 1862 (25 and 26 Vict. cap. 35)-Relevancy-" Or about that time."

A hotel-keeper was charged with an offence against the laws for the regulation of public-houses in Scotland, “in so far as upon Sunday the 31st day of December 1893 years, or about that time" he "did open his hotel for the sale of exciseable liquors, and sell or give out therefrom one bottle of whiskey" to a person named, "contrary to the terms and conditions of his certificate."

Held that the complaint was irrelevant, in respect that the words "or about that time" must be taken as including the days immediately before and after the Sunday specified, and therefore as including hours on Saturday and Monday when the sale would not have been an offence.

John Patterson, the holder of a certificate for the sale of exciseable liquors at the Waverley Hotel, High Street, Hawick, was charged in the Police Court of the Burgh of Hawick with a contravention of the Public-Houses Acts Amendment Act 1862. The complaint

set forth that Patterson had "been guilty of an offence against the laws for the regulation of public-houses in Scotland, in so far as upon Sunday the 31st day of December 1893 years, or about that time, the said accused did open his said hotel for the sale of exciseable liquors, and did sell or give out therefrom one bottle of whiskey to John Jamieson . . . contrary to the terms and conditions of his said certificate."

Patterson was convicted of the offence charged "in respect that he did allow his hotel to be opened and one bottle to be given out therefrom, all as libelled."

In an appeal against this conviction on a stated case one of the questions of law submitted to the Court was whether an offence under the statute was relevantly libelled in the above complaint.

Argued for the appellant-The charge set forth that the sale took place on Sunday or about that time, and therefore included a period of time extending beyond the limits of Sunday. The extension could only be to Saturday and Monday immediately preceding and following, and as the sale might have been during the lawful hours on these days the libel did not neces sarily set forth an offence-Drummond v. Latham, 3 White, 166, 29 S.L.R. 481.

Argued for the respondent-If the complaint had merely said "on Sunday 31st," then by the Criminal Procedure Act of 1887 the words "or about that time" would have been implied; the insertion of the words could not therefore vitiate the libel, and they must be read as referring to the prohibited hours on Saturday night or Monday morning-- Baird v. Rose, 5 Irvine, 200. Selling during unlawful hours is the substance of the charge, and the particular day is not essential. In any case, the time is limited by the words "contrary to the terms and conditions of his certificate." It is not necessary, when there is a reference to the certificate, to set forth specifically that the person to whom the liquor was sold was not a bona fide traveller or resident in the house, and on the same principle the reference to the certificate must be held as limiting the time to prohibited hours. [By the COURT-The fact that the sale is to a bona fide traveller or to a person resident in the house is a defence, and need not be set forth in the libel.]

At advising

LORD M'LAREN--The question is, whether in a charge of contravention of certificate, in respect that the accused, on a Sunday, did sell and give out exciseable liquors, the addition of the words "or about that time" affects the relevancy of the libel?

It is objected that the libel is irrelevant because it charges, not the precise offence of selling on Sunday, but that the accused sold liquor "about that time." It is answered that the words "about that time," if not there, would be implied by the Criminal Procedure Act of 1887, and that their insertion cannot have a destructive effect. No doubt under the statute of 1887 it would be competent under a charge of selling liquor upon a

particular Sunday to prove that the offence was committed upon some other Sunday, within the latitude as to time allowed by law to the prosecutor. But I cannot take that to be the effect of the words as expressed in this libel. They must mean that the accused sold the liquor on the Sunday in question, or on some part of the Saturday preceding or Monday following, without defining what part of Saturday or Monday. Now, it is not an offence to sell liquor at any time on Saturday or Monday. Had the prosecutor charged a sale within the prohibited hours on Saturday or Monday, it may be that in that case the words "or about that time" would have included the prohibited hours of Sunday. But the converse does not hold good. As the words stand, the extension of time must necessarily apply to any hours on the days nearest, and thus includes hours when it is no offence to sell liquor.

The objection is certainly very critical, and if it had come before us by way of suspension I should have had difficulty in sustaining it. But here we are called upon to deal with it in answer to a specific question put to us on a case stated for our opinion, and we have therefore no alternative.

The LORD JUSTICE - CLERK and LORD RUTHERFURD CLARK concurred.

(Before the Lord Justice - Clerk, Lord M'Laren, and Lord Rutherfurd Clark.) MACDONALD v. MATHESON AND ROSS.

Justiciary Cases-Day Trespass Act (2 and 3 Will. IV. c. 68), sec. 1–Relevancy—Locus -"At or near.

Donald Macdonald, fisherman in the parish of Uig, Lewis, was charged in the Sheriff Court at Stornoway, at the instance of Lady Matheson of Lewis Castle, Stornoway, with the concur rence of the procurator - fiscal of the Court, with a contravention of section 1 of the Day Trespass Act. The complaint set forth that Macdonald "did, on the 20th day of November 1893, trespass in the day-time . . . at or near a part of the Morsgail Deer Forest, in the parish of Uig aforesaid, called Carlish-a-Vhor, in pursuit of game." Macdonald, who was found guilty of the offence charged, brought the conviction under the review of the High Court by bill of suspension.

The Court suspended the convic

tion, on the ground that the description of the locus as "at or near" the lands in question did not relevantly libel the statutory offence of entering or being upon the lands.

Arthur v. Peebles, 3 Coup. 310.

Counsel for the Complainer-Davidson. Agent-John Elder, S.S.C.

Counsel for the Respondents - Orr. Agents-Stuart & Stuart, W.S.

Monday, March 5.

(Before the Lord Justice - Clerk, Lord M'Laren, and Lord Rutherfurd Clark.) LAMB v. BROWN.

Justiciary Cases Sale of Exciseable Liquors at Public Fair-Sec. 8 of Home Drummond Act 1828 (9 Geo. IV. c. 58)Sec. 6 of Public-Houses Acts Amendment Act 1862 (25 and 26 Vict. c. 35).

The holder of a certificate for the sale of exciseable liquors in premises in the parish where a public fair or market is held, or in the adjoining parish, is entitled, under section 8 of the Home Drummond Act 1828, to sell exciseable liquors at such public fair or market without obtaining a special permission under section of the Public Houses Acts Amendment Act of 1862.

John Brown, the respondent in the present appeal, a licensed publican occupying premises in the parish of Newhills, in the county of Aberdeen, was charged in the Aberdeen Police Court with an offence under the Public-Houses Statute of 182 The offence alleged was that he had sold exciseable liquors from a tent occupied by him at the public fair or market called St Luke's Fair, and usually known as the "Aulton Market," without having obtained a special permission in terms of section 6 of the statute libelled. The "Aulton Market" is held in the parish of Old Machar, within the burgh of Aberdeen, a parish immediately adjoining that in which the respondent's licensed premises were situated. The tent from which the sale took place was within the limits of the market stance. The complaint was dismissed by the magis trate on the ground that the respondent was entitled under section 8 of the Home Drummond Act (9 Geo. IV. c. 58) to sell liquor at a public fair, either in the parish where his licensed premises were situated or in an adjoining parish, without a special permission, and that this right was not affected by section 6 of the Act of 1862.

The section of the Home Drummond Act (sec. S) referred to is as follows-"Provided always that nothing in this Act contained shall be construed to prohibit any person who shall have obtained such certificate from selling ale, beer, spirits, wines or other exciseable liquors in boats or vessels moored in rivers at any time, or in houses, booths, or other places at the time ard