of this otherwise reasonable implication may be thought to be in some degree impaired by the use of this identical clause, as well as others of similar import in prior and subsequent Acts of Parliament. The clause seems to be borrowed from the Small Debt Acts, 10 Geo. IV., c. 55, sect. 7; 1 Vict., c. 41, sect. 12, with reference to the citation of witnesses; and both these statutes, by other modes of expression, give effect to Sheriffs' warrants and decrees beyond their territories for other purposes; but that the framers of these acts did not rely on the implication there contended for is very evident, by the following separate enactment in both,-sect. 21 of former act, sect. 34 of latter: That in all or any cases above mentioned, where any decree or warrant shall have been indorsed as aforesaid, the Sheriff-officer of the county where such decree or warrant has been originally issued, as well as of any other county wherein the same is indorsed, are hereby required to obey and enforce such decree or warrant within such other county.' The clause in question again occurs in the late Sheriff-Court Act, 16 and 17 Vict., c. 80, sect. 11, in connection with provisions which tend still further to obscure its true reading. It is there enacted, that a certified copy of the portion of an interlocutor appointing a diet of proof, shall be a sufficient warrant to any officer in Scotland (acting within his own county) to cite witnesses and havers at the instance of either pursuer or defender, to attend such proof, and such warrant shall have the same force and operation in any other county.' Now, ou the assumption of the prosecutor's construction of the clause as it appears in the former Sheriff-Court Act, it follows that the latter act must be held to alter the regulation in regard to the citation of witnesses and havers in civil processes.

"The question is not free from difficulty, but the inclination of my mind is to sustain the validity of the citation. This appears to me quite reconcileable with a fair and natural reading of the clause itself, and certainly is by no means at variance with the declared intendment of the enactment. This result, of course, does not assume the invalidity of a citation given by an officer of the sheriffdom that indorses the citation; on the contrary, it would rather appear that the Legislature meant to give the obtainer of the warrant the option of employing either officer, as happens to be most suitable, convenient, or least expensive. I have accordingly, though with much hesitation, repelled the objection. The principle involved appears very important, having such extensive application in both civil and criminal procedure before Sheriff-Courts, and therefore it is to be regretted that the correct construction has not (so far as I am aware) been fixed by the Supreme Court."

The Sheriff-substitute, by a subsequent interlocutor, found that the parties had been duly cited, and having failed to appear, held them as confessed, and decerned against them for £2 of penalty and expenses.

The appellant appealed to the Circuit Court against the judgments of the Sheriff-substitute.

The appellant contended-1. That the Sheriff of Selkirkshire had no jurisdiction to entertain the complaint. By sect. 51 of the Tweed Fisheries Act, it was provided that offences under the act shall be heard and determined in Scotland,

"by or before the Sheriff or Steward-depute or substitute, or before any one or more Justice or Justices of the Peace in any shire, stewartry, burgh, or place in Scotland, as aforesaid, wherein such penalty or forfeiture shall have been incurred, or where the offender or offenders shall reside, or shall be found by and at the instance of the public prosecutor of the county, district, or place where the offence may be committed, or where the offender or offenders shall reside, or shall be found, or at the instance of any one or more of the commissioners and overseers appointed by or in virtue of this act, or - at the instance of their clerk or clerks for the time being; and in recovering the several penalties enforced by this act, or any other act for the preservation of the salmon fisheries in Scotland, it shall be lawful for the Sheriff or Steward-depute or substitute, or Justice or Justices before whom any complaint for the recovery thereof may be brought, to proceed in a summary way, and to grant warrant for bringing the parties complained of immediately before him or them, or for citing the party or parties complained of, to compear before him or

them, upon previous notice or induciæ of not less than six free days served upon such party or parties, or left for him, her, or them, at his, her, or their last known usual place or places of abode, as such magistrate or magistrates shall see fit."

According to this provision of the statute, an offender might be proceeded against in the shire or place1st, where the offence is committed; 2d, where the offender resides; or, 3d, wherever he may be found. The first case, however, applied to a party apprehended either in the act of committing the offence, or immediately afterwards in the place where it was committed. There was authority in the act to water bailiffs to apprehend parties in such circumstances. The second case applied to a party who had not been so apprehended, and who might either be resident in the shire, county, or place within which the offence was committed, or in another territory; but in the event of the party being resident in another territory, the judge of that territory had alone jurisdiction to entertain a complaint. The third case applied to a party who might have no fixed residence in Scotland, and the statute conferred jurisdiction upon the judge of the territory within which the party complained against might be found. In the present case the parties were not apprehended by the water bailiffs, and they had known residences in another county than the one in which the offence was said to have been committed. The only judge, therefore, who had jurisdiction, was the Sheriff or Justices of Roxburghshire. It was not intended by the Legislature to confer upon an inferior judge such extensive jurisdiction as that assumed by the Sheriff of Selkirkshire. The effect would be to allow the Sheriff to ordain parties resident in England, and in the remotest parts of Scotland, to appear before him within a period of six days, merely because the offence charged was said to have been committed within his territory. The offence, although so called in the statute, was not a crime at common law. It was merely a malum prohibitum, and the statute being penal, it was to be strictly construed. It was therefore contended, that the only judge who had jurisdiction was the judge of the territory within which the appellan+ resided.

2. It was further maintained, that the indorsation on the warrant of citation was null, in respect of there being no specification of the statute in virtue of which it was made. The complaint was one founded upon a particular statute, the provisions of which were set forth in the complaint; and as that statute gave no authority for such indorsations, it was imperative on the Sheriff-clerk to state in the indorsation the particular statute which authorized it. As it is, it is wrapt in obscurity, and it was left entirely to the ingenuity of the party complained against, to discover the statute in virtue of which he is to appear before the judge of another territory than in that in which he is resident.

3. It was also maintained, that the warrant of citation executed by a Sheriff-officer of Selkirkshire was null and void. The question thus raised was one of considerable importance, as well with reference to civil as criminal cases; and there was no authority either at common law or under the Tweed Fisheries Act, for an officer of one territory to execute a warrant in another. Such authority could not be implied, and must be instructed by a special statutory enactment. It was laid

down by Erskine (i. 2, 17,) "that no suit can proceed against a defender till he be lawfully summoned to appear in judgment, neither can a judge issue a warrant to cite one who resides in another territory. Where, therefore, one whose domicile was not within the territory is to be sued before an inferior Court, the pursuer must apply to the Court of Session, whose jurisdiction extends over the whole kingdom, for letters of supplement, which are granted of course, containing a warrant to cite the defender to appear before the judge' of the territory where the controverted subject lies." At the time, therefore, when it was the practice to resort to letters of supplement, these could only be executed by a messenger-at-arms. A Sheriff-officer could not execute them. The Act 1 and 2 Vict., c. 119, however, abolished letters of supplement, and by section 24 it was provided

"That it shall be competent to cite all parties within Scotland as parties in any civil or criminal action or proceeding in any Sheriff-Court, who may be amenable to the jurisdiction of such Courts, in respect of such action or proceeding, by the warrant of such Sheriff-Court; and it shall also be competent to cite witnesses and havers within Scotland, in any civil or criminal action or proceeding in any such Courts, by the warrant of said Courts. And all such warrants shall have the same force and effect in any other sheriffdom as in that in which they were originally issued, the same being first indorsed by the Sheriff-clerk of such other sheriffdom, who is hereby required to make and date such indorsation; and such citation, duly made, shall be deemed to be due and regular citation."

Assuming that the Sheriff of Selkirkshire had jurisdiction, the warrant of citation by him could only be executed after being indorsed by the Sheriff-clerk of Roxburghshire, and by an officer of the latter county. The meaning of the above provision was to abolish letters of supplement, and introduce in their stead indorsation. It left intact, however, the execution of such warrants. The indorsation is the warrant of the judge in whose territory the parties reside, and it could therefore only be executed by an officer of his Court. Citation could not be duly made by an officer who had no power to enter the territory of the indorsing Sheriff. By his appointment the Sheriff-officer's duties were confined to his particular territory, and he was not entitled to go beyond that territory, unless authorized by statute. The bond of caution executed by the cautioners of the officers only applied in like manner to the particular territory, and if the officer went beyond that territory, and did any act in violation of his powers, the cautioners would not be liable. Reference was made to the Sheriff-Court Act 1853, sect. 11, and to the Small Debt Act, 1 Vict., c. 41, sects. 12 and 19; Gillespie's Powers and Duties of a Messenger-at-Arms, and Office of a Messenger; Her Majesty's Advocate v. Tait, 16th April 1851, Shaw's Cases.

The respondent replied-1. That no objection had been stated before the Sheriff to his jurisdiction, and that, at any rate, there was no doubt the Tweed Fisheries Act conferred jurisdiction against parties resident beyond his territory, provided the offence was committed within it. 2. That as there was only one statute with reference to indorsations, it was not necessary to specify it on the back of the warrant of citation; and, 3. That the execution by the Sheriff-officer of Selkirkshire was perfectly good. The object of the act was to abolish letters of

supplement, and to admit of Sheriffs' warrants being indorsed and executed in the least expensive way. The warrant was directed to officers of Court-that is, of the Sheriff who issues the warrant, so that any of his officers had ample authority to execute these warrants in another territory after being indorsed by the Sheriffclerk.

Lord Handyside.-It was maintained that the execution required to be made by a Roxburghshire officer. If I were of opinion that the objection to the jurisdiction is well-founded, there would be no necessity to consider this point. I am satisfied, however, that there is power given by the statute to entertain this complaint before the Sheriff of Selkirkshire. There is no authority for the construction put upon the three alternatives in the statute, founded on by the counsel for the appellant.

As regards the objection to the indorsation, I am also of opinion that it is not well-founded. The terms of the indorsation are not peculiar, and as there is only one statute authorizing such indorsation, it is unnecessary to specify it.

The third objection is more important. Assuming that the Sheriff of Selkirkshire had jurisdiction, and that there is no doubt as to the indorsation, the question is-whether an officer of Selkirkshire was entitled to execute the warrant in Roxburghshire. I am satisfied, from the statute which has been referred to, that the execution is sufficient. An argument might have been raised much more difficult than that in the present case, and as to the legality of an execution of citation by an officer belonging to Roxburghshire. But that question is not now before the Court. The warrant here is addressed to the officers of Court-that is, of the Court of the Sheriff of Selkirkshire; and the section of the Act of 1 and 2 Vict., c. 119, provides that such warrants 'shall have the same force and effect in any other sheriffdom as in that in which they were originally issued, the same being first indorsed by the Sheriff-clerk of such other sheriffdom." Had the warrant been executed by a Roxburghshire officer, there would have been more difficulty, in consequence of the warrant being addressed to the officers of the Sheriff by whom it is originally issued.

The Court affirmed the judgments appealed from, and dismissed the appeal.

Presiding Judge, Lord Handyside.—Act. Mair; Alexander Jeffrey, Writer, Jedburgh, Agent. Alt. Hector; James Stevenson, Writer, Jedburgh, Agent.-. Clerk.—(G.R.O.)

23d September 1856.

CIRCUIT COURT OF JUSTICIARY.—ABERDEEN. HER MAJESTY'S ADVOCATE v. JAMES AULD. Indictment-Relevancy-In an indictment charging culpable homicide and culpable or reckless violation or neglect of duty against the overseer of works in progress on a line of railway, the minor proposition specified that directions issued by the Sheriff in regard to blasting rock on the line had been neglected, and a person having been killed, the overseer was guilty of one or other of said crimes-Objection to the relevancy that the Sheriff's directions were ultra vires, and that their violation did not constitute a crime, repelled.

James Auld was accused of the crimes of "culpable homicide" and " culpable or reckless violation or neglect of duty, by a person carrying on operations by means of blasting rock with gunpowder, whereby any of the lieges are bereaved of life,"-In so far as

"John Dean, railway contractor and farmer, now or lately residing at or near Mains of Balquhain, in the parish of Chapel of Garioch, and shire of Aberdeen, being engaged as contractor or otherwise in carrying on, by means of workmen subject to his direction and control, and to the direction and control of William Gordon Dean, then and now or lately railway contractor, and residing in or near Gordon Street of Huntly, in the parish of Huntly, and shire of Aberdeen, or subject to the direction and control of one or other

of them, the formation of a portion of the line or works of the Great North of Scotland Railway Extension, situated between Huntly, in the shire of Aberdeen, and Keith, in the shire of Banff, and there being rock in the said portion of the line of the said railway, situated in or near Park of Kinoir, in the united parishes of Kinoir and Huntly, now called Huntly, and shire of Aberdeen, or part thereof, and recourse being or having been had by the said John Dean and the said William Gordon Dean, or by one or other of them, or by the workmen of the said John Dean, in carrying on the works aforesaid, to the operation of blasting said rock by means of gunpowder, and you, the said James Auld, being employed by the said John Dean, or by the said William Gordon Dean, to act as ganger or gaffer or foreman to the said John Dean in the execution of the said works, or part thereof, and to execute, or take the direction of executing, the said operation of blasting said rock, or part of said rock, situated in or near Park of Kinoir aforesaid, by means of gunpowder; and injunctions or directions having been issued by Archibald Davidson, Esquire, Sheriff of the shire of Aberdeen, in regard to blasting rock and stones in and near the line of the Great North of Scotland Railway, so far as in the shire of Aberdeen, on or about the 26th day of March 1856, whereby the said Sheriff enjoined or directed, that in blasting rocks and stones proper faggots, made of whins, branches, brushwood, or such like, should be always placed over the bore, so as to prevent splinters being thrown up, and whereby the said Sheriff also prohibited contractors and others employed by them in blasting rocks and stones, from using large quantities of gunpowder in the operation termed " bulling," as being dangerous to the lieges; and a copy of said injunctions or directions, containing the injunction and prohibition or directions above mentioned, having been delivered to you, on or about the 29th day of March 1856, by Neil Robertson, then and now or lately chief constable and superintendent of railway police, and residing in or near Keith, in the parish of Keith, and shire of Banff, and by Alexander Cruickshank, then and now or lately railway police constable, and residing in or near Huntly aforesaid, and by William Wallace, then and now or lately railway police constable, and residing in or near Huntly aforesaid, or by one or other of them; and the said John Dean, and the said William Gordon Dean, as acting for the said John Dean, in carrying on the works above libelled, or one or other of them, having ordered or desired you, the said James Auld, as ganger or gaffer foresaid, to adhere to, or comply with, or obey the injunctions or directions above libelled; and it being the duty of you, the said James Auld, in prosecuting the said operation of blasting rock situated in or near Park of Kinoir aforesaid, to adhere to, or comply with, or obey the said injunctions or directions, and to use all due and requisite precautions for the safety of the licges or workmen employed at or near said operation, and to see that the same were adhered to, or complied with or obeyed, or used, by the workmen employed in carrying on the said works; and, in particular, to see or take care that in blasting rocks and stones, proper faggots made of whins, branches, brushwood, or such like, should be always placed over the bore, or blast or shot, so as to prevent splinters or fragments of rock being thrown up, or so as to contract and confine the range of the fragments of rock or stone within safe limits when the explosion should take place, and also that no blasting of rocks or stones, by large quantities of gunpowder in the operation termed 'bulling,' should be used, and in general to use, or see used, all other and similar precautions obviously requisite for the safety of the lieges or workmen Yet, nevertheless, on the 4th day of August 1856, or on one or other of the days of that month, or of July immediately preceding, and at or near a part of the said portion of the said line of railway which is situated at or near Park of Kinoir aforesaid, then and now or lately in the course of formation, you, the said James Auld, did, culpably or recklessly, and in neglect or violation of your duty aforesaid, put, or cause or procure to be put, in the operation calledbulling,' into a rent or crack in the rock at or near Park of Kinoir aforesaid, a large quantity of gunpowder, the particular quantity being to the prosecutor unknown; and you did, culpably or recklessly, and in neglect or violation of your duty aforesaid, fire, or cause or procure or allow the said gunpowder or blast or shot to be fired, and did not place, or see that there were placed,

proper faggots as aforesaid, over the same, and in conscquence of said culpable or reckless neglects or violations of duty of you, the said James Auld, or of one or other or more of them, a splinter or fragment of said rock, weighing ten pounds or thereby, or other considerable weight, was projected or discharged from said blast, and struck, at or near Park of Kinoir aforesaid, John Clark or M'Pherson, now deceased, and then a labourer or workman employed on the said portion of said line of railway, and then or lately be fore residing with Ann M'Robert or Taylor, widow, at or near Old Road, in or near Huntly aforesaid, on or near the face or head, and fractured his skull; in consequence of which injury the said John Clark or M'Pherson immediately, or soon thereafter, died, and was thus culpably killed by you, the said James Auld."

Counsel for the pannel objected-(1.) to the major proposition-Culpable homicide was a well known nomen juris, but the second member of the major proposition, which was exactly equivalent to it, was improper, and appeared to libel on the two distinct crimes. (2.) The injunctions issued by the Sheriff were so completely of a legislative character as to be ultra vires of the magistrate by whom they had been issued; and if so, the violation of them could not constitute a crime. Besides, in the indictment, these injunctions were made so much its essence and groundwork, that if the objection to their competency were sustained, the indictment was irrelevant. (3.) Even assuming that the injunctions had been competently issued, so as to lay the pannel under an obligation to obey them, they were inapplicable to the circumstances. They provided for the placing of faggots, &c., over "bores," but not over "bulls (shots fired by pouring gunpowder into fissures in the rock); and further, the term "a large quantity," as used both in the injunctions and in the indictment, was too vague. It was not even said that too large a quantity" had been used, and the quantity must always be determined by the circumstances of each particular operation.

"

Lord Cowan held the objection to the major proposition untenable. The real point was, whether the minor proposition bore out the charge in the major. The charge was substantially, that the injunctions of the Sheriff having been communicated to the pannel by his employers, he did not, in the discharge of his duty, use due precaution. There could be no doubt of the power of the Sheriff to issue instructions of the kind referred to, when there was danger to the lieges. Farther, the violation of such injunctions did not alone constitute the neglect of duty alleged, although it might render the neglect more culpable. There was a sufficiently relevant case to go to the jury.

ker as his wife. The Court, without laying down any general principle, held the witness, in the circumstances, to be inadmissible. The pannels were all accused of the crimes of theft by housebreaking, in so far as, on the 16th or 17th of June 1856, they broke into Prestonfield House, in the parish of Duddingston, and stole a gold watch, chain and seals, and various other articles, the property of Mary Anne Dick Cunyngham; and May was charged in addition with assault, to the effusion of blood, and injury of the person.

Besides the general plea of not guilty, the following defences were given in by the pannel May:

"1. The pannel pleads not guilty. 2. Further, he says that when the theft, housebreaking and assault charged against him were said to have been committed, he was not at or near the locus delicti, but was in his own lodgings, in the house of William Pearson or Parsons, then a victual dealer in the Grassmarket, Edinburgh."

A list of exculpatory witnesses was given in, among whom was

46

'Mary M'Inally, formerly a lodger in the house of the said William Pearson or Parsons, and now or lately a lodger in the house of Mrs King, 97 Grassmarket, Edinburgh, wife of Joseph King, engineer, formerly in Edinburgh, now in New South Wales."

After the case for the Crown was closed, there were adduced in support of the alibi the following witnesses:1. John Fallon, who proved that May was in the PoliceOffice on 16th June, till about a-quarter to 10 P.M. 2. Mrs Kay, who knew May, and was in his lodging in the Grassmarket on 16th June, about 12 o'clock at night; that the house door was shut, and that he was then going to bed with his coat and shoes off; that Mary M'Inally was there, who lived in the house, and passed for May's wife. 3. Mary M'Inally, on being examined in initialibus for the Crown, deponed,

"I lived with May at his house. Not married regularly. People believed we were. I considered him as my husband, on the ground that I lived with him, and he acknowledged me as his wife in the presence of others. I believed that from acknowledgments I had become his wife. I am called Mrs May. I live in 97 Grassmarket. I decline to say whether I live with a person of the name of Williams."

Objected, for the Crown, that it was clear the witness was the pannel's wife, and that she was therefore inadmissible. If she had depoued that she was his wife by a regular marriage, would that not disqualify, though no other witness was brought to prove it?

Answered-The fact that the witness considers herself the pannel's wife is not sufficient to exclude her. All that she has stated merely goes to constitute a marriage by habit and repute; and it is the statement of an interested party, and entirely unsupported. A witness cannot disqualify herself by stating that the party accused is her husband.

Lord Cowan.-Suppose that she had been tendered as a witness for the Crown, could we have compelled her to give evidence?

Lord Justice-Clerk.-This is a question of very great importance, and also of great delicacy. It is a question of great delicacy, with reference to the exclusion of evidence tendered by the prisoner to establish his plea of alibi; and, secondly, it is one of great delicacy as regards the point whether this witness is or is not the lawful wife of the pannel. And in disposing of the question, it is to be distinctly understood that we take it up entirely and solely on the special facts of this particular case. We give no opinion on the question, whether or not this woman is the man's wife; nor do we give any opinion as to the competency, in the general case, of prov. ing aliunde that the witness is the wife of the pannel.

We are first to attend to the precise facts that have been brought out in evidence. The witness is brought forward and tendered for the pannel. She is his witness, in the strongest sense, brought forward to prove a competent, and, if established by evidence, a very strong defence.

Then the matter is made stronger by the answer to a question put on the part of the prosecutor, with a view to do away with the effect of the previous evidence. The witness is asked -On what ground did you believe that you were his wife?

A question was put which she did not choose to answer, and which, considering the belief which she had that she was this man's wife, it is not wonderful that she declined to answer.

Her statement then is, that she did become the wife of the pannel May, in a manner competent by the law of Scotland. The Court gave no opinion as to whether the witness could have slid into this kind of marriage while lodging in Pearson's house, or whether the acknowledgments to which she relates may have been intended to act as a blind, which, considering the nature of the house in question, does not seem probable. Then, looking to the authorities, the statute says, any husband or any wife shall not be (competent or) compellable to give evidence. Then we have it stated in a book, not, indeed, of authority, but an able and careful digest by a gentleman who has since been appointed to an important office abroad, (Dickson on Evidence), that the proof is equally competent where the marriage is alleged to have been in facie ecclesiæ, and where it has been irregular; and he states a very strong case, and one which, should it arise again, I confess I should wish much to reconsider, where the prisoner took such an objection. The prosecutor there admitted the relevancy of the objection, a proof before answer was led, and the Crown gave up the case. That case was much stronger than anything now before us, where the question is only, whether, on the admissions which this witness has made, we ought to discard her testimony. The question, whether, if the Crown had examined this witness, and she had given the same answers, it would have been the same, is one which I only notice in order to say that I do not regard the two cases as alike; the inducement of the witness to disqualify herself being different in the two cases. It does not follow, as has been argued for the prisoner, that we must allow him to disprove her statements, or, on the other hand, that the Crown would be entitled to a proof of marriage by cohabitation and acknowledgment. But, guarding ourselves against having our opinion applied to any other case than that presented on the record before us, we are of opinion that we cannot admit the evidence of this witness.

Objection sustained.

The jury found May and Fitzclarence guilty, and by a majority, the libel not proven as to M'Cabc.

May was sentenced to transportation, for life and Fitzelarence for 21 years, M'Cabe being assoilzied simpliciter.

Lords Justice Clerk, Cowan, and Ardmillan.-Act. Solicitor-General (Maitland), G. Dingwall Fordyce, A.D.; J. C. Brodie, W.S. Agent.-Alt., for May, C. F. Shand; Macqueen and Bridgeford, S.S.C. Agents-for Fitzclarence, Millar; Macqueen and Bridgeford, S.S.C. Agents for M'Cabe, Anderson; R. and D. Crawford, S.S.C. Agents.-N. Clerk.-(G.R.O.)

8th November 1856.

HIGH COURT OF JUSTICIARY.

HER MAJESTY'S ADVOCATE v. MARY WOOD. Indictment-Relevancy-In a charge against a pannel for drowning her child in the Union Canal, near Edinburgh, it was objected, 1st, to the description of the locus, that the words, "or at or near some part of said canal between Edinburgh and Slateford," was too great a latitude-Objection repelled, in respect that these words were to be construed with the other more particular description of the locus. Objected, 2d, that the words "or in some other way or by some other means to the prosecutor unknown," in the conclusion that the child was murdered by the pannel, were objection

able, as permitting the prosecutor to prove a different mode of death than the one specially libelled-Sustained.

The pannel was charged with the crime of murder, "in so far as, on the 20th day of September 1856, or on one or other of the days of that month, or of August immediately preceding, or of October immediately following, you, the said Mary Wood, did, at or near a bridge called or known as Megget Land Bridge, which crosses the Union Canal, and is situated in the parish of Saint Cuthberts and shire of Edinburgh, or at or near some part of said Union Canal between Edinburgh and Slateford, in the shire of Edinburgh, or at some other place within the said shire of Edinburgh to the prosecutor unknown, wickedly and feloniously attack and assault a female child, then eleven days old or thereby, now deceased, of which you were the mother, and which was then in your charge or custody, the same having no name, or its name being to the prosecutor unknown, and did tie up or wrap up your said child in a piece of cloth, a piece of flaunel, and a towel, or part thereof, along with a stone or other substance, weighing three or four pounds or thereby, and thereafter, time above libelled, did, at or near Mcgget Land Bridge aforesaid, or at or near some part of said Union Canal between Edinburgh and Slateford aforesaid, to the prosecutor unknown, throw or push your said child, so tied up or wrapped up as aforesaid, into the water of said canal; by all which, or part thereof, your said child was immediately or soon thereafter drowned, or was suffocated, or otherwise deprived of life, and was thus, or in some other way or by some other means to the prosecutor unknown, murdered by you, the said Mary Wood."

Counsel for the pannel objected to the relevancy of the indictment-(1.) On account of the vagueness of the language employed in the second member of the specification of the locus-" at or near some part of said Union Canal between Edinburgh and Slateford, in the shire of Edinburgh." This description included a portion of the canal between two and three miles in length, which was by far too indefinite, considering especially that there was no statement that the particular spot was to the prosecutor unknown." (2.) He objected to the use of the words "stone or other substance, weighing three or four pounds or thereby," in the specification of the modus operandi. Under the words " or other substance," every kind of thing in rerum natura might be included, and to such latitude the prosecutor was not entitled. (3.) He objected to the last clause in the specification of the modus of death-"or in some other way or by some other means to the prosecutor unknown." Under these words the prosecutor might prove death by means the most dissimilar to those already specified, as by poisoning, &c. general clause to some such effect was, no doubt, often used in criminal indictments, but its use was wholly at variance with the well established principle, that the prosecutor must distinctly specify the mode in which he alleges the crime was committed, so as to enable the accused to prepare for his defence.-See Arthur, 16th March 1836, 1 Swinton, 124; and Jerdon, 3d May 1837, 1 Swinton, 502.

A

Counsel farther objected to the description of the following productions:-"A stone or other substance, weigh. ing three or four pounds or thereby," and, "part of a dress;"-to the former, for the reasons already stated, and to the latter, because it was really no description at all, it being neither said to be a man's, woman's, child's, or any other kind of dress.

Answered-The first objection could not be sustained, because the clause objected to immediately followed one in which the particular spot was set forth, and the two clauses were to be read together. The use of the words

"or other substance," in the specification of the modus, and the words "part of a dress," in the latter portion of the indictment, were immaterial, and, though usual, might be deleted. As to the objection to the clause, "or in some other way or by some other means to the prosecutor unknown," these were words of ordinary style, and in invariable use, and the Court would take care that the accused suffered no injustice from their employment, as they would not allow the prosecutor to resort to any means of proof of which she had not been sufficiently advertised.

The Court repelled the first objection, but sustained the other in regard to the modus by which the murder was effected, the prosecutor deleting the other expressions which were excepted to.

The relevancy having then been sustained, the case went to trial, when the jury returned a verdict finding the accused guilty as libelled, but recommending her to the mercy of the Crown.

The pannel was sentenced to be executed, but the sentence was afterwards commuted into transportation for life.

Lords Justice-Clerk, Handyside, and Ardmillan.-Act. Solicitor-General (Maitland), G. Dingwall Fordyce, A.D.; J. C. Brodie, W.S. Agent.-Alt. J. B. Nicolson; J. C. Baxter, S.S.C. Agent.-N. Clerk.—(G.R.O.)

12th November 1856. FIRST DIVISION.

JOHN MITCHELL, Pursuer and Advocator, v. JOHN WILLIAM MAJOR, Defender and Respondent; et é contra. Sale-Bona fides-Sequestration-A party agreed to purchase furniture belonging to a bankrupt estate for a specified price, and an assignment of the furniture in his favour was executed by the then trustee and the commissioners, but the deed was not delivered to him, and the furniture remained in the possession of the bankrupt. The trustee was then removed from office by the creditors, and another appointed. The purchaser, in ignorance of this fact, and in bona fide, made certain payments of the price to the old trustee. Interdict granted at his instance against a sale of the furniture by the new trustee.

In June 1855 William Dodds was acting as trus tee on the sequestrated estate of J. B. Gibb and Co. and William Gibb. In that month the pursuer Mitchell made an agreement with him for the purchase of the furniture of the bankrupt William Gibb, at the valuation price of £61:18:6, and granted a letter obliging himself to pay that sum. The furniture was not delivered at the time, but remained in the house occupied by, and in the natural possession of, the bankrupt. On the 15th and 16th of June, Dodds, the trustee, and the commissioners, executed an assignment of the furniture in the pursuer's favour, but the document was not delivered at the time.

Matters being in this condition, and before the pursuer had made any payment of the price, the creditors, after the usual Gazette notice, called a meeting, which was held on the 2d July, at which the trustee was removed from his office, in which removal he acquiesced. Three days afterwards the pursuer, apparently in bona fide, and in ignorance of Dodds' removal, made payment to him of the sum of £20 to account of the price of the furniture, Dodds having represented to him that he wanted the money to pay the rent of the