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HIGH COURT OF JUSTICIARY.
SHOP BREAKING AND THEFT. the 13th of March, came on before this Court, the trial of Thomas Brown and Alexander Thomson, accused of theft and housebreaking, and Ann Gray, accused of reset of theft. The indictment accuses the pannels of two several acts of theft, in breaking into a house, building by Samuel Richard, in Eldin-street, Roxburgh Park, and stealing therefrom some wrights tools, on 22d or 23d of January list; and also of breaking into the shop of John Strachan, grocer, Nicholson-street, on the 25th or 26th of January, and stealing therefrom some copper money, and various articles of grocery goods.
After the indictment was read over to the pannels, the Solicitor-General moved that the diet should be continued as to Alexander Thomson and Ann Gray, till the 23d curt. They were, in consequence, recommitted to prison.---Thomas Brown pleaded guilty. A jury was then chosen, and the pannel adhered to his plea, which be signed in presence of the Court and
The Solicitor-General said, he lamented very much that the crimes, of which the pannel admitted he was guilty, had of late been but too frequently committed by young men of his age. This, he could not help remarking, arose chiefly from the negligence of parents and masters, who did not sufficiently exert their authority in properly taking care of young people, which, in many instances, would prevent the commission of such crimes as those for
The Judges, who were all present éxcept Lord Woodhouselee, severally delivered their opinions on the verdict. All their Lordships deeply lamented that crimes such as those of which the pannel had been found guilty had become so frequent among young men of the pannel's age and description; that the great cause of crimes was the inattention of parents and masters. in not guarding properly the morals of the young under their care; and that much responsibility attached to them for the neglect of this important duty. The previous good character of the prisoner had been of much advantage to him; and, it was only to be lamented, he had not persevered
severed in she paths of virtue. By the lenient interference of the public prosecutor, the Court were delivered from the painful necessity of inflicting a capital punishment; but, although the Jury had recommended the pannel to mercy, on account of his youth and good character, yet they were bound by their duty to tell the public, particularly the young, that youth was no excuse for crimes; and that those who transgress the law, in instances such as the present, will meet with the punishment due to their guilt. The Lord Justice Clerk, after a suitable admonition to the pannel, pronounced sentence, ordaining him to be transported beyond seas, for seven years, under the certification of suffering death, if he return before the expiry of that period.
Counsel for the Crown, the SolicitorGeneral and Henry Home Drummond, Esq; Agent, Mr Hugh Warrender, W.S. ---For the pannel, John Tawse and John Christison, Esqrs; Agent, Mr A. Moneypenny, W. S.
CHARGE OF MURDER.
On the 13th of March came on the trial of Morrison Kilgour and John Scott, accused of the murder of Ann Halliday, residing in Whisky-row, Cowgate, by striking her on the head with a stick or sticks, a pair of iron tongs, or an iron poker, in consequence of which she died after languishing for some time.
The prisoners pleaded not guilty, and the particulars of their case, were very neatly and concisely stated by Mr A. Wood, their junior Counsel. Mr Alexander Gillespie and Mr John Bark, surgeons, who attended the deceased, gave an account of the nature of her wounds, and the state of her person, from the 22d of December till her death on the 10th of January. She had two wounds on the fore part and one on the back part of her head, which was swelled nearly double the ordinary size. There was a discharge of matter from one of the wounds, all of which were in a very unhealthy state, owing to the erysipilas extending all over the head. The wound appeared to have been inflicted by a blunt weapon.---Her head was opened after she died; but both these gentlemen thought her death was occasioned chiefly by the erysipilas, the swelling in the head, and a bad habit of body, and not by the wounds, which were sinall; that the wounds might be the occasion of bringing on the erysipias; and were of opinion that the wounds
might be the remote, but not the proxi mate cause of her death.---They also declared, that if she drank spirits it would be fatal to her.---They both thought her capable of emitting a declaration. She was about 28 years of age, and a stout
Her declaration being identified, was read.
The first person called to prove the mur der was rejected on account of not being properly designed.
Mary Anne Mackay, lately residing with Bell Murray, in Whisky Row, said, that she knew the late Mrs Halliday, and that she was there on a Sunday night in December; that the prisoners were there, and had half a mutchkin of whisky; that they wanted more spirits, but Mrs Halliday refused, as she wanted to go with Mrs Shortread to the Abbey; that three girls were present, Waterston, Linton, and Macpherson, and they had got more drink than they should have got; that the pannels were in a room, but came out of it into the lobby, wishing to get out of the house; but Mrs Shortread secured the door, to prevent their getting out; that Shortread and Linton put out the lights, and a scuffle ensued in the lobby, when she saw the two prisoners strike Mrs Halliday repeatedly with the half of the kitchen tongs, which had been in two pieces before that time; that there was a good fire in the kitchen, which partly lighted the lobby---that one of the men followed the witness into the kitchen, and knocked her down, by striking her on the head with half of the tongs, and she was left lying weltering in her blood---afterwards she was carried to the Royal Infirmary. ---One of the girls, Waterston, who was with child, had one half of the tongs in her hand, and is not sure if she had not another piece in her own hand,---the servant told her so, as she was the worse of liquor at the time; that she was in Mrs Halliday's till she died, but was not her immediate attendant; that she knows Mrs Halliday got spirits during the time the surgeons were attending her; that before this Mrs Halliday had a quarrel with a painter, who struck her on the breast and hurt her much. On the evening the scuffle happened, Mrs Halliday was rather the worse of liquor.
The Solicitor-General said he would call no more witnesses. It appeared, that this unfortunate affair had taken place in one of those low, vile places, that are most improperly
improperly allowed licences to retail spirits, from which the most unhappy consequences arise to the public. An immediate check ought to be applied to this practice, otherwise it was impossible to answer for the consequences, especially in a large me, tropolis, such as Edinburgh.
MrJ. A. Murray said a few words for the pannels; after which, the Lord JusticeClerk desired the Jury to retire, and make out their verdict, during which the Court continued sitting. In about half an hour the Jury returned their verdict, unanimously finding the libel "Not proven.' After a very sensible admonition as to their future conduct in life, from the Lord Justice Clerk, the pannels were dismissed from the bar.
Counsel for the Crown, the SolicitorGeneral and William Horne, Esq.; agent, Mr Warrender. For the pannels, John A. Murray and Alexander Wood, Esquires; agent, Mr Riddel, W. S.
While the Jury were inclosed, the clerk of Court read an act of adjournal, proceed. ing on a complaint at the instance of the Society of Physicians and Surgeons of Glasgow, against persons improperly practising medicine, by which the public are imposed on, and, by the ignorance of these pretended practitioners, even lives have been lost. By this act such persons may now be prosecuted by the Society, either before the sheriffs of counties or magistrates of burghs, for their assuming this profession, without being duly qualified.
March 16, came on before this Court the trial of G. Bartholomew, accused of embezzling and abstracting from the porterstore, kept at the Timberbush, Leith, by Mr James Whale, for Felix Calvert and Company, brewers, London, seven hogsheads of porter, for his own profit. The pannel pleaded "Guilty," and, a Jury be ing chosen, signed a confession of his guilt before the Court and Jury; on which the Jury returned a verdict of guilty, and the Court sentenced him to four months imprisonment in Leith gaol.
March 1812. 10
[The trial of John Skelton, for robbery on the 31st of December and 1st January, on the streets of Edinburgh, will be found in a preceding part of this Number.]
On Saturday, the 7th of March, was de cided the long depending cause between the Duke of Athol, and the other Upper Heri❤ tors on the Tay, and the Honourable Wilham Ramsay Maule and the other Proprie tors of fishings situated in that river.
The question at issue regarded the le gality of the fixed machinery for catching salmon, lately invented, and now in general use upon the lower parts of the Tay, and commonly known by the name of stake nets. Upon this subject the Court formerly heard Counsel at great length, both viva voce and in writing; and their Lordships, after delivering their opinions very fully, found, by a great majority, that the stake hibitions created by the acts of Parliament, nets are illegal, as falling within the proand that the Lower Heritors are liable in damages and expences, of which a conde scendence and account were allowed to be given in. The Court also granted an inter. dict against the continuance of that mode of fishing, but superseded extract for a limited time; by which means, the Lower Heritors will have an opportunity of bring. ing the judgment under review, either by a reclaiming petition, or an appeal. This judgment, it will be observed, only applies to such fishings as are locally situated in the
the river Tay, and not to such as can be
said to be sca fishings: but with regard to
the precise line where the river ends, and Augmentation in Barley where Bear is the
" Grain cultivated.
the sea begins, the Court were considerably divided in opinion; although it was ultimately settled that this matter must depend upon the title-deeds of the parties, -it being incumbent on such heritors as allege their fishings to be in the sea, to establish the fact by proper evidence.
Schiniman v. His Creditors.
This is a case of great general importance to the inhabitants of Scotland.
The question was, "Whether an individual, convicted of gross and culpable extravagance, one who, for a number of years, lived in a manner totally unsuitable to his rank and station in life, and without the slightest prospect of being able to discharge the debts he was contracting, is entitled to the benefit of the cessio?"
The Creditors opposed the cessio, on the ground that a man, who has, by a vein of extravagance, without having met with any losses, or been reduced to indigence by innocent misfortunes, is not entitled to the benefit of it. On the other hand, the Petitioner contended, that mere extravagance of living, with his family, in the degree alluded to by his creditors, and especially in similar circumstances to those in which he was placed, never had been in any one instance considered as a bar to the granting of a cessio; and that, if he should now be refused the benefit of that process, it would have the effect of introducing a rule into the process of cessio widely different from what has been acted upon in all former practices of the Court of Session.
The Court (22d June 1811) "refused to the pursuer the benefit of the process of cessio bonorum, in hoc statu."
The pursuer gave in a petition to the Court against this judgment; and,
The Court (16th November 1811) " adhered to their former judgment."
Some of the Judges expressed an opinion that it appeared to be a new kind of morality to say, that a man is justifiable for running into every sort of extravagance, provided he make his wife and children sharers in that extravagance.
In a process of augmentation of the sti pend of Kincardine O'Neil, in Aberdeenshire, a question arose, which interests landholders and clergy in various districts. The Court awarded a victual stipend, partly in barley, convertible always at the fiar prices under a late act of Parliament. The heritors put in a reclaiming petition, com plaining of this modification, upon the footing that, in Aberdeenshire, barley is not usually cultivated, and that in this particular parish none is ever raised. In the answers for the minister, it was contended that, however material that fact might have been prior to the late statute, converting all future victual stipends into money, yet that now it was of no moment, as the grain could not be exacted in kind, and that the term " barley" was merely used as descriptive of the highest rate of conversion, as the same might be obtained from the fiars of the next adjacent county where barley fiars were struck. And it was further contended, that the Court, in awarding a barley augmentation, had given a less quantity of augmentation victual than they would have done, had they a warded grain of inferior quality.
The Court, on the 4th February, unanimously refused the heritors' petition, upon this special ground, that the augmentation had been at first allowed to go out, without any objection to the modification of barley, and that it was not fair to the minister, when he was now foreclosed from asking a greater quantum, to attempt to reduce the value of his stipend by a complaint, at so late a period, against the quality. But their Lordships refused to lay down any general rule on the subject, apparently inclining to think that it is proper to regu late augmentations by the descriptions of grain which are usually produced in the several parishes to which the stipends apply, and that it is the business of heritors to lay the requisite information before the Court at the time the interlocutor of modification is pronounced.
Counsel for the Heritors-H. Lumsden, Esq.; agent, Masterton Ure, W. S.
Counsel for the Minister-James Gordon, Esq.; agent, Mr Alexander Young