HIGH That on Saturday, 25th August 1923, about 2 COURT o'clock afternoon, he was seen by two witnesses, or JUSTI. Sergeant M'Intyre and Constable M'Farlane, to come CIARY. along Clyde Street, Motherwell, from the direction of the town of Hamilton in a motor car; that the Williamson v. car turned into Hamilton Street, along which it Wright. proceeded; that on approaching the junction of Hamilton Street and Watson Street it slowed down; March 7, 1924. that when turning into Watson Street a man named Hugh Kelly, who had been convicted of street betting on 27th July 1923, approached it, and passed to the appellant an envelope or a bundle of papers; that the appellant, who was sitting in front beside the driver of the car, took the papers and placed them behind him in the car, after which the car moved out of sight. That at 2.25 o'clock afternoon the car was observed by Sergeant M'Intyre and Constable M'Farlane returning along Hamilton Street with the appellant seated in it as before; that when the car was about to turn into Clyde Street, Sergeant M'Intyre, in the presence of Constable M'Farlane, stopped it, and asked the accused to accompany him and Constable M'Farlane to the Police Office; that the accused answered "All right, we will go there"; that the sergeant and constable stepped into the car, which was thereupon driven to the Police Office; that the appellant walked a few steps to the door of the Police Office, and then retraced his steps to the car, into the back of which he reached, and took out an attaché case; that Sergeant M'Intyre, in the presence of Constable M'Farlane, said to him-referring to the attaché case: Is that your property?" and on receiving the reply that it was, Sergeant M'Intyre took possession of it. That the appellant was searched, and on him was found a book of rules and ready reckoner for use in betting transactions, and £1, 5s. 7td. in money. That said attaché case, book of rules, and money were produced at the trial along with the undernoted literature found in the attaché case, viz: 1. Envelope containing nine slips bearing the names of horses and sixty-four football coupons with envelope in which contained. 2. Sixty-four slips with the name of horses. 3. Sixty-seven slips with the names of horses, and envelope in which contained. 4. Eight slips with the names of horses, and envelope in which contained. 5. Eight slips with the names of horses and money marked opposite them. 6. One hundred and thirty-eight slips with horses' names thereon, and envelope in which contained. 7. One hundred and forty-four football coupons. 8. One hundred and fifteen football coupons marked for matches to be played on 25th August 1923. 9. One hundred and sixteen football coupons. 10. Seventy-eight football coupons. 11. One hundred and forty-five football coupons (new and unmarked). 12. Receipt for £10 issued to Hugh Kelly. On said 8th September I found that, on the facts proved as above, the appellant was guilty of loitering in Watson Street in the said burgh, being a street within the meaning of the Street Betting Act, 1906, on 25th August 1923, for the purpose of receiving (b) in the case of a second offence be liable, on conviction under the Summary Jurisdiction Acts, to a fine not exceeding twenty pounds. The case was heard before the High Court of Justiciary on 7th March 1924. There was no Argued for the Appellant: In order to constitute a crime under the Street Betting Act 1906 (6 Edw. VII. cap. 43), section 1, there must be loitering in the street. evidence of loitering in the present case. Loitering involved an idea of continuity and was associated in the Act with the term "frequenting." Fairfoul v. Somerville (1895, 2 Adam 13, 23 R. (J.) 6) shewed that the appellant was not guilty of the offence charged. Argued for the Respondent: The appellant was guilty of " loitering," which meant to travel indolently and with frequent pauses. Fairfoul V. Somerville (cit.) was a decision to the effect that crawling was not loitering and did not affect the present question. On 7th March 1924 the Court answered the question of law in the negative. Lord Anderson.-This is a case which has been stated by one of the magistrates of the combined burghs of Motherwell and Wishaw. It arises in connection with the conviction of a bookmaker's clerk for the offence which is contained in the complaint. The complaint shews that the charge against the appellant is that on a given date-25th August 1923— in a specific street, namely, Watson Street in Motherwell and Wishaw, he contravened the 1st section of the Street Betting Act, 1906, by loitering there and then for the purpose of receiving bets, and that the offence charged was a second offence. The findings of the magistrate shew that, in COURT) OF JUSTI CIARY son-v. the district in which he exercises jurisdiction, then loitering for any purpose whatever. HIGH the bookmaking hierarchy consists of these Speaking for myself, I am quite clear that a grades: at the top there is the bookmaker, person may loiter in a motor car; but, in the the high priest of the business; next there are present case, as I have stated, I do not think assistants, of whom the appellant is one; that there was loitering in the sense of the Act. William then there are sub-agents, and, of course, I, therefore-although I reach the conclusion Wright, finally there are the victims. The duties and with a certain measure of regret-suggest to modus operandi of this assistant, as described your Lordships that the question of law should March to 192.1 by the magistrate in the stated case, are to be answered in the negative. travel in a motor car through the streets of the burgh, to visit the dwelling-houses of known Lord Hunter. I also agree that a negative agents of bookmakers, to call at the stances answer should be given to the question put. of those agents on the streets, and to take The appellant was charged with having loitered delivery from them of what the magistrate in a street upon a certain date, namely 25th considered were bundles of betting lines. But August 1923, for the purpose of betting. But, the specific offence with which the appellant in considering whether he loitered or not, the is charged is that to which I have already purpose he had in view may be left out of alluded, and the question of law which is put account. to us is whether the facts proved warranted a conviction for that offence. states them in the stated case. They amount Now, what are the facts that bear upon the question as to whether upon this particular The legal point, then, is whether, on the evi-occasion, with which alone the magistrate had dence, the magistrate was justified in convict- to deal, the appellant loitered? The magistrate ing the appellant of loitering for the purpose of receiving bets. That he was in the burgh for the purpose of receiving bets, and that he did receive bets on that day I have no doubt whatever. And I think that the magistrate was well justified in drawing the inference that bets were received on that occasion. But that is not the offence charged. The conclusion I have arrived at is that there was no evidence to justify the magistrate in holding that the appellant was loitering on that occasion and, therefore, that the question in law ought to be answered in the negative. I doubt myself whether the terms of the Street Betting Act are apt to cover the case of anyone other than a pedestrian. It is hardly appropriate to say that a man who is in a motor car in which he is being driven about is loitering, where the other word that is used is the word "frequent " and the application of the words is to an individual. I should think there is a great deal to be said in favour of the view that the only mode of committing this statutory offence is that you should do it upon your feet and not when you are in a vehicle being driven by someone else. After all, when you are con The term loitering is, perhaps, most appropriately applied with reference to a pedestrian, and I am quite satisfied with the meaning which Mr Keith assigned to it, namely, that loitering is just travelling indolently and with frequent pauses. That, in my judgment, involves an idea of a certain persistence or repetition. Now, in the present case, all that is found against the appellant is, that he was being driven in a motor car by another person, that as they approached the junction of Hamil-struing a penal statute, you have to submit the ton Street and Watson Street and were turning into Watson Street, a man named Hugh Kelly approached the car and passed to the appellant an envelope or a bundle of papers, and that the appellant, who was sitting in front of the car beside the driver, took the papers and placed them behind him in the car, after which the car went out of sight. There was no persistence or repetition in what was done on that occasion as described by the magistrate. There was one instance of slowing down, which was the appropriate manoeuvre to exercise when turning the corner of a street. And, accordingly, I reach the conclusion that the magistrate was not justified in holding that the appellant was words used to a strict construction. You have In the present case it is not necessary to occasion. In no sense of the word "loitering does that amount to it. I agree with what or JUSTI. Lord Anderson said, that "loitering" is a word CIARY. FIRST DIVISION. and Sands.) about the interpretation of which there may be (The Lord President, Lords Skerrington, Cullen, William- some difficulty, but it means something more, son at all events, than slowing down or stopping on a single occasion. Wright. March 7, 1924. The Lord Justice-Clerk (Alness).-I agree. The charge in this case is limited both as regards 80. 9th February 1924. M'Carroll v. M'Kinstery and Blackwood. place and time. The place is Watson Street, Process-Res judicata-Reduction of decree Fraud by and the time 25th August. The only relevant findings of the magistrate with regard to what happened at that place and at that time are these that a certain car turned into Hamilton Street, along which it proceeded; that on approaching the junction of Hamilton Street and Watson Street it slowed down--quite properly and that it disappeared from view. I disregard the incident which occurred at the corner because, in my view, while it may bear on the purpose of the manoeuvre, it does not bear on the manœuvre itself. The question arises: Is that loitering? The idea seems to me to be well-nigh fantastic. The case seems to me a fortiori of the case of Fairfoul (1895, 2 Adam 13, 23 R. (J.) 6), which was a decision to the effect that the street offence of crawling was not loitering. In giving judgment in that case Lord Young made some observations with regard to what loitering means, which, I think, have a bearing upon this case. He said: "I think the drivers of private carriages also may be prevented from impeding the traffic by loitering in the street-stopping to chat with other drivers, gossiping, and idling. If the charge here had been that the driver was idly stopping to chat or smoke with a friend, the police might have interfered and ordered him to get on; they might have told him that loitering was forbidden and that he was loitering, and if he had refused to comply, might have had him prosecuted quite properly.' Loitering, in my view, connotes the idea of lingering; and that idea is absent in the present case. It may be that the result of the decision which your Lordships are pronouncing may render evasion of this statute more easy than it was before. If that be so, it is a matter for the Legislature and not for us. On the question whether the offence may be committed by a motorist as well as a pedestrian, I desire to reserve my opinion, inasmuch as that question was not fully argued before us. party-Fraud extrinsic to the proceedings in the former action-Ownership of shares-Averment by pursuer that he had since decree regained possession of a lost back-letter by one of the defenders acknowledging that the shares were held for him-Averment that a second back-letter by the same defender, purporting to acknowledge that the shares were held for the pursuer only in security and in reversion for the other defender, produced in the original action, had been fraudulently concocted by the defenders Averment that the decrees in the original action had been obtained by this fraud of the defenders and by their false and fraudulent evidence that the second backletter was the only one signed relative to the sharesOpinions per curiam that the averments were not relevant to support the conclusions for reduction of the decrees in the former action on the ground of fraud-Lockyer v. Ferryman (1877, 4 R. (H.L.) 32) and Mackintosh's Tr. v. Stewart's Trs. (1906, 8 F. 467) approved--Observations (per Lord Sands) upon the rule enunciated in these cases. Process-Reduction-Reduction of decree-Res noviter veniens ad notitiam-Documentum noviter repertum -Relevancy of averments-Ownership of sharesBack-letter by one of the defenders, acknowledging that the shares were held by him for the pursuer in security of a loan and for the other defender after the loan was paid, produced and founded upon in original action-Averment by pursuer that he had since decree regained possession from X of a lost backletter by the same defender acknowledging that the shares were held for him-Averments that he had given the back-letter with other papers to X for safe custody, that he got back a bundle of papers from X and supposed the back-letter was amongst them; that when he wanted the back-letter for the purposes of the action he could not find it and asked X for it; that failing to get it from X he concluded that it had been destroyed in a fire in his premises; and that the reason for X's retention of the back-letter was that it had been erroneously backed with X's name instead of the defender's-Held (dissenting Lord Skerrington) that the averments were averments of res noviter veniens ad notitiam relevant to support the conclusions for reduction. Reclaiming Note against an Interlocutor of Lord Blackburn. Peter M'Carroll, Glasgow, brought an action against James M'Kinstery, turf commission agent, Elderslie, and Dugald Blackwood, ironfounder, Johnstone, concluding, inter alia, for Counsel for Appellant, Gibson; Agents, reduction of the decrees in a former action at his Balfour & Manson, S.S.C.-Counsel for Re-instance against the same defenders, all as more spondent, Gentles, K.C., Keith; Agents, John fully set out infra. C. Brodie & Sons, W.S. M. G. F. The following narrative of the circumstances is taken from the opinion of the Lord Ordinary (Blackburn). In this action the pursuer M'Carroll seeks to reduce four interlocutors pronounced in a former action, dated June 1917, at his instance against the defenders in this action, M'Kinstery and Blackwood. These four interlocutors are (Primo) an interlocutor of the Lord Ordinary, Lord Ormidale, dated 5th April 1920, in which he assoilzied the defenders; (Secundo) an interlocutor of the First Division, dated 1st June 1921, adhering; (Tertio) and (Quarto) interlocutors of the First Division, dated 16th May 1922, decerning for sums of £318, 18s. 11d., and £522, 18s. 9d., as expenses in favour of the first and second-named defenders respectively. In the former action referred to, the pursuer sought to have it declared that certain preference and ordinary shares in J. Fyfe Donald & Co. Ltd., which stood in the register of shareholders in the name of the defender M'Kinstery, were truly the property of the pursuer. It was not matter of dispute that in or about the year 1908 the pursuer had advanced a sum of £1000 to the company, which was then in financial straits, and that Blackwood, who was the managing director of the company and the person chiefly interested in its success, then transferred to the pursuer the shares in question. Nor was it disputed that in June 1909 the pursuer of new transferred the shares to M'Kinstery, and that they were held by M'Kinstery as trustee. The pursuer averred that having himself got into financial difficulties in 1909 he made the transfer to M'Kinstery to protect the company from becoming involved in his own difficulties, and that M'Kinstery at the same date granted him a back-letter acknowledging that he held the shares for behoof of the pursuer. This back-letter the pursuer had lost prior to the raising of the former action, and he was unable to produce it at the proof. The defenders denied the pursuer's story, and in particular M'Kinstery denied that he had ever granted any such back-letter as was founded on by the pursuer. They averred that the shares had originally only been transferred to the pursuer in security of his advance of £1000 to the company, and that they were transferred by him to M'Kinstery to be held for the pursuer in security of his advance, and for Blackwood in the event of the advance being repaid, an event which had occurred prior to the raising of the former action. In support of their case they founded on a letter of acknowledgment said to have been granted by M'Kinstery to Black wood on 1st June 1909, setting forth that he held the shares on the above terms. This letter of acknowledgment was not produced in the former action as it too had gone amissing in the course of an earlier action relative to these shares, raised in 1916 by Blackwood against the pursuer, which does not appear to have come to judgment. In this earlier action the letter itself was lost while in the custody of the pursuer's advisers, but a copy, admittedly a true copy, was available, which was produced in the subsequent action, the decrees in which are now sought to be reduced. This letter of acknowledgment, according to the defenders' evidence in that action, had been signed in the presence of the pursuer, but the pursuer maintained that he had never seen or heard of it until it was produced by Blackwood in the earlier action against him in 1916, by which date the defenders might have been well aware that his own back-letter had been lost. V. M'Kinstery and The pursuer now avers (Condescendence 20), 1ST DIV. that on or about 1st September 1921, after the M'Carroll reclaiming note in the former action had been disposed of, he recovered the original back-letter on which he founded. It is said to have been dis- Blackcovered in the safe of a former business partner of wood. his own, Francis M'Avoy, and to have presumably found its way there owing to a clerical error in the February 9, backing of the letter. Founding on this discovery, the pursuer moved in the Division for leave to lead fresh proof, and this motion was refused. He then applied to the House of Lords for leave to appeal in forma pauperis, and this application was also refused. He has now resorted to the present action, and pleads that the interlocutors having been obtained by fraud as "condescended on," they should be reduced. The question I have to decide is whether the fraud condescended on is such as to entitle the pursuer to the proof which he asks, or whether the action should be dismissed as irrelevant, and I have found the question one of some difficulty. 66 "Dear Sir,-With reference to the transfers executed by you in my favour during this month of (1) 200 Preference Shares of £1 each fully paid up, numbered 4501/4700 both inclusive, conform to certificate No. 11, dated 30th July 1908, and (2) 500 Ordinary Shares £1 each fully paid up, numbered 3501/4000 both inclusive, conform to certificate No. Co. Ltd., of the Johnstone Foundry, Johnstone, it 2, dated 30th July 1908, both in J. Fyfe Donald & is hereby understood that although said transfers these shares are held by me for your behoof and I were executed by you in my favour ex facie absolutely, undertake to reconvey the same to you at any time you may require.-Yours faithfully, 66 Adopted as holiograph." (sic) "JAS. M'KINSTERY." COND. 16. Upon 28th March 1916 the pursuer raised an action in the Court of Session for repayment of the said debt of £1000, with interest thereon from 4th May 1909. He obtained decree for the principal amount of the said debt and interest on 2nd June 1916, and for the expenses of the said action on 14th July 1916. These decrees were granted with consent of the defender Blackwood after negotiations during which he conceded the pursuer's right to the said dividends and interests. . COND. 17. On 22nd July 1916 the defender Blackwood raised an action against the pursuer and the 1924. V. M'Kin 18 Div. other defender for, inter alia, declarator that the adversely commented upon by the Lord Ordinary, shares in question were the property of the defender M'Carroll Blackwood, and subsequently in that action he prostery and duced and for the first time founded on a pretended Black- letter of acknowledgment by the defender M'Kinstery wood. in the following terms: "I, James M'Kinstery, acknowledge that I hold "Dugald Blackwood, Esq., The said pretended letter of acknowledgment bears to be addressed by one defender to the other, and the pursuer is no party thereto. The pursuer in fact never saw or heard of the existence of such letter till it was produced as aforesaid. Its terms are untrue in fact, except in so far as they bear that any right of the defender M'Kinstery was not in property, but in trust. The pursuer believes and avers that the said pretended letter was not written or signed on the date it bears, but at some much later date and after the settlement of the said action raised on 28th March 1916, with the intention on the part of these defenders of taking advantage of the state of the share register and thereby, in fraud of the rights of the pursuer as known to them both, of defeating his right as owner to the now considerable value of the said shares. In any event, the said letter of acknowledgment was not made or granted in the presence of or with the knowledge of the pursuer, and it was not in fulfilment of any agreement between the three parties whose rights it bears to be concerned with, Further, the granter of the said letter was not vested | even ex facie in the property of said shares at the time of granting the same by any deed or deeds of trust. So far as not coinciding with the pursuer's averments, the statements in answer are denied. Explained that the said letter went amissing accidentally.. The loss of the said letter has deprived the pursuer of the opportunity of proving, by examination of the ink and paper, the age of the handwriting thereon. but upon 5th April 1920 his Lordship with hesitation assoilzied the defenders upon the ground that there was no confirmation of the pursuer's oath to the effect that he had held any back-letter by the defender M'Kinstery relating to the said shares. COND. 19. A reclaiming note having been presented by the pursuer to the First Division of the said Court on 12th May 1920, the defender M'Kinstery, by minute lodged in the said action in October 1920, stated that he did not propose to take part in the for expenses. Thereafter their Lordships of the hearing in the Inner House except upon his claim First Division adhered, on or about 1st June 1921, to the said pretended interlocutor. It is believed and averred that the refusal of the reclaiming note was due only to the fact that the pursuer was unable to produce the back-letter founded on by him. COND. 20. On or about 1st September 1921 the pursuer was informed by Francis M'Avoy, spirit merchant, Cumberland Street, Glasgow (a former partner in business with the pursuer), that the latter had in his safe a document relating to shares and signed by the defender M'Kinstery. Upon the following day the said Francis M'Avoy took from his safe and handed to the pursuer the back-letter quoted in Article 10 hereof. In and since 1916 the pursuer had searched in his repositories for the said letter. His failure to discover it earlier than he did is due to the fact that the backing on the letter erroneously purports that the letter was granted by Francis M'Avoy in favour of the pursuer. Owing to that error the letter had been retained by M'Avoy under the belief that it related to certain dealings between him and the pursuer. It had been handed by the pursuer to M'Avoy with other papers for safe custody in the autumn of 1909, when the pursuer was leaving Glasgow for Ireland on account of ill health. When the pursuer returned to Glasgow he received back from M'Avoy what both of them believed to be the whole papers originally handed over. When the pursuer searched his repositories for the back-letter in 1916 he could not find it. He asked M‘Avoy if he had any papers belonging to him and M'Avoy informed him that he had returned the whole papers. The pursuer thereupon imputed the loss of the back-letter to a fire which had taken place in his premises on 29th December 1911 and which had, in point of fact, destroyed some of his other papers. In these circumstances the pursuer was reasonably ignorant of the existence of said backletter at and subsequent to the commencement of the proceedings which resulted in the interlocutors sought to be reduced. Explained that after the discovery of the said back-better in September 1921, the pursuer and his advisers afforded without delay full facilities to the defenders and their advisers, including the said Andrew Alston Cameron, for examining the said back-letter. COND. 18. On 7th June 1917 the pursuer raised in the Court of Session an action against the defenders. The conclusions of the summons therein were in the same terms as those of the present summons, except ing the conclusions for reduction of the pretended decrees in that action. After sundry procedure in the said action, proof was led in July 1919 before COND. 21. The pretended interlocutors or decrees the Lord Ordinary (Lord Ormidale). Andrew sought to be reduced were obtained by fraud on the Alston Cameron, the defenders' law agent, was the part of the defenders. When the defenders became first witness for the defenders. They heard his aware, as they did early in 1916, that the pursuer was evidence and thereafter entered the witness-box. unable to produce the back-letter referred to in Article 10 Inter alia, the defender M‘Kinstery denied falsely, hereof, the defenders, acting in concert, conceived a upon oath, that he had signed more than one back-scheme for the purpose of deceiving the Court and de. letter relating to the said shares. His testimony, priving the pursuer of the shares which they well knew as well as that of the said Andrew Alston Cameron were his property. In particular, they fraudulently and the other defender (Dugald Blackwood) was concocted the pretended letter of acknowledgment |