before us, because the complainer has not been convicted No. 22. of that offence. Craig . The Great North of The first charge divides itself into two branches-in Scotland Railway Nov. 20. 1865. other words, the complaint sets out that the contraven- Company. tion in question was incurred in one or other of two High Court ways, either by travelling on the Railway without paying the fare and obtaining a ticket, or by failing to pro- Suspension. duce or deliver up the ticket, or to pay the fare when required to do so; and it is concluded that in respect of this contravention, in either mode committed, the complainer has incurred a penalty not exceeding forty shillings. The sentence complained of convicts the suspender ' of the contravention first charged,' but then follow the words- of having failed to deliver up his ticket.' The question is whether that is a good conviction, under the complaint, or under the bye-law on which the complaint is founded. I am very clearly of opinion that it is a bad sentence. The first alternative of the charge does not seem to be within the bye-law at all, but that is probably not of much consequence. The second alternative is within the bye-law, which distinctly states the offence to consist in a passenger not delivering up his ticket, and at the same time not paying his fare when rerequired to do so by the railway officials. These two things-the failure to produce a ticket, and the refusal to pay the fare-must concur before the offence is constituted. But the Sheriff in this sentence convicts the accused of having failed to deliver up his ticket,' without saying anything about refusing to pay his fare. There may be a doubt whether the Sheriff did not mean the preposition of' to stand for 'by.' In that case I think the conviction is clearly bad in law. But supposing the preposition of' to be used in its own proper meaning, and not as equivalent to 'by,' then also the conviction is bad in law, because the accused is convicted of what is not an offence at all. I do not think this is a matter of form, falling under No. 22. the operation of the 33rd section of the Summary ProCraig v. The Great ceedure Act, I think it is a matter of substance, be North of Scotland cause it may be that the Sheriff did really think that Railway failure to deliver up a ticket was an offence under the High Court, bye-law in question. Company. Nov. 20. 1865. Suspension. I am therefore for suspending the sentence. Sentence suspended. DAVID MILNE, S.S.C.-JOHN HENRY,S.S.C.-Agents, ROBERT BUIST, Suspender-Fraser-Mair. AGAINST THOMAS LINTON, Respondent-Sol.-Gen. Young-D. Mackenzie. SUSPENSION-COMPLAINT RELEVANCY-A complaint in the Police Court of Edinburgh set forth that the accused (a cattle-salesman) did, within the premises occupied by him, annoy and interrupt two inspectors of markets, and did use opprobrious epithets to'wards them, whereby they were annoyed and disturbed '-Held that the complaint contained no allegation of any offence, either statutory or at common law; and conviction proceeding thereon suspended. THE suspender was charged before the Police Court at Edinburgh on a complaint which set forth That Robert Buist, a cattle-salesman, residing in Lauriston Place, Edinburgh, did, upon the first day of August 1865, or about that time, in the premises at Lauriston Street, Edinburgh, occupied by him, annoy and interrupt Robert Wilson, an inspector, and Robert Reid, an assistant-inspector of markets for the city of Edinburgh, and did use No. 23. opprobrious epithets towards them, whereby they were annoyed and disturbed. Buist v. Linton. High Court. Nov. 20. Having been convicted, he brought a suspension on 1865. the ground that the complaint did not set forth any Suspension cognisable offence. The answer of the respondent appears from the following opinion of Buist v. Linton. The LORD JUSTICE-CLERK.-This is the most remarkable High Court. complaint I ever saw. The amount of information Nov. 20. 1865. which we get from the complaint itself is certainly very Suspension. meagre, but still we have to say whether it contains an allegation of any offence, either at common law or under an Act of Parliament. The person against whom it is directed is Robert Buist, a cattle-salesman, residing in Edinburgh: the locus is the premises occupied by him at Lauriston Street; and the fact alleged against him is that he did 'annoy and interrupt' two persons, and did use opprobrious ' epithets towards them, whereby they were annoyed and 'disturbed.' These two persons are designed and described as being the one of them inspector, and the other assistant-inspector of markets for the city of Edinburgh. Apart from the characters of inspectors of markets which is said to belong to Wilson and Reid, and the character of cattle-salesman which is said to belong to Buist, and apart from any relation that may thereby be established between them, and viewing this complaint as one by two private individuals against a third private individual, I do not think that any one has ventured to say that there is here a good charge at common law, or that a criminal prosecution is competent for annoying and disturbing persons within the accused's own premises. The sole contention relied on is that this was a proceeding for the purpose of protecting two public officers in the discharge of their statutory duty as inspectors of markets, and reference is made to sections 113 and 114 of the Edinburgh Police Act. Now section 113 defines the duty of the inspector of markets, (and I presume that this includes the duty of assistant inspector, for it can be no larger than that of the principal). It says that it shall be his duty to see that the regulations for markets and slaughter-houses are duly ' observed;' and in particular, that no butcher's meat, No. 23. Buist v. Nov. 20 1865. fish, poultry, or other article of food of an unsound or unwholesome description, or adulterated butter, meal, High Court. bread, or any other article of adulterated food whatsoever, is exposed for sale or kept in markets, shops, stalls, Suspension. or other places.' That is a most wholesome regulation. The duty there defined will, if well performed, be of the greatest benefit to the community. Then there is a provision in the 114th section, which is intended to aid the inspector in the performance of his duties. It lays upon the keepers of slaughter-houses, markets, shops, stalls, and other places for the sale of butcher's meat, fish, or other provisions, and all cowfeeders,' a duty and obligation to allow the inspector, at all hours during the night and day, access to their premises, for the due performance of his duty, under a penalty not exceeding forty shillings for each offence. The persons here mentioned are just the very persons in whose premises the unwholesome articles enumerated in the previous section may be expected to be found. But I have the greatest difficulty in seeing what Mr. Buist, the cattlesalesman, has to do with these sections. He is not the keeper of a slaughter-house, market, shop, stall, or other place for the sale of butcher's meat, and just as little is he a cowfeeder. In short these sections are totally inapplicable to the case of a cattle-salesman who deals in live cattle. Even giving, then, to this complaint the most liberal construction, and assuming that the premises libelled were those in which Mr. Buist carried on his business, it is important to keep in view that is not said the inspectors were there in an official capacity. It was contended, however, that as the respondents are designed in the complaint as inspectors of markets, it must be presumed that at the time when this offence is said to have been committed they were acting in that capacity. But even conceding that, surely the respondents were bound to state that in point of fact they were in these premises in the discharge of their statutory duty. To defend these proceedings under the Police Act is therefore impossible; and at common law the thing is too ludicrous to require even to be analyzed. LORDS COWAN and JERVISWOODE concurred. The Court suspended the conviction. JAMES FINLAY, S.S.C.-JOHN RICHARDSON, W.S.-Agents. No. 23. Buist v. High Court. 1865. Suspension. WILLIAM FORBES, Suspender-Scott. AGAINST JOHN DUNCAN, Respondent-A. Moncrieff. SUSPENSION-STATUTE 2D AND 3D WILL. IV. c. 68 (Day Trespass Act)-CONVICTION-JUSTICE OF THE PEACE.-In a suspension of a conviction by Justices uuder the Day Trespass Act, held that the only paper which could be looked at by the Court, as containing a record of the sentence, was the conviction transmitted to the Quarter Sessions in terms of the 13th section of the Statute. No. 24. THIS was a suspension of a conviction by the Justices of the Peace for the county of Forfar, under the Act Forbes v. 2d and 3d Will. IV. c. 68, for the prevention of trespasses in pursuit of game. The only ground of suspension insisted in was that the conviction was not in the form directed by the 9th section of the Statute. In support of this objection the suspender produced a copy conviction which he alleged had been written out and signed by the Justices immediately after pronouncing sentence. In answer to a question put by the Court, the suspender's counsel admitted that a second form of the conviction had subsequently been drawn up and transmitted to the Quarter Sessions in terms of the 13th section of the Statute, and that this conviction was liable to no objection. The respondent was not called on. The LORD JUSTICE-CLERK.-I do not know whether Duncan High Court. Nov. 20. 1865. Suspension. |