HER MAJESTY'S ADVOCATE-A. Moncrieff A.D.-II.J. Moncreiff A.D. 1 AGAINST WILLIAM GARRETT AND THOMAS EDGAR-Macdonald-Guthrie. STATUTE 3D AND 4TH VICT. c. 74-THEFT OF OYSTERS-INDICTMENT -RELEVANCY-Two persons were charged with a theft of oysters, in contravention of the first section of the Act 3d and 4th Vict. c. 74. In the minor proposition it was set forth that the panels having obtained a license to dredge for oysters from the proprietor of an oyster fishery, and being empowered by the said license and the relative regulations of the said oyster fishery' to take only oysters above a certain size, did nevertheless, wilfully and knowingly, take and carry away a quantity of oysters of a less size. Objections to the relevancy (1.) that the facts set forth in the minor did not amount to a contravention of the Statute, (2.) that assuming that they did, the license and regulations libelled on ought to have been narrated at length-repelled. No. 39. AT the Circuit Court of Justiciary held at Dumfries William in April last, Garret and Edgar, fishermen in Stranraer, were indicted and accused Garret and Edgar. High Court. 1866. Contrav. 3d THAT ALBEIT, by an Act passed in the third and fourth years of the reign of her present Majesty Queen Victoria, chapter seventy-four, intituled An Act for the Better Protection of the Oyster Fisheries in Scotland,' it is enacted by section first, That if any person in that Vict. c. 74. 'part of the United Kingdom called Scotland, shall wilfully and 6 'knowingly take and carry away any oysters or oyster brood from any oyster bed, laying, or fishery, being the property of any other 'person or persons, body corporate or politic, and sufficiently marked ' out or known as such, every such offender shall be deemed guilty of theft, and being guilty thereof, shall be liable to be sentenced to im'prisonment not exceeding the term of one year;' YEt true it is and OF VERITY, that you the said William Garret and Thomas Edgar are, both and each or one or other of you, guilty of the statutory crime above libelled, actors or actor, or art and part: IN SO FAR AS, you having joined in an undertaking with Mary M'Lean or O'Neil... to dredge for oysters in the loch of Lochryan; and having for that purpose obtained permission to do so by license granted by Sir William Thomas Francis Agnew Wallace, Baronet, of Lochryan, proprietor of the oyster fishery of the said loch, extending over and comprehending the oyster-beds and layings therein, or the said Mary and 4th No. 39. William Thomas High Court. and 4th M'Lean or O'Neil having obtained such permission on your behalf as Garret and well as her own, the said license being current at the date hereinafter libelled; and you being empowered by the said license, and by the relative regulations of the said oyster fishery, subject to which the said license was granted, to take and carry away from the said fishery all oysters dredged by you exceeding in diameter 2 inches, and not Contrav. 3d being permitted by the said license and regulations to take and carry Vict. c. 74. away from the said fishery any undersized oysters, that is to say, oysters not exceeding in diameter 24 inches, but on the contrary, being bound in terms of said license and regulations to return such oysters to the sea immediately, if brought up by your dredge: Nevertheless you did, on a date specified, both and each or one or other of you, wilfully and knowingly, take and carry away 3000 or thereby oysters or oyster brood, of a less size than 2 inches in diameter, from the said oyster fishery, the property of the said Sir William Thomas Francis Agnew Wallace, Baronet, and sufficiently marked out or known as such '. . . and this you did, both and each or one or other of you, wickedly and feloniously, well knowing that you had no right to take and carry away the undersized oysters above libelled, and that you had not obtained any permission to do so from the said Sir Agnew Wallace, Baronet. Objection having been taken to the relevancy of the indictment The LORD JUSTICE-CLERK certified the case to the High Court. MACDONALD and GUTHRIE, for the panels, argued, (1.) The statutory offence was not well libelled. The Act was limited to the case of persons taking oysters who had no right whatever to do so. It did not apply, and ought not unreasonably to be extended, to a case like the present, where a regular license to fish had been granted by the proprietor. Under the regulations founded on the measurement of the oysters was left entirely to the discretion of the fishermen. Was it to be said that if he took an oyster the eighth of an inch under the specified size, he was guilty of theft, whereas if it was above that size he was acting lawfully? Besides, what was the diameter of an oyster, which was not circular or globular, but always a mishapen object? (2.) At all events the license and regulations should have been libelled on verbatim. Without such specifica No. 39. William Thomas Edgar. June 4. 1866. and 4th tion it was impossible to tell what was the precise offence charged-Angus M'Kinnon, High Court, May 25, 1863, Garret and Irvine, vol. iv. p. 398; George Douglas, High Court, January 23, 1865, Irvine, vol. v. p. 53. The following High Court. cases were also referred to in the course of the debateCatherine Crossgrove or Bradley, High Court, February Contrav. 3d 6, 1850, J. Shaw, p. 301; Robert Thomson and George Vict. c. 74. Mackenzie, High Court, December 6, 1842, Broun, vol. i. p. 475; Robert Maclean, Glasgow, September 21, 1842, Broun, vol. i. p. 416; Thomas Houston and James Ewing, Glasgow, April 23, 1846, Arkley, p. 252; Peter Galloway, High Court, February 24, 1851, J. Shaw, p. 470. A. MONCRIEFF and H. J. MONCREIFF, for the Crown :-Sir William Wallace had a right of property in the oysters under a certain size, and he was entitled to protect it by making the license conditional. The case is so peculiar that it could only be reached by this Statute. The opinion of the Court was delivered by The LORD JUSTICE-CLERK.-This is a case which is new, and it is undoubtedly of some importance. It was therefore very fitting that it should be fully argued. But after giving all due attention to the argument, I confess I do not think that the case is attended with any very serious difficulty. The major proposition sets out the first section of the Statute. There is nothing else in the major, and therefore, if the prosecutor has well libelled a breach of that section he is entitled to prove it. If he had attempted to libel a breach of the regulations, or anything else, he would not have been entitled to prove it. I am of opinion that he has well libelled a breach of the Statute. The peculiar position of the panels is that they had a license from the proprietor to fish within this oyster fishery; but that license was limited to this effect, that they had his authority and permission to take oysters of a certain size only. They could not therefore be charged with taking oysters of the size they were permitted to take; William Thomas June 4. and 4th No. 39. but the license being so limited, they were still open to Garret and a charge of taking oysters of a different size, and their Edgar. license would form no defence to such a charge. That High Court is the substance of the matter. It is a different question 1866. whether the offence is well libelled. I think the I think the proseContrav. 3d cutor has been very successful in doing so, and that the Vict. c. 74, indictment is framed with care and skill. What he says is-[Reads minor proposition.] Now this seems to me irreproachable logic. It amounts to this:The Statute forbids you to take any oysters the license permits you to take oysters of a certain size only-you have taken oysters of a smaller size-therefore you are within the Statute. I see no flaw in this. It was urged that the prosecutor had not given sufficient information as to the mode in which the regulations had been infringed. But there is no breach of the regulations charged. The only breach charged is one of the Statute. The regula tions are set out only because it was necessary to restrict the offence to theft of oysters under a particular size. I think, therefore, there is no want of sufficient specification. There is nothing here of the same nature as the offence charged in the cases of M'Kinnon and Douglas. These cases depended on a different principle altogether. In the case of Douglas, the charge was libelled as theft in the ordinary way. It came out in the evidence that the cattle were not theftuously taken, and indeed not taken away at all, but that, being on the panel's farm, he appropriated them. There was no amotio proved at all. Therefore I told the jury that the prosecutor had not established the case he libelled, and that they must find a verdict of not guilty, which they did.. ,, On the whole matter, I have no doubt about the present case. The objections were accordingly repelled. On the motion of the Advocate-Depute, the diets against the panels was deserted pro loco et tempore. Present, THE LORD JUSTICE-GENERAL. LORDS COWAN AND ARDMILLAN. HER MAJESTY'S ADVOCATE A. Moncrieff A.D.—Crichton A D. AGAINST PETER GRIEVEJ, D. Grant. WILFUL FIRE-RAISING-BURNING EVIDENCE.-The crime of wilful fire-raising is committed by a door being set on fire, but the fact of a door being charred does not necessarily imply that it has been on fire. 2. Evidence of an insurance effected by the panel over goods in his shop admitted, without objection, to prove motive, although no notice was taken of it in the indictment. PETER GRIEVE was indicted and accused June 18. 1866. No. 40. Grieve. June 18. 1866. Wilful FireRaising or Attempt. THAT ALBEIT, by the laws of this and of every other well-governed realm, Wilful Fire-Raising; As also attempt to commit Wilful FireRaising, are crimes of an heinous nature, and severely punishable: High Court. YET TRUE IT IS AND OF VERITY, that you the said Peter Grieve are guilty of the said crime first above libelled, or of the said crime second above libelled, actor, or art and part: IN SO FAR AS, on the 4th day of January 1866, or on one or other of the days of that month, or of December immediately preceding, or of February immediately following, you the said Peter Grieve did, wilfully, wickedly, and feloniously set fire to the shop or premises in or near Niddry Street, Edinburgh, the property of Mathew Brown, cabinetmaker, now or lately residing in or near Saint Leonard Street, Edinburgh, and then occupied by you, by applying some lighted or ignited substance, to the prosecutor unknown, to a quantity of paper or other combustible materials, to the prosecutor unknown, in said shop or premises, or in some other manner to the prosecutor unknown; and the said fire thus set or applied by you did take effect, and did burn and destroy part of said shop or premises, particularly the architrave of the door of the back shop of said shop or premises, or part thereof, and part of the ceiling of said shop or premises, and the said fire was thereafter, by the exertions of well disposed persons, subdued and extinguished: OR OTHERWISE, time and place above libelled, you the said Peter Grieve did, in manner above libelled, or in some other manner to the prosecutor unknown, wilfully, wickedly, and feloniously attempt to set fire to the said shop or premises. The panel pleaded not guilty,' and the case went to trial. [In the course of the trial evidence was led for the purpose of proving motive as to an insurance against fire which the panel had effected over the goods in his shop, although no notice was given in the indictment. |