No. 43. Scott v. High Court. 1866. Suspension. without the certificate. The Suspender was entitled to Cumming remove sheep if he got a license whether he got it on July 7. production of a certificate or without it. With regard to the fourth reason of suspension, reference was made to the 8th, 9th, and 10th sections of the 10th and 11th Vict. c. 107, and to the 19th section of the Summary Procedure Act (27th and 28th Vict. c. 53), and relative schedules. The Justices were, by these Acts only empowered to grant a warrant for the imprisonment of a person convicted of an offence against the Acts and Orders should there be a failure to recover the amount of the penalty by distress, unless it should, before the issue of the distress-warrant, appear inexpedient to issue the same, in which case they ought so to find, and instant execution must thereafter follow. The forms provided by the 19th section of the Summary Procedure Act for the case in hand, where the justices had not issued a distress-warrant, had not been followed. If the provisions of this Act were taken advantage of, its terms must be closely followed. The conviction should have been in the form No. 4, schedule K, with the relative alteration provided, as applicable to the case when a distress-warrant was not issued. Without calling on the respondent's counsel, the Court unanimously refused the suspension. They held that, apart from the question whether they had jurisdiction to review the conviction on such grounds as those stated, the objections were not in themselves well founded. The LORD JUSTICE-GENERAL expressed his opinion that where sheep or cattle were removed from one county into another, a license was necessary from both counties. Further, that it was the duty of the owner of the animals to see to the obtaining of the prescribed certificate; and that as regards the form of the conviction, the schedules of the Summary Procedure Act were not imperative, but were to be observed as nearly as circumstances might admit.' His Lordship had, moreover No. 43. v. no doubt, that under the 8th section of the Summary Scott. Procedure Act no concurrence was neccessary to the Cumming. citation. The other Judges concurred; and the suspension was refused, with expenses. W. MILLER, S.S.C.-ADAM & SANG, S.S.C.-Agents. High Court July 7. 1866. Suspension. WALTER SCOTT, Suspender A. R. Clark-MacLean. AGAINST ANDERSON, Respondent-E. S. Gordon-W. Mackintosh. SUSPENSION CATTLE DISEASES' PREVENTION ACT-REMOVAL OF CATTLE WITHOUT A LICENSE-RELEVANCY.—A complaint having charged two offences founded on the same species facti, conviction suspended as to the one, and sustained as to the other offence. No. 44. Scott v. Anderson. 20. IN this case, which concerned the removal of the same sheep as in last case, there was brought under review of the Court a conviction pronounced in a com- High Court. plaint at the instance of the respondent (Justice of Peace July 7 and Fiscal for the county of Inverness) against the suspender. 1866. That complaint, which bore to proceed under the Sum- Suspension. mary Procedure Act, charged the suspender with two offences within the meaning of the Act 11th and 12th Vict. c. 107. section 4-(1) That contrary to the Orders of Privy Council, of date 11th April 1866, he had unlawfully removed the sheep from a grass park called Gilly Park, and near the Murthly station of the Highland Railway Company, whither they had been during the previous week removed from the farm of Gormick, near Blairgowrie, all in the county of Perth (within ten miles and less of Wester Gourdie, between the river Tay and Loch Clunie, occupied by Gow, and of Brown Muir, in the parish of Kinclaven, occupied by Alexander Mackendrick, all in the county of Perth, and each of them No. 44. Scott v. High Court. 20. 1866. Suspension. an infected place at the date of commission of said offence Anderson. or a place where cattle plague existed within a month July 7 and previous thereto), and near the Murthly station of the Highland Railway in the said county of Perth, and also within ten miles and less of the foresaid farms of Wester Gourdie and of Brown Muir respectively, where they were trucked and carried by rail into the county of Inverness, entering the same where the said Highland Railway does, at the county march between the counties of Perth and Inverness, about two miles north of Dalnaspidal in the county of Perth, and about six miles south of Dalwhinnie in the county of Inverness, whence they were conveyed onwards along the course of the said railway into the said county of Inverness, within which county they were untrucked at the Muir of Ord railway station, 735 or other number of Cheviot hogs, or other sheep, on their way to Fisherfield on the west coast of Ross-shire, or elsewhere in that part of said lastmentioned county to the prosecutor unknown; (2) That contrary to the foresaid Act, and to the Orders in Council of 3d November 1865, 14th March and 11th April 1866, he had unlawfully removed the sheep from the places (described exactly as above) across the said county march between Perth and Inverness, all to the south of the Caledonian Canal, by rail to the Muir of Ord station of the said railway, in the county of Inverness, and a place within the north-western district of Scotland, as defined in the said Privy Council Orders, on their way to Fisherfield aforesaid, or elsewhere in that part of Ross-shire to the prosecutor unknown; at least that the suspender removed the said sheep into the county of Inverness, or into the said north-western district of Scotland-all as libelled,-whereby the suspender was liable in a penalty not exceeding £20 for each offence, and costs, and failing payment and recovery by distress, to imprisonment for any period not exceeding three months for each offence. The suspender having been cited to a Court at Inver Scott v. July 7 and 1866. Suspension. ness upon the 29th of May 1866, instructed a law agent No. 44. to appear for him, who took various objections to the Anderson. complaint itself and to any proceedings being taken under HighCourt. it after the conviction which had been obtained against 20. the suspender for the same offence in Ross-shire. The justices repelled these objections. The suspender's procurator then admitted that he was guilty of the offences charged against him, and explained the circumstances under which the sheep had been removed. The justices thereafter pronounced sentence as follows: The justices, in respect of the judicial confession of the said Walter Scott, convict the said Walter Scott of the offences charged, and therefore adjudge him to forfeit and pay the sum of £20 sterling of penalty for the first offence charged, and the farther sum of £20 sterling of penalty for the second offence charged, with the sum of £14, Os. 8d. of expenses-that is to say, £7, Os. 4d. for each offence; and in respect it is inexpedient to issue a warrant of poinding and sale, ordain execution by imprisonment, failing payment within fourteen days from this date of said respective penalties and expenses; and grant warrant, &c. The suspender then brought the present suspension, by which he sought to quash the proceedings on a variety of grounds. In addition to those which were common to this and the foregoing case, and which, in respect of the judgment therein, were not insisted in A. R. CLARK and MACLEAN submitted (1) that the complaint did not relevantly charge any offence under the Acts or Orders in respect it was defective in the specification of the offences said to have been committed. It was not enough to say that the removal had been 'unlawful.' The illegality should have been condescended upon. The Summary Procedure Act required the particulars of the offence to be set out; (2) That it was not competent to charge the same species facti as separate offences; and (3) The proceedings at Dingwall in the above case were a bar to any being had under this complaint. GORDON and W. MACKINTOSH, for the respondent, were not called upon except with regard to the second ob Scott v. July 7 and 20. 1866. Suspension. No. 44. jection. They argued that, under the Acts and Orders Anderson. in Council it was an offence to remove sheep into a High Court county without a proper license, and a separate offence to remove them into the north-western district of Scotland. The true reading of the complaint in the present instance was that the first charge referred to the part of the county of Inverness not within the north-westǝrn district, the second charge to the north-western district. The orders in Council said to have been contravened by the two offences were different. The Court took time to consider this judgment. The LORD JUSTICE-GENERAL, who delivered the judgment of the Court, after narrating the circumstances of the case, said that the Court was of opinion that it was not clear upon the libel what the nature of the accusation under the first charge was, that it was difficult to read the complaint as distinctly setting forth two separate offences, if such could be charged under the Acts and Orders in Council; that the second offence was well charged and quite separable from the first, and that the conclusion which had been arrived at by the Court was, that the conviction of the first offence should be suspended, and that the reasons of suspension should be repelled with regard to the conviction for the second offence. The expenses apportioned to the separate offences would be dealt with in conformity with this judgment, and expenses would not be allowed to either party in this Court. W. MILLER, S.S.C.-MACKENZIE and FRASER, W.S.-Agents, |