No. 3. High Court. same,' ,' actor or art and part, in so far as, upon the 29th day of Gardner October 1864, or about that time, he had in his possession in a place v. Dymock. within the slaughter houses in Fountainbridge Street, Edinburgh, erected in virtue of said Act, the carcases or parts of the carcases of two cows, each of which was unsound, unwholesome, or unmarketable, Suspension. whereby the said Peter Gardner is liable in a penalty not exceeding twenty pounds, and failing payment, in imprisonment not exceeding sixty days, and in forfeiture of said carcases. 1865. The prayer of the complaint was— To grant warrant to cite the said Peter Gardner to appear before you, to answer to this complaint, and thereafter to convict him of the aforesaid contravention, and to adjudge him to suffer the penalties provided by the said Act. The record of the proceedings, which took place under the authority of the Summary Procedure Act, 1864 (27th and 28th Vict. c. 53)2, was as follows :— By the 8th section of the Edinburgh Slaughter Houses Act it is provided, that if any person shall have in his booth, or in his possession, in any place within the said slaughter houses, the carcase, or any part of the carcase, of any animal which, in the opinion of two competent judges, shall have died of disease, or which, in the opinion of competent judges, shall be unwholesome, unsound, or unmarketable, such person shall be liable in a penalty not exceeding 6 twenty pounds, . . . . . and all such carcases and others shall be for'feited and disposed of as the magistrates shall direct.' ..... The 32d section provides that any person offending against the provisions of the Act may be proceeded against before the Judge in the 'court of police at the instance of the procurator-fiscal of the said court, in the same way and manner as if the offence charged had 'been an offence against the provisions of 'the Edinburgh Police Act, 1848,' or before the Sheriff, or before one or more of the magistrates, ' at the instance of the procurator-fiscal of the Sheriff or burgh courts ' respectively, and that in a summary manner; and it shall be lawful to the said Judge of police, Sheriff, or magistrates, to subject the 'offender in a penalty not exceeding that imposed, or allowed to be imposed, . . . . . by this Act, in respect of the offence charged; and in the event of such penalty not being immediately paid,' etc. The Summary Procedure (Scotland) Act, 1864 (27th and 28th Vict. c. 53), enacts, section 18, that 'in cases of conviction or judg'ment against the respondent in prosecutions and proceedings under this Act, the sentence of the Court may be in one or other of the At Edinburgh, the 8th day of November 1864 years: In the presence of James Thomas Alexander, Esq., one of the magistrates of Edinburgh, appeared Peter Gardner, complained against, and the complaint being read over to him, he answers that he is not guilty. Eo. die. The witnesses after named were examined on oath in support of the complaint, viz.-(Here followed names). Edinburgh, 9th November 1864.-The witnesses after-named were examined on oath in exculpation, viz.-(Here followed names). At Edinburgh, the 9th day of November 1864 years: The magistrate, in respect of the evidence adduced, convicts the said Peter Gardner of the contravention charged, and adjudges the carcases of the two cows libelled on to be forfeited and boiled down. The complainer presented a note of suspension, and pleaded-1. The sentence complained of ought to be suspended, in respect that the magistrate who pronounced the same most wrongously and oppressively refused to 'forms contained in the schedule (K) to this Act annexed, or as ' nearly as may be in such form, according to the nature and circumstances of the complaint, viz. :' Then follows an enumeration under eight heads, of the different forms of sentence The third is as follows: (3.) In complaints for 'the contravention of any Act of Parliament under which the accused is or shall be liable to forfeit a penalty, and in default of payment 'thereof to be imprisoned for a period limited to a certain time, at 'the expiration of which he shall be entitled to liberation although the penalty has not been paid, the judgment of the Court shall be ' in the form No. 3 in the said schedule.' The corresponding form given in schedule K. is as follows:'3. Conviction for a Penalty, and, in default of Payment, Imprisonment. 'The Justices [or Justice, or Sheriff, or Magistrate], in respect of 'the judicial confession of the said J. K. [or of the evidence adduced], 'convict the said J. K. of the contravention [or offence] charged [or state to what extent he is guilty], and therefore adjudge him to 'forfeit and pay the sum of £ of penalty [or of modified penalty, เ 'where there is power to modify],' etc. Section 16 of the same Act provides' It shall not be necessary in any proceeding under the authority of this Act to record or to preserve a note of the evidence adduced, but the record shall set forth ' in the form of schedule (I.) to this Act annexed the respondent's plea, if any, the names of the witnesses, if any, examined upon oath ' or affirmation, with a note of any documentary evidence that may be put in.' No. 3. Gardner v. Dymock. High Court. Jan. 9. 1865. Suspension Gardner admit evidence on behalf of the complainer, which was Dymock. relevant and competent, and which was material to the High Court, interests of the complainer and the ascertainment of the 1865. truth. 2. The said judgment and sentence, being conSuspension trary to the evidence adduced, ought to be quashed, Jan. 9. and the whole proceedings thereon suspended. 3. The said sentence being informal and defective, and more particularly, being disconform to the complaint and to the Statutes under the authority of which the complaint proceeded, ought to be suspended. In support of the 1st plea, he stated-In the course of the trial before the magistrate, the only witness who deponed that any part of the animals exhibited marks of unsoundness was Robert Wilson, inspector of markets. The complainer was about to lead evidence which would have demonstrated that the said inspector had neither scientific nor practical knowledge in regard to the soundness or unsoundness of animal carcases, but the magistrate refused to allow such evidence to be adduced. The complainer conceives that his case was seriously injured, and substantial justice denied him, by the said refusal on the part of the magistrate. Of the two other witnesses who were examined for the prosecution, namely, Mr. Gamgee and Dr. Littlejohn, the former deponed that, in his opinion, bad effects were produced on the consumer by the use of the beef of an animal affected with pleuro-pneumonia. He, however, was unable to furnish, and did not furnish, any example of this having taken place. On the complainer attempting to cross-examine the witness as to the reasons of his opinion, and the number of cases which he had seen or heard of, he was illegally and improperly prevented from doing so by the magistrate. The bill of suspension came on for discussion upon 4th January 1865. MILLAR and THOMSON, for the suspender, argued1. The sentence complained of was on the face of it informal and invalid. In the first place, in adjudging the carcases of the two cows 'to be forfeited and boiled down,' No. 3. the bailie had dealt with a matter not embraced within Gardner r. Dymock. 1865. the prayer of the complaint. He had also exceeded High Court. his statutory jurisdiction, by usurping a function which by section 8 of the Slaughter Houses Act is entrusted Suspension. to' the magistrates' as a body. Besides, the sentence did not exhaust the conclusions of the complaint. Although the magistrate had convicted the complainer of the statutory offence, he had not inflicted the statutory penalty. There was here an important deviation from the requirements of the Slaughter Houses Act, and also of the Summary Procedure Act. The forms of sentences given in the latter statute were imperative. Authorities cited-Hood v. Young, High Court, June 10, 1853, Irvine, vol. i. p. 236; Ferguson v. Thow, High Court, June 30, 1862, Irvine, vol. iv. p. 196. (2.) At common law it was undoubtedly a good ground for suspending the sentence of an inferior tribunal, that it had been pronounced in disregard of the evidence. Neither was there anything in the Slaughter Houses Act to oust the jurisdiction of the Court. The only question was, whether in the present case review on the merits was excluded in virtue of the provisions of the Summary Procedure Act. That Act contained no positive exclusion of review. Neither was this a case in which written proof was expressly dispensed with. Under the 16th section of the Statute it was left in the option of the Judge to keep a record of the evidence or not as he pleased. In the view of such an enactment, it was not presumed that the Legislature intended to take away all power of review from the Court of Justiciary. The complainer did not ask to have the case tried over again, but merely that the Court should take means to ascertain the import of the evidence already led. Authorities cited-Robertson v. Hart, High Court, Dec. 24, 1842, Broun, vol. i. p. 468; Penman v. Watt, High Court, Nov. 24 and 25, 1845, Broun, vol. ii. p. 586; Phillips and Ford v. Cross, High Court, Dec. 20, 1848, VOL. V. B No. 3. Gardner J. Shaw, p. 139; Lockie v. M'Whirter, Feb. 15. 1849, v. Dymock. ibid., p. 161; Christie v. Adamson, High Court, Oct. 1. High Court. 1853, Irvine, vol. i. p. 293. (3.) The complainer had 1865. been illegally and oppressively prevented from leading Suspension, evidence that Wilson, the inspector, was not a 'compe Jan. 9. 'tent judge' of diseased meat in the sense of the Slaughter Houses Act. If the complainer had been successful in that, no conviction could have followed. The magistrate had also improperly interfered with the conduct of the complainer's cross-examination of a witness. In such a case it was the duty of the Court to give redress. GIFFORD, for the respondent, answered-(1.) No good objection had been stated to the present sentence on the ground of informality. The forfeiture of the carcases was prayed for in the complaint under the head of penalties' provided by the Act. And even admitting that the single magistrate, sitting as a judge, could not competently order the carcases to be boiled down, still that was not a matter with which the complainer had any concern. In regard to the omission of the adjudication of a pecuniary penalty, the magistrate was not bound, under the Slaughter Houses Act, to inflict a fine if he thought that, in the circumstances of the case, it might be dispensed with. This was plain from the terms of the 8th section. It was there enacted that a party convicted of the statutory offence shall be liable' to a penalty not exceeding £20, but that the carcase of the diseased animal shall be forfeited.' In the one case the magistrate might exercise his discretion, and impose a fine or not, as he thought fit; in the other the forfeiture followed as the necessary consequence of a conviction. The forms given in the Summary Procedure Act were directory, not imperative. (2.) The proposal that the Court should review the sentence on its merits was one that could not be listened to either on principle or authority. The provision contained in the 16th section of the Summary Procedure Act, dispensing |