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HIGH

mitted. Counsel referred to Income Tax Act, COURT 1918 (8 & 9 Geo. V. cap. 40), Rules Applicable to Schedule B, No. 6; Latchford v. Kelsey, (1907) 96 L.T. 620; Cook v. Hobbs, [1911] Lithgow v. 1 K.B. 14.

OF JUSTI.
CIARY.

What is proved to have taken place on two out of the four occasions libelled is that, when moving his domestic establishment from Langbank to Ormsary, or taking it back again from Ormsary to Langbank, the motor truck Foster. Argued for the Respondent: Personal lug-in question was used for the conveyance of November 27, gage and domestic servants could not be his domestic servants and some quantity of

1929.

74 J.P.R. 223.

On 27th November the Court pronounced the following interlocutor :

carried in an exempted vehicle, because such personal luggage.
conveyance could not be considered a con- Now, the only question I feel called upon
veyance for the use of trade or husbandry. to decide is whether that employment of the
The appellant must clearly bring himself motor truck accords with the condition that it
within the section in order to obtain exemption. should be used solely in connection with the
The strictness with which such an act must be conveyance of goods or burden in the course
construed was seen from the provisions of the of trade or husbandry. It seems to me that it
Customs and Inland Revenue Act, 1872 (35 does not. If anybody who engages in hus-
& 36 Vict. cap. 20), section 6, which expressly bandry chooses of his own free will — or is
allowed a farmer to take his family to church compelled by the fact that he also carries
in an unlicensed vehicle. Counsel referred to on some different vocation elsewhere-to live
Moore v. Lewis, [1906] 1 K.B. 27; Strutt v. for a part or parts of the year away from
Clift, [1911] 1 K.B. 1; Egan v. Floyde, (1910) his farm, and therefore finds it necessary
to undertake a certain amount of travelling
in order to visit the farm from time to
time and look after it, those journeys, however
they may be described, are not journeys
in the course of trade or husbandry. This
would appear very obvious in the case of
the appellant's own journeys between Renfrew
and Ormsary. How can it be said that the
transit of his domestic servants, or the convey-
ance of his or their personal luggage, over a
stage of the same journey-namely, the stage
between Ardrishaig and Ormsary-stand in any
different position? Accordingly, the
the main
question in the case can be answered in a sense
favourable to the conclusion reached by the
Sheriff-Substitute without raising any question
of general importance or interest at all.

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Find in answer to the question in the case that on the facts proved and on a sound construction of the statute libelled the SheriffSubstitute who tried the case was entitled to hold that the use by the appellant of the said ton truck chassis was not a use 'in connection with the conveyance of goods or burden in the course of trade or husbandry' within the meaning of section 13 (4) of the Finance (No. 2) Act, 1915; dismiss the appeal, and decern.'

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The Lord Justice-General (Clyde). In the discussion of this case some questions of wide application were raised; but I think a decision can be reached upon the particular facts on which the present case arises. It is not therefore necessary—and I do not propose-to | decide any general question.

The appellant is a shipbuilder residing at Langbank, near Renfrew. He is also the owner of a farm at Ormsary, some 12 miles distant from Ardrishaig, which he farms with the assistance of a farm manager during his absence. He spends a part or parts of every year in residence at Ormsary, where he keeps, inter alia, a ton motor truck. This motor truck was originally purchased in October 1921, and import duty was paid on it under section 12 (1) of the Finance (No. 2) Act, 1915 (5 & 6 Geo. V. cap. 89). The appellant in April 1922 obtained repayment of this import duty upon a statutory declaration and undertaking that the motor truck was constructed and adapted for use, and had been and would be used, solely in connection with the conveyance of goods or burden in the course of trade or husbandry. These words repeat those which are used in section 13 (4) of the Finance (No. 2) Act, 1915.

Some criticism was made on the form of the complaint; but when the complaint is looked at I do not think there is any substance in that criticism. The complaint recites that the person accused had received repayment of the import duty in respect that the motor truck was to be devoted to the single purpose of conveyance of goods or burden in the course of trade or husbandry. Then the charge is that the motor truck was used for purposes for which the appellant was not entitled to use it. That can only mean for purposes other than in connection with the conveyance of goods or burden in the course of trade or husbandry; and the use actually made is specified, namely, for the conveyance of passengers. The criticism on the complaint is that the word "burden" might include farm servants who were being conveyed for some proper purpose of husbandry. Such farm servants, it was said, might be passengers within the meaning of the complaint. But even if it be conceded that such farm servants might be described as passengers," it is

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Lord Cullen.-I am of the same opinion. I concur in what your Lordship has said regarding the form of the complaint, and do not desire to add anything.

The legitimate use of the motor truck in question was attended with two with two specific conditions. It fell to be used solely (first) in connection with the conveyance of goods or burden, and (second) in the course of trade or husbandry. I think the case may be disposed of with reference to the second of these conditions. The appellant's contention in that -connection is that the use made of the motor truck on the occasions to which the stated case relates was one made solely in the course of husbandry. I do not think that is true in fact. It appears that the appellant, while he has the farm at Ormsary in his own hands, does not ordinarily reside there in order to devote himself to the course of husbandry, but ordinarily resides at Langbank in Renfrewshire, he being a shipbuilder there. From time to time he pays visits to, and stays at, Ormsary in the mansion-house. His journeys to and fro do not seem to me truly to arise at all in the course of husbandry at Ormsary, but to take place for a reason extraneous thereto, namely, that the appellant chooses to reside ordinarily at Langbank. These journeys are no necessary or natural incident of the carrying on of husbandry at Ormsary, but are a personal affair connected with the appellant's choice of residence away from the farm, whence it arises that, when he desires temporarily to participate in the course of husbandry at Ormsary, he has to journey thither from Langbank and, when thereafter he temporarily abandons that course of husbandry in favour of life at Langbank, he has to make the return journey. If the appellant's contention were sound, it would seem to me to follow that all the expenses of his journeys to and from Ormsary would form a proper deduction in accounts made up to exhibit the annual value value of the farm of Ormsary, regarded per se as the subject of a farming business. But this would, I think, be manifestly unsound. In my opinion the uses of the motor truck, to which the stated case relates, were not uses made in the course of husbandry; but, even if they could be said to have been so in some degree, I am unable to see how it can

be predicated of them that they were made solely in the course of husbandry.

HIGH COURT OF JUSTICIARY.

1993.

Lord Sands. I am of the same opinion. I should not like it to be understood that in Lithgow v. Foster. my view journeys to and from a distance might not be ancillary to the business of a farm November 27, as such. There might be no house on the farm and the farmer might be obliged to reside at a distance. The circumstances of the present case are quite different from that, and I am of opinion that in the circumstances as stated by the learned Sheriff-Substitute he was entitled to find that the use of the motor truck in question was not ancillary to the complainer's business on the farm.

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Robert John Brown, school teacher, the School House, Makerstoun, parish of Makerstoun, Roxburghshire, presented a bill of suspension to the High Court of Justiciary against a conviction and sentence whereby the Sheriff of Roxburgh, Berwick, and Selkirk (Chisholm, K.C.) found the complainer guilty on a charge which set forth :

You are charged at the instance of the complainer that on Wednesday, 11th July 1923, in a classroom within the school at Makerstoun, parish and county foresaid, you did assault Thomas Ballantyne, aged six years, son of and residing with George Ballantyne, ploughman, Galalaw, Kelso, and did strike him on the face with your hands, and did beat him with a pair of tawse, and with your hands on the hips and thighs, whereby he was injured in his person.

HIGH Answers were lodged thereto by Sydney in the circumstances, was not intimated to him. COURT Hilson, Procurator-Fiscal, Jedburgh.

OF JUSTI

CIARY.

Brown v.

The complainer stated:

STAT. 1. On 4th August 1923 the complainer was Hilson. served with a complaint at the instance of the respondent, in the following terms: [recited supra]. The November 24, 1928. complainer was cited to appear to answer to the said complaint before the Sheriff Court at Jedburgh on 23rd August 1923.

STAT. 2. The complainer appeared in person on the said 23rd August, and the complaint was heard before the Sheriff. The complainer had not had legal advice or assistance before the said hearing, and had no such assistance at the hearing. The complainer pled not guilty.

STAT. 3. The Sheriff, after hearing the evidence and the speeches of the respondent and the complainer, found the accused, the present complainer, guilty as libelled, and sentenced him to a fine of ten pounds, or, in default of payment, to imprisonment for fifteen days. The complainer did not ask for time to pay, and was incarcerated until the fine was paid two days after sentence.

STAT. 4. It was well known to the respondent when he framed the said complaint that the present complainer was the head teacher of the said school, and that the said Thomas Ballantyne was a pupil therein ; that a report was made to the complainer that the said Thomas Ballantyne had been guilty of serious misconduct in a class in which he was a pupil, while the said class was under instruction; that because of the said report and immediately thereafter the complainer took the said Thomas Ballantyne into his (the complainer's) classroom, and inflicted punishment on him; and that the said punishment was the alleged assault referred to in the complaint. These facts were proved at the trial. STAT. 5. The said complaint was lacking in specification, and failed to aver the commission of the crime or offence with which alone the complainer could in the circumstances properly be charged. It was the duty of the respondent, in framing the said complaint, to specify the following particulars, which were well known to him-that the accused was the head teacher in the said school, and that the said Thomas Ballantyne was a pupil therein, that the alleged assault had been committed within school hours, and that it was punishment for an alleged offence against school discipline which the said Thomas Ballantyne had committed. It was also necessary for him in framing a proper charge against this com- | plainer to aver that the said punishment was excessive. No one of these particulars was given in the said complaint. The said complaint charged the present complainer with a crime the essential element of which was the intentional striking of the boy, not the different and more serious offence, and the one with which it might be competent to charge a school teacher in the circumstances with which the said complaint dealt, viz. the offence in which the excessive nature of the striking was the essential element. In any event, the said complaint was partial, distorted, and misleading.

STAT. 6. Further, in consequence of the said omissions, the present complainer was seriously misled and prejudiced in his defence, as the true offence for which alone he could be charged and tried,

He did not cross-examine a medical witness produced by the respondent, nor did he lead evidence of which he had knowledge on the question of the excess and effect of the said punishment. He did not produce evidence, as he could have done, as to the boy's activities and exertions during the said 11th July after the said punishment had been inflicted. This was done by him in the belief, induced by the form in which the respondent had framed the said complaint, that he was charged with a common assault, not the different offence that he, being a school teacher, in the performance of his duty, had exercised his powers of discipline in a cruel and savage manner. The misleading and distorted form in which the said complaint had been drawn directed his attention to the question of his striking the boy merely, and diverted his attention from the true question which alone should have been before the Court: Had the punishment inflicted been excessive and cruel ?

STAT. 7. The complainer was accordingly found guilty as libelled on a complaint which was lacking in specification, and which failed to aver the commission of the crime or offence for which alone the complainer could properly be charged or tried. He has been convicted and sentenced in respect of the said finding, and has suffered, and will continue to suffer, great prejudice thereby. Further, the said complaint and the proceedings following thereon were in the circumstances and in the respects herein stated improper, irregular, and oppressive, to the great prejudice of the complainer in his defence to the said complaint, and in the result of the trial.

The respondent stated, inter alia:

4. Admitted that the respondent knew that the complainer was head teacher of said school, and that the said Thomas Ballantyne was a pupil therein. Quoad ultra denied, except in so far as coinciding with the following statement of facts proved at the trial: (1) The teacher, the witness Margaret Wilson, usually in charge of said class was absent on leave, with consent of the complainer, and the complainer had placed his daughter, Agnes Brown, a girl aged ten years, in charge of two classes, numbering sixteen and eighteen respectively. (2) During the course of the forenoon Betty Fairbairn, a pupil (aged six years) in one of said classes, in which the said Thomas Ballantyne was also a pupil, complained to the said Agnes Brown that the said Thomas Ballantyne had bitten her on the wrist. (3) The said Agnes Brown, on the strength of this pupil's statement, as to the truth of which she made no enquiry, and which was held by the Sheriff not to have been proved, after the classes of which she had been put in charge had gone out into the playground, went to her father, the said complainer, and reported the matter to him. (4) The complainer thereupon told the said Agnes Brown to tell the said Thomas Ballantyne to come to him, and upon his refusal to do so, he himself went to the playground, seized the said Thomas Ballantyne by the coat collar, dragged him into the classroom in said school, laid him across a chair, beat him with the tawse and struck him on the face and head with his hands; the boy struggled and fell off said chair on to the floor, and when there the complainer again struck him with the tawse and with his hands. He then picked him up from the floor, put him on a

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chair and again thrashed him with the tawse in a vindictive and savage manner. Thomas Ballantyne was a boy of six and of slight physique, and the punishment inflicted upon him was excessive. (5) The complainer so acted entirely on the report of the said Agnes Brown, and without personally making any enquiries of the said Thomas Ballantyne as to the truth of the allegation, or questioning the pupil, or examining the wrist alleged to have been bitten. This was admitted by the complainer in cross-examination. (6) The said Thomas Ballantyne, on going home that afternoon, at once informed his mother of what had occurred, and that he was suffering great pain. In consequence of his complaint he was examined the same night by Dr Macdonald, Kelso, who found the following injuries to his body, viz. on the left buttock, four red, raised weals, ranging from to inch wide by 6 inches long; on the left thigh (outside) three red, raised weals, inch by 4 inches; on the right buttock, four red, raised weals, in. by 5 inches; and on the right thigh (back) two red, raised weals, inch by 3 inches. Explained that Dr Macdonald stated in answer to the Sheriff that in his opinion these injuries indicated the use of undue severity in punishment, and that, in the case of the boy in question, who was slimly built, and six years of age, the punishment was excessive and much too severe, no matter what the offence was.

5. Denied. Explained that the complainer stated no objection to the complaint on the ground that it was irrelevant or lacking in specification.

HIGH COURT

CIARY.

to his inexperience of such cases to bring out all the
points favourable to him. The complainer antici-
pated, however, that the facts as disclosed to the OF JUSTI
police in the statements taken by them would be
fully brought out in the Court. Unfortunately, Brown v.
much that was material was omitted, but the facts Hilson.
as stated in the answers are partial, and do not November 24,
fairly represent the case as brought out in evidence.
With regard to the answers, the complainer has to
make the following specific replies:

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4. (1) The witness Margaret Wilson had four classes under her charge. In the circumstances narrated, the complainer appointed his daughter, Agnes Brown, to hear the lessons of the two younger classes. These two classes together numbered sixteen pupils. The two older classes, numbering eighteen pupils, were heard by an older girl, the witness Ella Fortune. The whole classes were under the general supervision of the complainer. (2) Admitted. Explained that the witness James Strother stated in evidence that he heard Betty Fairbairn complain to Agnes Brown that she had been bitten by the boy Ballantyne. (3) Admitted that Agnes Brown, after her classes had gone to the playground, reported the matter to the complainer. Quoad ultra denied. The said Agnes Brown stated in evidence that she had seen the boy leaning over and doing something to the girl Betty Fairbairn's hand or wrist. Further, the prosecution adduced Betty Fairbairn and her mother as witnesses of credit. Betty, in answer to the Procurator-Fiscal, stated that the boy Ballantyne had asked her for a piece of slate pencil, and that when she was handing it to him he bit her on the wrist, and that she comher daughter had told her that the boy Ballantyne had bitten her on the wrist, and that she herself saw the mark of his bite. Having regard to this evidence tendered by the prosecution, the complainer was entitled to assume that the fact of biting was an accepted fact in the case. (4) Admitted that the complainer told the said Agnes Brown to tell the boy to come to him; that on his refusal the complainer went himself to the playground and brought him in, with his hand on the boy's coat collar; that he laid him on a chair and struck him over the seat of his trousers with the tawse; that the boy kicked out at the complainer and struggled off the chair; that the complainer replaced him on the chair and struck him again on the same place with the tawse. Admitted that the boy's age was six years. Quoad ultra denied. The boy was not dragged into the room,

6. Denied. Explained that the complainer knew exactly the nature of the offence with which he was being charged. He did cross-examine the medical witness produced by respondent on the question of the excess and effect of said punishment. In the witness-plained to Agnes Brown. Her mother stated that box, after being duly sworn, he himself spoke to the activities and exertions of the boy during 11th July, after said punishment had been inflicted. It was through no fault of the respondent that he did not produce further evidence on this point. Explained further that the complainer, by his cross-examination of the Crown witnesses, by his own evidence, and by the evidence of the witnesses Margaret Wilson, the teacher of said classes, absent on the day in question by leave of the complainer, and Agnes Brown adduced on his behalf, shewed that he well knew, and had all along known, the nature of the charge preferred against him. Further explained that the Sheriff, in convicting the complainer, stated that he entirely disbelieved the evidence of the said Margaret Wilson.

In reply to these answers the complainant nor was he thrashed in a vindictive or savage manner. stated, inter alia:

After the complainer's conviction he was informed by the police sergeant in whose charge he was that it was too late to appeal after having left the dock. When the complainer took legal advice he was advised that owing to the passing of time the conviction could only be challenged by way of suspension. In view, however, of the nature of the answers, and in particular of the statement of facts made by the respondent, the complainer considers he is now entitled to go fully into the circumstances of the case. The complainer accepts blame for having treated the prosecution too lightly, and for having failed owing

The boy is of wiry build and of fully average physique
for his years. The punishment was not excessive,
and was entirely justified by the serious offence
committed by the boy. (5) Denied. Explained that
before being punished the boy admitted to the
complainer in the presence of several other boys that
he had bitten the girl. Further, it was proved that
on two occasions shortly before, the boy Ballantyne
had bitten two girls. The complainer testified to
this without being cross-examined thereon. The
fact was also spoken to by the teacher Miss Wilson.
The names of the girls were May Brown and Jessie
Scott. In the case of May Brown, Miss Wilson
reproved him. In the case of Jessie Scott, she

1928.

HIGH COURT

CIARY.

888

38

REPORTS-1924, SCOTS LAW TIMES.

punished him and reported his conduct to the complainer, who said he would deal with the boy on the or JUSTI. next occasion. The mother of the boy was also informed of what he had done on these two previous Brown v. occasions. Explained that the complainer did Hilson. examine the girl's wrist, but not till after the boy had been punished. The marks of the boy's teeth were November 24, quite distinct, and in one place the skin had been

broken. (6) Admitted that the boy told his mother that he had been thrashed by the complainer, and that he told her he was sore, and that he was examined by Dr Macdonald the same night, and that the doctor stated that he found marks of the complainer's tawse on the boy's buttocks, and on the parts of his thighs which were close thereto. Admitted that the doctor, in answer to the Sheriff, stated an opinion that he thought from the marks on the boy's person that the punishment had been excessive. He referred to the marks on the boy's buttocks. He made no reference to the boy's face. No suggestion was made that the boy had suffered any injury to his person. The narration given of the marks spoken to by the doctor is greatly exaggerated. It is explained that several of the marks would be caused by one stroke of the tawse, which had two fingers. Quoad ultra the statements in this article are denied. The witness William Smith,

police sergeant, who had also examined the boy, stated that he saw marks on his person, but, though pressed on the point by the respondent, would not say that the marks were raised. Further, immediately after his punishment the boy played with the other boys during the eleven o'clock interval, during the dinner interval, and also from 2.30 to 4 P.M. He then walked home three miles and played at home

till he left with his father for Kelso, where he arrived at 9 P.M.

The boy travelled sitting on the iron carrier at the back of his father's bicycle both going to and returning from Kelso, which is distant from his father's house about three miles.

5. The explanation in answer is admitted. The complainer is a school teacher, and has no legal training or knowlege of Court procedure. He did not know, nor was he informed by the Sheriff, that it was possible for him to take objections to the complaint.

6. The explanations in answer are denied. The charge against the complainer was a charge of common assault, and it was against this charge that he defended himself. He was not bound to defend himself against any other charge, nor could he be competently tried on any other charge under the complaint before the Court. It is of a common assault that he has been found guilty. Reference is made to the record of the proceedings at the trial, and in particular to the finding of the Court.

The complainer pleaded, inter alia: "1. As the complaint was lacking in specification, and failed to aver the commission of the offence with which the complainer could be charged, the conviction which followed thereon was incompetent, and the conviction and sentence complained of ought to be suspended simpliciter."

The respondent pleaded, inter alia:

"3. The complaint being relevant and not lacking in specification, the prayer of the bill of suspension should be refused.

"4. The Sheriff being entitled, on the facts as proved before him, to find the complaint proven as libelled, the finding and sentence should be sustained."

The case was heard before the High Court of Justiciary on 23rd and 24th November 1923. Argued for the Complainer: A schoolmaster was allowed to inflict ordinary chastisement. Before a charge for assault could be sustained the punishment must be shewn to be excessive (Scorgie v. Lawrie, 1883, 10 R. 610; Disney, The Law relating to Schoolmasters, p. 74). The complaint should have set forth the fact that the punishment was excessive. Proper specification was necessary (Macdonald, Criminal Law of Scotland, p. 322). In M'Shane v. Paton (1922 J.C. 26) a similar complaint had been held bad. Where the relationship of master and pupil existed that relationship should be libelled (Hume on Crimes, Vol. II. p. 197; Macdonald, Criminal Law of Scotland, pp. 333, 406; Mackintosh v. Cameron, 1832, 5 Deas and Anderson 257; M'Shane v. Paton (cit.) per Lords Salvesen and Ormidale at p. 31; Maxwell v. Caledonian Railway Co., 1898, 25 R. 550, where the form of issue was given in a civil action where violence had been used by a railway servant). If the facts would not support the crime libelled the Court would quash the conviction (Lockwood V. Walker, 1909, 6 Adam 124).

on.

Counsel for the respondents were not called

On 24th November 1923 the Court refused the bill of suspension.

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The Lord Justice-General (Clyde). - Everything that could be said for the appellant has been laid before us by Mr MacLean in the very careful address which he has just concluded. The first point he makes is that the complaint was irrelevant. Put short, the complaint is in these terms that the appellant, described as school teacher, the School House, Makerstoun, Roxburghshire," did on a specified date, in a classroom within the school at Makerstoun assault a certain boy, aged six years, and "did strike him on the face with hands your and did beat him with a pair of tawse, and with your hands on the hips and thighs, whereby he was injured in his person." The ground upon which the relevancy of the complaint is attacked is that, whereas corporal chastisement is a legitimate incident of the relations between schoolmaster and pupil (Muckarsie v. Dickson, 1848, 11 D. 4), and does not amount to the crime of assault unless the punishment is excessive (see Scorgie v. Lawrie, 1883

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