No. 74.

examined for the prosecution and defence, the justices Jackson v. pronounced the following judgment:

The justices in respect of the evidence adduced convict the said Thomas Jackson of the contravention charged: IN SO FAR As, upon the 12th day of October last, being during the annual close-time fixed by the Salmon Fisheries (Scotland) Act, 1862, within the district of the river Annan, the said Thomas Jackson did, by means of poke-nets, unlawfully fish for and take four salmon in the Solway Firth, near to Seafield, in the parish of Annan, and within the limits of the said district, and therefore adjudge him to forfeit and pay the sum of £5 sterling of penalty for the offence charged, and £2 sterling for each of the four salmon taken or killed, the said penalties being payable to David Ewart, Writer, in Lockerbie, Clerk to the District Board of the district of the river Annan, with the sum of £2, 10s. sterling of expenses; and in default of immediate payment thereof, adjudged him to be imprisoned in the prison of Dumfries, for the period of three months from the date of his imprisonment, unless the said sums shall be sooner paid; and grant warrant to officers of Court to apprehend him, and convey him to the said prison, and to the keeper thereof to receive and detain him accordingly.

James Fulton was also tried upon the 22nd day of December 1866 before the same justices on a similar charge; and the conviction pronounced against him was in the same terms. More particularly it concluded in like manner with the above conviction- and in 'default of immediate payment thereof adjudged him,' &c. in place of adjudge him to be imprisoned in the prison of Dumfries,' &c.

NEVAY, for the appellant Jackson, objected to the alteration of the date of the offence as illegal. By the alteration it was made a new and a different offence contrary to the provisions of section 5th of the Summary Procedure Act. He was therefore illegally convicted of an offence of which he was not competently charged, and for which he had not been lawfully cited

to answer.

He objected also for both appellants that in both convictions the word adjudged had been used in place of the word adjudge as required by Schedule K appended to the Summary Procedure Act, and there being thus no words of de presenti meaning and effect adjudging

Jones. Fulton v.

Jones.

High Court
June 1,

1867.

Appeals.

Jackson v.

No. 74. the appellants to imprisonment, the conviction is inJones. operative and inept.

Fulton v.

Jones. A. R. CLARK and JOHNSTONE, for the respondent, HighCourt, maintained, in reference to the first objection, that the June 1, 1867. amendment allowed did not alter the character of the Appeals. offence charged, and the respondent is protected by the

provision in section 5 of the Summary Procedure Act, which specially provides for such amendments. The second objection relates to form, and is incompetent.

The LORD JUSTICE-CLERK.-The act of amendment seems to be justified by the express provisions of the 5th section of the Summary Procedure Act. The variance between the charge as made and the charge as allowed to be proved, is of a nature affecting not 'the character of 'the offence charged,' but the precise period of time at which that particular offence took place, a variance which might come to be one of a few minutes, and could not affect the question materially. At all events nothing was averred as to the party being misled, and no adjournment was moved, and the objection is therefore merely formal. The amendment allowed is authenticated by the clerk of Court as required. Is is said this was admissible only after the trial had begun. It is more for the interest of the party complained against that it should be stated before the proof began, and an amendment not varying the character of the offence may be made according to the Act at any stage of the pro'ceedings.'

The other objection, viz., the use in the conviction of the past tense of the word adjudge instead of the present was scarcely pressed. This objection is formal merely, and no conviction under the Act libelled on can be vacated on such a ground.

The other Judges concurring, the Court dismissed the appeal with expenses, modified to three guineas in each case.

Present,

THE LORD JUSTICE-CLERK.

LORDS NEAVEs and Jerviswoode.

HER MAJESTY'S ADVOCATE-Sol.-Gen. Millar-Broun A.D.

June 3, 1867.

AGAINST

ALEXANDER MACINTOSH and JOHN SMITH-Lawrie.

THEFT BY MEANS OF HOUSEBREAKING-PREVIOUS CONVICTION-SENTENCE. Two persons convicted of theft by means of housebreaking, aggravated by previous conviction, sentenced to eight years' penal servitude.

No. 75.

and Joh n

ALEXANDER MACINTOSH and JOHN SMITH were charged Alexander with the crime of theft, especially when committed by Macintosh means of housebreaking, and by a person who has been _Smith. previously convicted of theft

HighCourt, June 3, 1867.

IN SO FAR AS, on the 30th or 31st day of March 1867, or on one or Theft by other of the days of that month, or of February immediately preced-Housebreaking, ing, or of April immediately following, you the said Alexander Macin- & previous tosh and John Smith did, both and each or one or other of you, wickedly conviction. and feloniously, break into and enter the shop or premises in or near High Street, Portobello, in the county of Edinburgh, then and now or lately occupied by Alexander Taylor, sub-postmaster and stationer there, by boring holes by means of a brace and bit, or other means to the prosecutor unknown, in a door giving access to the cellars or other premises situated, or partly situated, under said shop or premises, which cellars or other premises were then occupied by Henry Calder, grocer and wine merchant in or near High Street, Portobello aforesaid, and by forcing out part of said door, and entering to said cellars or other premises by the aperture thus made, and thereafter, by means of the said brace and bit, or other means to the prosecutor unknown, making a hole in the ceiling of one of said cellars or other premises, and in the floor of said shop or premises immediately above the same, and entering thereby to said shop or premises, or in some other manner to the prosecutor unknown; and having thus, or otherwise to the prosecutor unknown, obtained entrance to said shop or premises, you the said Alexander Macintosh and John Smith did, both and each or one or other of you, then and there, wickedly and feloniously, steal and

Alexander

No. 75. theftuously away take Nine Sheets or thereby of Penny PostageMacintosh Stamps of the value of Nine Pounds sterling or thereby; One Sheet and John of Sixpenny Postage-Stamps of the value of One Pound sterling or Smith. thereby; a quantity of One Shilling, Ninepenny, Fourpenny, and TwoHighCourt, June 3, penny Postage-Stamps, the particular number of each of said kinds 1867. of Stamps being to the prosecutor unknown, the said quantity being Theft by of the value of Four Pounds sterling or thereby; and Five Shillings House- or thereby in Copper Money, the property or in the lawful possession & previous of the said Alexander Taylor: and you the said Alexander Macintosh conviction. and John Smith have each of you been previously convicted of theft.

breaking,

The indictment also set forth two convictions for theft against Macintosh before the Police Court of Edinburgh, on 21st September 1857, and 11th April 1861, respectively; as also convictions before the Sheriff-Court of Edinburgh, on 9th December 1861 and 10th December 1862; as also a conviction of the crime of theft against the same panel before the Sheriff-Court of Edinburgh, with a jury, on 1st October 1863; as also extracts or certified copies of two several convictions of the crime of theft against the panel Smith before the Police Court of Edinburgh, on 20th February 1861, and 25th March 1861; as also a conviction of theft against him before the Burgh-Court of Edinburgh, on 28th January 1865; and a conviction of the crime of theft against the same panel, before the Sheriff-Court of the county of Edinburgh, with a jury, at Edinburgh, on 29th January 1866.

The panel pleaded not guilty; and, after a trial, the jury by a majority returned a verdict of guilty as libelled.

The Court thereupon sentenced the panels to eight years' penal servitude each.

Present,

THE LORD JUSTICE-CLERK.

LORDS COWAN AND NEAves.

JAMES PATTERSON, Suspender-Black.

AGAINST

JOHN MALCOLM, Respondent-A. R. Clark.

SUSPENSION-STATUTE 17TH GEO. III. c. 56-Procedure-Oath -PRODUCTIONS-DELAY-APPEAL TO QUARTER SESSIONS-JUSTICE OF THE PEACE-RECOGNIZANCES-IMPRISONMENT.—In a complaint for contravention of the 10th and 14th sections of the 17th Geo. III. c. 56, for the prevention of frauds in the linen and other trades -objection, that the specification of the purloined materials in the petition and relative oath was insufficient,-repelled, and-Held, that it is unnecessary for the petitioner to set forth the grounds of his suspicion against the respondent in the oath emitted in terms of the Statute,

(2.) Objection that the materials were in a different condition at the trial from that in which they were when recovered-repelled as being matter of proof.

(3.) Objection, that there had been undue delay in the procedure, repelled.

(4.) Held that the justices in Quarter Sessions are bound to hear and finally dispose of an appeal regularly presented, and of which due notice had been given against a conviction obtained before the justices in Petty Sessions upon a complaint under 17th Geo. III. c. 56, nothwithstanding that the appellant had neither paid the penalty, been imprisoned, nor had entered into recognizances in terms of section 20th of said Statute; and an Interlocutor by the Quarter Sessions dismissing the appeal recalled, and the case remitted to the justices to be heard and disposed of, and liberation ad interim granted.

Juue 8,

1867.

Patterson v. Malcolm.

THIS was a bill of suspension and liberation at the in- No. 76. stance of James Patterson, Manufacturer in Kerriemuir, present prisoner in the Jail of Forfar, against John High Court, Malcolm, Superintendent of Police at Kerriemuir, and 1867. was presented in the following circumstances :

June 8,

Suspension.