an absolvitor from such action he would not have a like permanent settlement as against the pursuer, for, according to the argument, while the defender would be so bound and silenced, it would be open to the pursuer to bring action after action on the same facts, the principle being only limited by the number of arguments at law in a large and various category. I do not think that this is any part of our law. and South the Lord Ordinary, Lord Dewar, supplied the HOUSE To that question the appellants obtained their What is left open, in my judgment, in the case of petitory suits (I leave over, as I have said, the case of reductions, which may some day, unless the Legislature interferes, come to be settled upon the same sound principles) is that a pursuer shall not be debarred by the plea of res judicata from again presenting a case before the Courts founded upon new facts which have come It is too late in the day to attempt to place to his knowledge and which he is able to prove, a decree of absolvitor on the same plane as a through no fault of his, he was previously ignorant decree of dismissal. Sometimes a decree uses of. I go further and suggest that even a second the word absolvitor with such conditions view might justify a second suit, namely, that attached as shew that what was truly meant the result on the former had been reached by a was a dismissal-such as the case of Gillespie total failure of all parties to realise that the v. Russell (1859, 3 Macq. 757), in which rights adjudicated on had been settled in a the former suit was, on the ground of insufficontrary sense by an Act of Parliament of which cient or irrelevant averments, truly dismissed, no stock had been taken. Such a case is con- but in which the judgment was expressed ceivable, and I do not wish to exclude it. But as absolvitor from the action "as laid." It is the main and broad case is the former one, easily possible also to figure a good plea of res which I have stated, and with regard to that I judicata in the case of a fresh action containing venture humbly to adopt the expression of what is in substance a mere repetition of the opinion by Earl Cairns in The Phosphate Sewage averments in the action disposed of by dismissal. Co. v. Molleson (1879, 6 R. (H.L.) 113 at p. 117). But in the plain and ordinary case, such as the "As I understand," said the noble earl, "the law present is, the rule of law prevents the duplicawith regard to res judicata, it is not the case, and tion or multiplication of legal proceedings. it would be intolerable if it were the case, that a That rule was thus expressed in the language party who has been unsuccessful in a litigation of Lord Deas in Stewart v. Greenock Harbour Trs. can be allowed to reopen that litigation merely (1868, 6 M. 954 at p. 958) when he said: "We by saying that since the former litigation there is have had the matter again and again before us, another fact going exactly in the same direction and if there be a distinction established in our with the facts stated before-leading up to the practice, it is that the word 'dismiss' is used same relief which I asked for before-but it when it is open to the party to bring another being in addition to the facts which I have action, and the word 'assoilzie' when it is not mentioned, it ought now to be allowed to be open.' the foundation of a new litigation, and should be allowed to commence a new litigation merely upon the allegation of this additional fact. My Lords, the only way in which that could possibly be admitted would be if the litigant were prepared to say: I will shew you that this is a fact which entirely changes the aspect of the case, and I will shew you, further, that it was not, and could not, by reasonable diligence, have been ascertained by me before." I revert accordingly, in the light of the authorities and principles which I have ventured to set forth, to the crucial question-what was the medium concludendi in this action? It was a simple petitory action for a sum of money, and in the forefront of its pleas a plea of "due and resting-owing." Why this action and plea? What were they about? The answer to that question gives us the medium concludendi. And in his usual luminous and helpful manner Counsel for Pursuers, Macmillan, K.C., C. H. Co. v. Boyd December 14, 1917. Stephen's Athletic Clubs' Ground, Netherlee, Cathcart; and (3) John Tulloch, constable in the Glasgow Police. STAT. 6. In the course of giving his evidence the said William Ogg, who was the first witness called, produced an extract conviction of the Night Poaching Act 1828, section 1, in the Sheriff Court at Hamilton on 9th September 1910. The said William Ogg was not an officer of the said Sheriff Court at Hamilton, and admitted that he was not present at the time of the said conviction. The complainer's agent objected to the allowance of said evidence, but the SheriffSubstitute allowed the production to be received and held this sufficient proof of the said conviction. I. Justiciary cases - Previous conviction - Proof of previous conviction in causa-Complaint charging offence against Night Poaching Act 1828, section 1, and that the offence was a second offence, the accused having been previously convicted-Held that the previous conviction was libelled as an aggravation, and could not competently be proved they stated: in causa. James M'Dermott was charged, along with James Ritchie, in the Sheriff Court at Paisley, at the instance of the trustees of the late James Stewart of Williamwood, with the concurrence of Donald Cameron, Procurator-Fiscal of Court, on a complaint which set forth: James Ritchie, labourer, residing at the Model Lodging House, Portugal Street, Glasgow, and James M'Dermott, miner, 45 Victoria Street, Glasgow, S.S., you are charged at the instance of the complainers that on the 17th day of October 1917 you did by night unlawfully take six rabbits from a field on the farm of Netherlee, part of the lands of Williamwood, parish of Cathcart and county of Renfrew, the property of the complainers, and such offence as regards you the aforesaid James M'Dermott is a second offence, you having been previously convicted, as in the list annexed, contrary to the Night Poaching Act 1828, section 1. On 27th November 1917 the Sheriff-Substitute (Blair) found the panel James M'Dermott guilty as libelled. M'Dermott presented a bill of suspension and liberation to the High Court of Justiciary, which stated, inter alia: STAT. 1. On or about 10th November 1917 the complainer was served with a complaint at the instance of the respondents, the said trustees, with the consent and concurrence of the respondent, the said Donald Cameron, charging the said James Ritchie and the complainer with an offence against the Night Poaching Act 1828, section 1, and, in so far as concerns the complainer, it was alleged that such offence was a second offence, all as particularly set forth in the said complaint. STAT. 3. The witnesses for the respondents were (1) William Ogg, constable in the Renfrewshire Constabulary stationed at Netherlee, Cathcart; (2) William Aitchison, groundsman at Pettigrew & The respondents lodged answers in which Ans. 6. Admitted that Ogg was not an officer of the Sheriff Court. . . . Explained and averred that the said witness Ogg in evidence clearly proved the applicability of the said extract conviction to the complainer. The complainer made no attempt to dispute the accuracy of his statements, and neither his own testimony nor any other testimony whatever was tendered by or on behalf of the complainer either on this or on any of the other points in the case. Quoad ultra denied. The complainer pleaded, inter alia: 1908 (8 Edw. VII. cap. 65) enacts: The Summary Jurisdiction (Scotland) Act Section 34. Where the accused has been previously convicted of any offence forming an aggravation of the offence with which he is charged, such previous conviction shall be set forth in the complaint, and ... (2) If the accused pleads not guilty to the charge and is subsequently convicted thereof, the judge or the clerk of court shall, after conviction, ask the accused whether he admits the previous conviction or convictions libelled .. (4) Where the accused does not admit any conviction so libelled, the prosecutor, unless he withdraws such conviction, shall adduce evidence in proof thereof, either at the first diet or at any adjourned diet. (5) A conviction, or an extract conviction of any offence committed in any part of the United Kingdom, bearing to be under the hand of the officer in use to give out such extract conviction, shall be received in evidence without being sworn to by witnesses. An official of any prison in which the accused may have been confined on such conviction shall be a competent and sufficient witness to prove the application thereof to the person accused, although he may not have been present in Court at the trial to which such conviction relates. This provision shall be without prejudice to any other competent mode of proving a conviction and the application thereof to the accused. Where in any Court a book of record is kept of the convictions in said Court containing the like particulars as are inserted in an extract conviction, and where at the end of each day's proceedings the entries in such book are certified correct by the judge or clerk of court, such entries shall, in any proceedings in such Court, be accepted as evidence of such conviction.. (8) Nothing herein contained shall prevent evidence of previous convictions being led in causa where such evidence is competent in support of a substantive charge. aggravated by a previous conviction for the HIGH same offence. If that is a correct view to take COURT of the libel, undoubtedly the objection is well OF JUSTI founded. V. CIARY. Trs. 1917. The accused is charged in the complaint with M'Dermott having, on a certain day, at a certain place, been stewart's guilty of night poaching, and the complaint proceeds that, as regards him, it is a second offence. December 20, It has been argued that this means that it is a substantive part of the charge that a previous offence was committed. I am of opinion that that is not so, and that this is merely an aggravation of the offence which he is alleged to have committed. In short, I see no distinction, although I may observe a difference, between the Street Betting Act and this Act; and if there is no real distinction, then the reasoning in the case of Campbell v. Kerr (1912 S.C. (J.) 10, 6 Adam 550), to which we were referred, is directly applicable to this case. I have read with care, and re-read, the opinion of the Lord Justice-Clerk in that case, which was concurred in by Lords Dundas and Guthrie, and I see no flaw in the reasoning. In my opinion, exactly the same course should have been followed here as was followed by the magistrate in Campbell v. Kerr, and, on that ground, I should have been of opinion that the conviction and sentence could not stand. Argued for the Complainer: (1) In this case the previous conviction was an aggravation of the offence and not part of the substantive charge. The prosecutor should have waited until the evidence in causa had been led, and then have put forward the conviction (Campbell v. Kerr, 1912 S.C. (J.) 10; 6 Adam 550). (2) The witness Ogg was not a competent witness under the Summary Jurisdiction (Scotland) Act 1908, section 34, subsection (5), for he was not either an officer of the Sheriff Court who had been present at the previous trial or a prison official, and his evidence was insufficient to prove the previous conviction. Argued for the Respondents: (1) The Summary Jurisdiction (Scotland) Act 1908, section 34, drew a distinction between a previous conviction which was an aggravation of the offence and a previous conviction which was part of the substantive charge. The present case came within the latter category. It would have been so regarded at common law (Hefferan v. Wright, 1911 S.C. (J.) 20, 6 Adam 321, per Lord Ardwall). In It is further said that the conviction is bad the case of Campbell v. Kerr (cit.) the prosecutor because it finds the accused "guilty as libelled" had not libelled the previous conviction other--that is to say, of having committed the second wise than as an aggravation. The present case arose under a different statute the Night Poaching Act 1828 (9 Geo. IV. cap. 69), section 1 -in which a distinction was drawn between the first, second, and third offences, so that it was necessary to prove the previous conviction in causa. (2) If the accused had desired to deny that the previous conviction applied to him he should have said so at the trial. He had not done so, and the evidence of identification was therefore, in the circumstances, sufficient (Brown v. Macpherson, 1917, 2 S.L.T. 134). The Court passed the bill and suspended the conviction and sentence complained of simpliciter. The Lord Justice-General.-This conviction and sentence is challenged on three separate and distinct grounds. In the first place, because the evidence adduced in support of the identification was inadequate in law; second, because the procedure followed at the trial by the Sheriff Substitute who tried the case was incompetent; and third, because the previous conviction libelled in the complaint was not proved. I offence-and that the evidence in support of the Now, if the respondents intended to allege Now, I cannot hold, without any distinct averment on the subject—and no offer of amendOn the first ground I offer no opinion, because ment was given or application made for enquiry the view I take of the second and third is suf--that Ogg was an officer of the prison in which ficient for the decision of the case. The second ground of challenge is that the course which the magistrate here followed was contrary to the statute, in respect that the charge against the accused was one of night poaching, the accused was confined, or that he was present HIGH I am for sustaining the second and third pleas may have been confined on such conviction shall COURT in law, and suspending the conviction. OF JUSTI CIARY. V. Lord Mackenzie.-I am of the same opinion. I M'Dermott am bound to say that it is somewhat unfortunate Stewart's that we are obliged to reach the conclusion that Trs. we do, because it is obvious that, if the course December 20, of proceedings had been different, it might have been possible to avoid the difficulty which bas arisen, and which, I think, is an insuperable bar to maintaining the conviction. The complainer was charged with an offence under the Night Poaching Act 1828, section 1. There were two matters to which the judge who tried the case had to apply his mind; in the first place, whether, on the 17th day of October 1917, the accused "did by night unlawfully take six rabbits from a field on the farm of Netherlee, part of the lands of Williamwood, parish of Cathcart and county of Renfrew, the property of the complainers." It was incompetent to lead evidence of previous convictions in support of this. What follows in the complaint is set out as an aggravation of the charge I have read; "and such offence as regards you the aforesaid James M'Dermott is a second offence, you having been previously convicted, as in the list annexed, contrary to the Night Poaching Act," and so on. It is only after the judge has convicted upon the charge that evidence of previous convictions ought to be led. The extract conviction in the Sheriff Court at Hamilton, which is libelled in this case, appears to me to follow what is the proper practice. It runs: "Offence of which convicted-Contravention of the Night Poaching Act 1828, section 1. Aggravated by the previous convictions set forth in the Schedule annexed hereto." I contrast that with the conviction in the present case, in which the minute runs: "The Court found the accused James M'Dermott guilty as libelled." I think the course followed in the Sheriff Court at Hamilton is the one which should be followed in all these cases in the future, and is the only competent course. With regard to the second point, in my opinion the previous conviction has not been proved. It is quite true that the extract conviction produced fulfils all the statutory requisites of being an excerpt properly taken from the record in the Court books. But the point iswho is the person to whom the extract conviction applies? The prosecutor has failed to prove that the conviction applies to the accused. Section 34 (5) of the Summary Jurisdiction (Scotland) Act 1908 provides: "A conviction or an extract conviction of any offence committed in any part of the United Kingdom, bearing to be under the hand of the officer in use to give out such extract conviction, shall be received in evidence without being sworn to by witnesses. An official of any prison in which the accused be a competent and sufficient witness to prove the application thereof to the person accused, although he may not have been present in Court at the trial to which such conviction relates." The witness adduced in the present case to prove the conviction is not said by the prosecutors to have been either a prison official or to have been present in Court at the previous trial. Even if the view were sound (the assumption upon which I think the argument for the prosecutors proceeded) that one such witness would be sufficient to prove the previous conviction, the witness here is not said to satisfy the statutory provision. Section 34 (5) goes on to provide: "This provision shall be without prejudice to any other competent mode of proving a conviction and the application thereof to the accused." There is here no relaxation of the ordinary rules of evidence as regards theapplication of the conviction to the accused, according to which the evidence of one witnessby itself is not sufficient. On those grounds I am of opinion that the conviction cannot stand. I do not think it is necessary to enter into consideration of the question whether there was sufficient identification or not. That does not arise in the view I take of the case. Lord Skerrington.-The third objection to thisconviction is so clear and unanswerable that I do not consider it necessary to express any definite opinion as to the merits of the first and second objections. As, however, both of your Lordships consider that the second objection is also well founded, I think it right to say that, upon the argument which we have heard, I am not prepared to concur in that opinion, or in the opinion of the Lord Justice-Clerk in the case of Campbell (1912 S.C. (J.) 10, 6 Adam 550). None the less, I welcome the decision which your Lordships are about to pronounce, as onewhich will conduce to the sound administration of justice in summary prosecutions. Counsel for Complainer, W. Mitchell; Agent, C. F. M. Maclachlan, W.S. - Counsel for Respondents, A. M. Mackay; Agents, J. & J. Ross, W.S. W. S. D., for D. O. D.. Lawrence Brady and William Mackie were charged in the Sheriff Court of Lanarkshire, at Glasgow, on a summary complaint at the instance of Peter Fraser Mackenna, Procurator-Fiscal of Court, which set forth : "You are charged at the instance of the complainer that you did on Sunday, 15th July 1917, (1) take from the licensed premises of you, Lawrence Brady, at 56 South Wellington Street, Glasgow, exciseable liquor, viz.: two half bottles of whisky and two bottles of beer for consump tion off the premises. contrary to Article 2 (2) (b) of the Order of the Central Control Board (Liquor Traffic) for the Scotland West Central Area, dated 12th August 1915, made under the Acts and Regulations relating to the Defence of the Realm; and (2) take from said premises said two half bottles of whisky, which bottles did not bear a label shewing the name and situation of said premises, contrary to Article 3 (c) of said Order as amended by the Amendment Order of said Board, dated 16th November 1916, made under said Acts and Regulations, whereby in respect of each of said offences you are each liable to the penalties set forth in section 58 of said Regulations." On 27th August 1917 the Sheriff-Substitute (Scott-Moncrieff) found the charge not proven. At the request of the prosecutor the SheriffSubstitute stated a case for appeal. The case stated: The following facts were proved: 1. That the respondent Lawrence Brady is licensee of the licensed premises at 56 South Wellington Street, Glasgow, referred to in the complaint, and owner of the stock of liquor contained therein, and particularly the liquor after-mentioned, and that the respondent Mackie assisted Brady in one of his spirit shops. 2. That on the date libelled, Sunday, 15th July 1917, about 8.30 A.M., two police officers having observed that the door of the respondent Brady's premises libelled was not properly fastened, and suspecting a burglary, were about to investigate the matter along with another police officer who had joined them, when HIGH 1917. the respondents emerged from the premises, Brady carrying the padlock and hasp for the door, and COURT Mackie a hand-bag; that on being interrogated by OF JUSTI Sergeant Moir, one of the police officers, as to the CIARY. contents of the bag, Brady denied that it contained Mackenna any exciseable liquor. The police sergeant said he v. Brady. wanted to search the bag, and for that purpose the December 22, whole party went into the public-house. Brady took the bag from Mackie when they went into the premises. He, Brady, then refused to allow the bag to be opened. The police sergeant insisted on searching the bag. Brady then said there was just half a bottle of whisky in it, as he had nothing in the house. He told the police officers to come round the counter and he would shew them what was in the bag. The bag was then opened. There were found in it two half bottles of whisky and two bottles of exciseable beer. 3. That neither of the whisky bottles had a label shewing the name and situation of Brady's premises. 4. That the police sergeant cautioned Brady and Mackie, and charged them with taking the liquor off the premises during prohibited hours, and with failing to have the requisite labels on the whisky bottles. Brady stated that along with Mackie he had been at the public baths, which they regularly attended on Sunday mornings; that some friends had unexpectedly Loch Lomond with them, and, having nothing in the arrived from Greenock; that he was going to visit house, he had come to his shop for it. Mackie made no answer to the charge. 5. That Brady merely handed the bag to Mackie to hold until he, Brady, fastened the door. In point of law I found that the articles founded on, viz.: Article 2 (2) (b) of the Order of the Central Central Area, dated 12th August 1915, and Article Control Board (Liquor Traffic) for the Scotland West (3) (c) of the said Order as amended by the Amendment Order of said Board, dated 16th November 1916, did not apply, in respect that no case of sale or supply had been made out, and I accordingly held the charges to be not proven. The Questions of Law for the opinion of the Court included the following: "2. Are the articles of the Regulations founded on intra vires of the Liquor Control Board? "3. Is proof of sale or supply essential to a conviction under the article libelled? "4. Was I right in holding that the charges were not proven?" The Defence of the Realm (Liquor Control) Regulations 1915, West Central Area (Order in Council of 12th August 1915), provide: Article 2, subsection (2). The days and hours on and during which exciseable liquor may be sold or supplied in any licensed premises or club for consumption off the premises shall (subject to the additional restrictions as regards spirits) be restricted and be as follows: On Mondays, Tuesdays, Wednesdays, Thursdays, and Fridays between the hours of 12 noon and 2.30 PM., and between the hours of 6 P.M. and 8 P.M. On Saturdays between the hours of 4 P.M. and 8 P.M. Except on the days and between the hours aforesaid no person shall (a) Either by himself or by any servant or agent sell or supply to any person in any licensed premises or club for consumption off the premises or (except |