whether a case was going to be made as to the habits of Dr Mackay, or whether other witnesses were in attendance to speak as to his conduct during the time, or to elicit whether these questions were put in the bona fide conduct of the case or were merely put for the purposes of annoyance.

I shall certainly not assume that the allowance of the questions would have elicited anything to the prejudice of the witness. There is nothing whatever in the proceedings to suggest that it would have done so, and we approach the case with no other information than that special questions were proposed by the agent of the accused and disallowed by the SheriffSubstitute.

In the absence of any explanation of the special reasons for disallowing these questions, and the questions (if put bona fide, and with the purpose of following them up) being quite legitimate, I am of opinion that the Sheriff-Substitute was in error in disallowing them.

If

are

There remains for consideration how far the rejection of this evidence may affect the result of the trial, and whether it vitiates the conviction and sentence. In civil cases it is generally held that if the judge's ruling disallowing evidence be reversed, the verdict necessarily falls. the judge admits evidence which the Court of review may hold to be irrelevant or objectionable on other grounds, the Court may take into consideration whether the evidence might have affected the verdict of the jury. But where a question is disallowed and the Court has no means of knowing what would have been the answer to that question, it is impossible to say whether the unknown element of evidence ought or ought not to have affected the verdict. Here the circumstances peculiar. The assault did not arise out of a quarrel, but as we are told, in consequence of Falconer's objection to the vaccination of his child and his endeavour to prevent the order of the local authority being carried out. I need not say that no medical man has any right to perform an operation, such as vaccination, on a child without the parents' consent. All that can be done is to bring a parent who refuses his consent before the proper court on a charge of disobedience to the statute. The difference between the doctor and the child's father being of this nature, can we assume that questions as to the doctor's steadiness and sobriety are irrelevant to the inquiry, or that the answers to such questions might not have thrown light on the question, who began the assault, and whether the assault was provoked?

I have not read the notes of evidence, because we have held that they are not competently before the Court, and I am quite unable to form any opinion as to how the answer to the questions might have affected the conclusion to which the SheriffSubstitute came. I may imagine that all the probabilities of the case are against the theory of the defence. I have no conception that any just imputation can be made against Dr Mackay, but as a purely legal

question I am unable to say that the admission of evidence might not possibly have affected the conclusion arrived at by the Sheriff-Substitute, and therefore I am of opinion not only that the 2nd and 3rd questions ought to have been allowed, but that the conviction must be set aside.

LORD WELLWOOD-I am of the same opinion. I think the Sheriff-Substitute, upon the case stated, ought to have allowed the 2nd and 3rd questions to be put. I entirely agree with Lord M'Laren that every judge has the right to refuse to allow a question, otherwise competent, to be put to a witness if he is satisfied that it is put at haphazard and in order to insult and annoy the witness. It is necessary for the protection of witnesses and the decent conduct of judicial business that this power should exist. There are indications here which lead me to think that such were the grounds on which the Sheriff-Substitute disallowed the 2nd and 3rd questions, and if he had said so I should not have been for interfering with his exercise of his discretion. But he has not told us so, and we only know that the questions were put and disallowed.

Now, Dr Mackay was the first witness called, and therefore the Sheriff-Substitute had no further information as to the facts of the case than those disclosed in the earlier part of Dr Mackay's evidence.

Dr Mackay denied that he was drunk on the day in question, and the natural course was to test the accuracy of his statement by cross-examination, and if the question were put bona fide, the agent for the accused was entitled to ask what quantity of drink he had had during that day.

Now, the Judge might have asked the agent whether he proposed to lead evidence to prove that Dr Mackay was under the influence of drink, and if the agent had replied in the negative, then the Judge might have been justified in refusing to allow the question to be put.

But here there is nothing to justify us in holding that the Judge was justified in opposing the cross-examination.

That being so, the only question is, was the evidence so material as to justify us in quashing the conviction, and on that point I have nothing to add to what Lord M'Laren has said.

We are not in a position to judge what the decision of the Sheriff-Substitute would have been if the question had been put and answered. In all probability Dr Mackay would have said he had not drank to excess. But we cannot tell, and we have therefore no alternative but to say the Sheriff-Substitute was wrong in refusing to allow the second and third questions.

LORD JUSTICE-CLERK--I agree with everything that has been said by your Lordships. I came to the conclusion independently that it was very likely that the questions put to Dr Mackay in cross-examination were simply meant to annoy. But I have now looked at the notes of the evidence and they confirm the view that the Sheriff's

reason for stopping the cross-examination was that he thought it was based on nothing.

We must deal, however, with the case as stated. The Sheriff seems to have thought that by sending us the notes of the evidence he made them part of the case, and that the Court could go into the evidence. We cannot do anything of that kind; the Sheriff is the sole judge as to the evidence. We must have stated to us not the evidence given but the facts found to be proved, and we can only consider whether the Sheriff has been right in law in the conclusion he drew from them.

There is a great distinction to be drawn between questions put to throw dirt, and those which relate to relevant matter in the personal history of the witness. Here we are much more careful to protect the witness than in other parts of the United Kingdom, and we are right in not allowing vague suggestions against the character of a witness by a series of insulting questions. If the Sheriff was satisfied that questions were being put for the sake of insult, and which were not to be backed up by any evidence, I think he would have been quite right to refuse to allow them to be put.

But we do not know that; we must take the case as it stands, and the question is, was he right in disallowing the questions as incompetent. It must be remembered we are not here dealing with questions put to a witness vaguely to blacken his character. The questions related to the time when the alleged assault was committed; they went to the essence of the case. There could be no reasonable ground for disallowing them at the stage stated other than that the point of the attack was to insult the witness; but that is not before us, the question being simply whether it was a competent question or one which should have been disallowed.

I think the question of law must be answered in the negative.

The Court set aside the conviction.

Counsel for Appellant-Clyde. AgentCharles George, S.S.C.

Counsel for Respondent Agent-Crown Agent.

Monday, October 30.

Strachan.

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

CUMMINGS v. WOOD.

Justiciary Cases-Process-Competency of Suspension-Civil or Criminal - Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), secs. 13, 61, and 67-Summary Procedure Act 1864 (27 and 28 Vict. cap. 53), sec. 28.

Section 13 of the Coal Mines Regulation Act 1887, provides (sub-sec. 4)—"If the owner, agent, or manager of the mine desires the removal of a check

weigher on the ground that the checkweigher has impeded or interrupted the working of the mine, or interfered with the weighing or with any of the workmen, or with the management of the mine, . . . he may complain to a court of summary jurisdiction, who, if of opinion that the owner, agent, or manager shows sufficient prima facie ground for the removal of the checkweigher, shall call on the check-weigher to show cause against his removal." (Sub-sec. 5)-"On the hearing of the case the Court shall hear the parties, and if they think that at the hearing sufficient ground is shown by the owner, agent, or manager to justify the removal of the check-weigher, shall make a summary order for his removal, and the check-weigher shall thereupon be removed." . . . Section 61 (2) provides-"Proceedings for the removal of a check-weigher shall be deemed to be a matter on which a court of summary jurisdiction has authority by law to make an order in pursuance of the Summary Jurisdiction Acts, and summary orders under this Act may be made on complaint before a court of summary jurisdiction in manner provided by the Summary Jurisdiction Acts." Section 67 relates to summary proceedings for offences in Scotland.

A check-weigher brought a suspension of a sentence of removal pronounced against him in a petition at the instance of the colliery owners, charging him with a contravention of section 13.

Held that the High Court had no jurisdiction to review the judgment, because the proceedings had only civil effects and were not of a criminal nature within the meaning of section

28 of the Summary Procedure Act 1864. A petition under the Summary Jurisdiction (Scotland) Acts 1864 and 1881, the Criminal Procedure (Scotland) Act 1887, and the Coal Mines Regulation Act 1887, was presented to the Sheriff of Lanarkshire at the instance of James Wood, Limited, Westrigg Colliery, Westcraigs, Lanarkshire, stating "that Robert Cummings, residing in Harthill, parish of Shotts, was on 15th June last and for some time prior thereto, and still is, engaged as check-weigher at the petitioner's colliery at Westrigg, parish of Shotts. That the said Robert Cuminings has been guilty of a contravention of the Coal Mines Regulation Act 1887, and particularly of section 13 thereof, in so far as at said colliery he did on various dates prior to 29th June current, interfere with William Lees, Robert Pinkerton, James M'Kim, and others, all miners or workmen employed at said colliery, and impede and interrupt the working of the mine and the management thereof, all to the detriment of the said petitioners. That the petitioners are desirous of having the said Robert Cummings removed from the position of check-weigher at said colliery," and craving warrant for his removal from the position of checkweigher at the petitioner's colliery.

On 4th July 1893 the Sheriff-Substitute (MAIR) at Airdrie after a proof granted warrant as craved. The conviction, after stating the names of the witnesses examined in support of the complaint, and of the witnesses examined in exculpation, proceeded "The Sheriff-Substitute, in respect of the evidence adduced, finds the complaint proved: Therefore grants warrant for the removal of Robert Cummings, complained upon, from the position of check-weigher at the petitioner's colliery at Westrigg, in the parish of Shotts, in terms of the petition, and finds the said Robert Cummings liable in £2, 2s. of expenses to the petitioner, and failing immediate payment thereof, grants warrant for the recovery of the said sum by poinding of his goods and effects, and summary sale thereof, in terms of law, and appoints a report of such poinding and sale to be made within eight days thereafter."

Robert Cummings brought a suspension on the following grounds-"1. The document which libels the contravention or charge deviates so widely from the statutory and usual form as substantially to prejudice the complainer. In particular(1) The respondents proceed against the complainer by petition, whereas the Summary Jurisdiction Acts and the Coal Mines Regulation Act 1887 enact that proceedings shall be taken by way of complaint. (2) The petition contains no statement of the penalty which follows the alleged contravention. (3) The petition contains no craving for conviction. The latitude taken in libelling the time of the alleged contravention is excessive, and to the prejudice of the complainer. 3. The modus of the charge is vague, indefinite, wanting in specification, and prejudicial to the complainer. 4. The said conviction and sentence ought to be set aside, inasmuch as (1) it fails to convict of the contravention charged; (2) it fails to set forth what was proved by the evidence led; (3) it fails to specify a period for the complainer's removal."

2.

In the course of the argument the point was raised whether the Court had jurisdiction to entertain the appeal, seeing that the Coal Mines Regulation Act did not authorise a sentence of imprisonment to follow on non-compliance with the convietion and sentence of the Sheriff.

At advising

LORD JUSTICE-CLERK--Having considered the statements in this bill of suspension, I am clearly of opinion that there is here no criminal matter at all falling under section 28 of the Summary Procedure Act 1864; and if so, although it may have been dealt with by a court of summary jurisdiction, it must be held to be civil. That section was introduced for the purpose of defining the cases in which summary jurisdiction shall be of a criminal nature, and provides"In all proceedings by way of complaint instituted in Scotland, in virtue of any such statutes as are herein before mentioned, the jurisdiction shall be deemed and taken to be of a criminal nature where, in

pursuance of a conviction or judgment upon such complaint, or as part of such conviction and judgment, the Court shall be required or shall be authorised to pronounce sentence of imprisonment against the respondent, or shall be authorised or required, in case of default of payment or recovery of a penalty or expenses, or in case of disobedience to their order, to grant warrant for the imprisonment of the respondent for a period limited to a certain time, at the expiration of which he shall be entitled to liberation; and in all other proceedings instituted by way of complaint under the authority of any Act of Parliament, the jurisdiction shall be held to be civil.'

Nothing could be more clear than that definition of what shall be held to be criminal. It is equally clear that we have here no such case as is referred to in the first part of the section. Acheck-weigher is appointed by the miners, to check the weights of the output in the interests of the miners, and the Legislature has enacted that he shall confine himself to that duty and shall not interfere with the workmen, nor impede and interrupt the working and management of the mine. In case of any interference by him, the owner or his agent may complain to the sheriff, and the sheriff after investigation is entitled to order his removal and find him liable in expenses, but he has no power to order his imprisonment in default of payment of the expenses, or to say that imprisonment shall follow on his disobedience to the order.

In this complaint the procedure of the Summary Procedure Act was properly applied in accordance with authority given in the Coal Mines Regulation Act. But the nature of the case is not such as is defined in the first part of section 28 of the Summary Procedure Act. It must therefore fall under the latter half of that section. I therefore think the proceedings here are incompetent, and that the remedy, if any, should have been sought in the civil court.

LORD M'LAREN-It is plain that when a sheriff or magistrate is considering a complaint against a check-weigher under the Coal Mines Regulation Acts, he is only considering the conduct of the latter ad civilem effectum, because the only consequence which may follow his consideration of the complaint is the dissolution of the contract between the check-weigher and his employers. That being so, it follows that this Court has no power to review the Sheriff's award, and the appeal must be to a court of civil jurisdiction.

I should have arrived at this conclusion independently of the definition contained in the 28th section of the Summary Procedure Act 1864, but having regard to the terms of that section, the matter is too clear for argument.

It will be in the recollection of your Lordships that before the passing of this Act there was much controversy as to the court to which appeals from summary pro

v. Wood

1893

secutions were to be taken, and the controversy turned upon whether the quality of jurisdiction depended on the nature of the act as being a crime or only malum prohibitum, or whether jurisdiction depended on the mode in which the special statute dealt with the prohibited act by imposing penalties or punishment as the case might be,

To solve this question the Legislature made the liability to punishment the criterion, and in general a sentence which is not to be enforced by imprisonment is treated as merely a civil sentence, and as such is appealable to a civil court.

LORD WELLWOOD concurred.

The Court dismissed the suspension, awarding no expenses.

(Before the Lord Justice-Clerk, Lord Rutherfurd Clark, and Lord Kyllachy.)

GEMMELL v. COOPER.

Justiciary Cases-Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. c. 51) sec. 123, and Sched. C, sec. 101- Irrelevant Complaint.

Sec. 123of the Roads and Bridges (Scotland Act 1878 (41 and 42 Vict. c. 51) incorporates inter alia sec. 101 of the General Turnpike Act (1 and 2 Will. IV. c. 43), which enacts that if the surveyor of any turnpike road, or any contractor or other person employed on such road, shall lay on any part of any such road any heap of stones. . . and shall permit the same to remain longer than necessary... or shall dig any ditch or make any cut on any turnpike road without sufficiently fencing the same, such person shall for every such offence forfeit and pay a sum not exceeding five pounds," &c.

In a complaint charging a contravention of the above section the respondent was designated as "contractor," but there was no averment that he was "a contractor employed on the road." Held that the complaint was irrelevant. This was an appeal by Andrew Gemmell, Procurator-Fiscal of the Justice of Peace Court for the County of Haddington, against a judgment whereby the Justices found Robert Cooper, contractor, Links Street, Fisherrow, Musselburgh, not guilty under a complaint designing him as above, and charging him with having contravened the Roads and Bridges (Scotland) Act 1878, section 123, and section 101 of Schedule C, annexed to and incorporated with said Act, in so far as on the 25th day of April 1893 he 'did dig a drain or pit 50 yards in length

The facts proved were that the Special Drainage District Committee in the village of Ormiston had obtained permission from the Western District Committee of the County Council to open up the roads for the purpose of laying their drains; that the respondent was the contractor under the Drainage Committee for opening up the roads and laying the drains; that in the course of the execution of his contract he did dig the drains or pits mentioned in the complaint, and did not fence the same in any way whatever; that the respondent employed and paid a watchman to be on guard with lights during the night at the open drains, but that on the night in question the watchman had contrary to his duty gone home and gone to bed.

It was objected on the part of the respondent that he was not a 66 surveyor of any turnpike road, or a contractor or other person employed on such road," within the meaning of section 101 of Schedule C annexed to the Act. The Justices sustained the objection, and found the respondent not guilty of the contravention charged.

The question of law for the Court was"Was the respondent, in the position before stated, a contractor or other person employed on a turnpike road within the the meaning of section 101 of Schedule C annexed to the Roads and Bridges (Scotland) Act 1878, and as such within the scope of the enactment, and liable for a contravention to the penalty therein set forth?"

At the bar objection was taken to the relevancy of the complaint on the ground that it contained no averment that the respondent was a contractor employed on the road in question.

Argued for the respondent that the objection did not come too late, the irrelevancy founded on being the absence of one of the essential elements of the charge. The true purpose of section 101 was to protect the public against the negligence of the road officials and their employees, and not against other persons dealt with in other clauses, e.g., section 100.

At advising

LORD JUSTICE-CLERK-This case is stated on appeal against an acquittal under a complaint tried in the Justice of Peace Court at Haddington, and although the only question stated for our opinion is, whether certain facts being held to be proved the Justices were warranted in acquitting the accused, yet it is impossible for us not to look at the case as stated against the respondent in the original complaint. Now, in looking at that complaint I find no rele

vant case stated, and if no relevant case was stated by the Procurator-Fiscal in the complaint, it is not for us to answer questions of law arising under a complaint which is so stated that no conviction should have followed on it.

The complaint is that the respondent committed a contravention of the Roads and Bridges (Scotland Act) 1878, section 123 and section 101 of Schedule C appended thereto. Now, the relevancy of that complaint depends on the terms of the clause of the Act libelled, and if that clause said that any person doing the things mentioned in it would be liable to the penalties specified, then this would be a relevant complaint. But unfortunately this is not at all what is laid down in the clause, which bears that "if the surveyor of any turnpike road, or any contractor or other person employed on such road" shall do certain things, then such person shall be liable to certain penalties. Now, I find here no averment that the respondent Robert Cooper was a contractor employed on such road. For the appellant it was argued that because he was designed as contractor in the complaint, that was sufficient. Now, that he was named and designed as contractor tells us no more about him than that the prosecutor chose so to identify him for the purposes of citation, and does not amount to an averment that he was a contractor on these roads in the sense of the statute. Therefore I am clearly of opinion that the complaint is irrelevant and should not have been sent to trial, and that we must refuse the appeal on that ground, and decline to answer the questions put to us.

LORD RUTHERFURD CLARK and LORD KYLLACHY concurred.

(Before the Lord Justice-Clerk, Lord Rutherfurd Clark, and Lord Kyllachy.) FRASER, APPELLANT.

Justiciary Cases-Bail-Forgery - Successive Charges.

Thomas James Fraser, a corn-factor in Glasgow, was committed on a charge of forging three bills for sums amounting to about £1000. On his applying for liberation on bail, the ProcuratorFiscal stated that he was investigating a further charge against Fraser of forging bills to the amount of about £3000. The Sheriff-Substitute (Birnie) refused the application in hoc statu, and Lord Kincairney adhered appeal. On the second set of charges being formulated, Fraser renewed his

on

application for bail, and the Sheriff fixed the amount at £2500. Fraser appealed to the High Court of Justiciary, on the ground that as his estates had been sequestrated the amount was prohibitive, and that his estates would probably yield sufficient to pay his creditors in full even if the bills current were included as debts, and that bills to the amount of £1000 were not current, having been taken up as they fell due or never discounted. He suggested £500.

The Court refused to interfere with the discretion of the Sheriff, and indicated that if the Crown had brought a counter-appeal they would have been prepared to hold that in the circumstances bail should be refused.

Counsel for the Appellant Guy. Agents -Wylie, Robertson, & Rankin, W.S. Counsel for the Respondent-Adv.-Dep. Reid. Agent-Crown Agent.

Right in Security-Personal Obligation in Bond and Disposition in Security-Right of Debtor on Paying Amount Due under Bond to Demand Assignation to Bond.

The granter of a bond and disposition in security who has sold the security subjects after granting the bond and disposition is entitled, when called upon by the creditor to pay the debt in full under his personal obligation, to demand from the creditor an assignation to the bond, and if the creditor has disabled himself from granting an assignation to the bond in its entirety the debtor is freed from his obligation.

MacBean having granted a bond and disposition in security for the sum of £3000 to Bankier's trustees, subsequently sold the security subjects under burden of the bond. The purchaser applied to Bankier's trustees to restrict the bond in order to enable him to sell part of the security subjects. Bankier's trustees consented without receiving any consideration, and the bond was restricted accordingly. Thereafter Bankier's trustees assigned the bond so restricted to an investment company which had previously obtained a postponed bond over the part of the security subjects still covered by the original bond granted by MacBean.

In an action by the Investment Company against MacBean for payment of