standing at his credit on those shares as at 11th April 1882 In answer to the first alternative of the 7th query, Find and declare affirmative of the said first alternative, and negative of the remaining part of the said query: In answer to the 8th query, Find and declare that the ninth party is liable to bear a share of the losses sustained by the society in proportion to the sum standing to the credit of his shares at 11th April 1882; that the power of withdrawal is limited to shares on which no advance has been made; and that the ninth party has no preference in respect of his intimation of withdrawal, and is liable to pay the balance due on his bonds, and interest at the term of Whitsunday or Martinmas after three months' notice by the liquidator: And in answer to queries 9, 10, and 11, Find and declare affirmative of the said several queries, and decern."

Counsel for First Parties-R. Johnstone-Ure. Agent-David Turnbull, W.S.

Counsel for Second, Third, and Fourth Parties -Strachan. Agents-Miller & Murray, W.S. Counsel for Fifth Party-Pearson-Graham Murray. Agents-Dove & Lockhart, S. S.C.

Counsel for Sixth Party-Rhind-Shaw. Agent -R. Pasley Stevenson, S.S.C.

Counsel for Seventh Party-Mackay. Agent -F. J. Martin, W.S.

Counsel for Eighth and Ninth Parties-Mackintosh-Moody Stuart. Agents-Auld & Macdonald, W.S.-Mackenzie & Black, W.S.

Counsel for Tenth, Eleventh, and Twelfth Parties-W. Campbell. Agents-J. & J. Galletly, S. S. C.

HIGH COURT OF JUSTICIARY.

Friday, July 10.

[Sheriff of Fife.

NICHOLSON 7. YOOLE.

Sea Fisheries Act 1883 (46 and 47 Vict. c. 22), sec 11-Procurator-Fiscal-Title to Prosecute.

Held that a procurator-fiscal has a title to prosecute under the Sea Fisheries Act 1883 notwithstanding the provisions of section 11. This was a complaint in the Sheriff Court of Fifeshire at Cupar under the Summary Jurisdiction Acts 1864 and 1881 at the instance of David Yoole, Depute-Procurator-Fiscal, against William Nicholson, master of the steam-trawler "Deerhound," for a contravention of the Sea Fisheries Act 1883.

An objection was taken on behalf of Nicholson at the trial, that as sub-section 1 of section 11 of the Sea Fisheries Act, 1883 enacts that "the provisions of this Act and of any Order in Council under this Act, or under the sections of the Sea Fisheries Act 1868, amended by this Act, shall be enforced by sea fishery officers, either British or foreign," a complaint at the instance of a procurator-fiscal was incompetent, in respect he was not a British or foreign sea fishery officer.

The Sheriff (CRICHTON) repelled the objection. Nicholson pleaded not guilty, and, after proof, was convicted and fined £5 with the alternative of thirty days' imprisonment.

Nicholson appealed to the High Court of Justiciary.

This question of law was stated for the opinion of the Court-"Was the Procurator-Fiscal entitled to prosecute the complaint in question?"

Argued for the appellant -The limitation in the Act of the title to prosecute to fishery officers was definite and distinct, and must be strictly interpreted. Besides, there was no necessity for the interference of the Procurator-Fiscal. The matter was not of public interest in the proper sense. The Act was not for the public safety, but for the protection of a particular industry, which had its own officers specially pointed out by the Act, and one of these was as available as the Procurator-Fiscal. Any coastguard officer could have prosecuted.

Counsel for the respondent were not called upon.

At advising

LORD JUSTICE-CLERK-I am quite satisfied that the judgment of the Sheriff is right in sustaining the instance of the procurator-fiscal in this prosecution, and I think the propriety of it is not in any way affected by the clause of the Act which has been cited by the appellant. The Act no doubt gives authority to sea officers here and in foreign countries to enforce its provisions, and if a foreign fishery officer should choose to prosecute under it before the Justices or the Sheriff he would be entitled to do so, and also to require the services of the procurator-fiscal to enforce his rights. It is important, I think, that the Act proceeds on a convention with foreign States, and that there are therefore rights which are to be looked on with attention by the Court. I do not think the Act has anything to do with the instance of the procurator-fiscal in his own Court, which is an inherent part of our judicial system. He is the prosecutor in the public interest, and whenever a prosecution in the public interest is instituted, unless his instance is expressly excluded, he is the proper party to conduct it.

On these grounds I propose that we should sustain the judgment of the Sheriff and dismiss the appeal.

LORD YOUNG and LORD M'LAREN concurred.
The Court dismissed the appeal.

Counsel for Appellant--Watt. ander Clark, S. S.C.

Agent-Alex

Counsel for Respondent-Sol.-Gen. Robertson -M'Kechnie. Agent-David Crole, Solicitor.

Commrs, of Govan

10, 1885

Friday, July 10.

[Justices of the Peace of Haddingtonshire.

GEMMELL V. HADDEN AND ANOTHER. Salmon Fisheries (Scotland) Act 1868 (31 and 32 Vict. c. 123), sec. 30-Title to Prosecute-Procurator-Fiscal.

Held that under sec. 30 of the Salmon Fisheries Act 1868, the Procurator-Fiscal of the Justice of Peace Court has a title to prosecute for contravention of the Act. This was an appeal from the Justice of Peace Court at Haddington by Andrew Gemmell, Procurator-Fiscal of Court.

On 5th May 1884 Gemmell lodged a complaint with the Justices against Robert Watson Hadden and Robert Richardson for a contravention of the Salmon Fisheries Act 1868, for fishing with salmon roe in the Tyne.

When the respondents appeared at the bar, before they were asked to plead to the complaint by the Justice in the chair (Sir David Baird, Bart.), the other Justice (Charles J. Shirreff, Esq., Sheriff-Substitute of Haddingtonshire) raised the point whether it was competent for the appellant in his official capacity as 'ProcuratorFiscal of Court' to prosecute under the Act. The 30th section of the Act, provides-'All offences under this Act may be prosecuted, and all penalties incurred under this Act may be recovered, before any Sheriff, or any two or more Justices acting together, and having jurisdiction in the place where the offence was committed, at the instance of the clerk of any district board, or of any other person.' The Justices held that it was incompetent for the Justice of Peace Fiscal to prosecute in his official capacity, and that the expression in the Act, any other person,' meant a common complainer, and that the procurator-fiscal was not any other person' within the meaning of the Act. They also refused the request of the appellant to be allowed to amend the complaint by deleting the words 'Procurator-Fiscal of Court,' and putting in the words 'Solicitor, Haddington,' and dismissed the complaint."

Gemmell took a Case for appeal to the High Court of Justiciary, from which the above narrative is taken, and which stated the following questions for the opinion of the Court — (1) Whether the instance in the complaint as stated was good? (2) Whether the amendment craved by the appellant was admissible?

No appearance was made for the respondents.
At advising-

LORD JUSTICE-CLERK-I see no difficulty. The Act says the prosecution may be "at the instance of the clerk of any district board or any other person." I think the procurator-fiscal comes under the category of "any other person."

LORD YOUNG-I think the instance was quite good, and not only so, but that the procuratorfiscal was the proper person at whose instance the prosecution should be.

The Court answered the first question in the affirmative, and found it unnecessary to answer the second.

Counsel for Appellant- C. J. Guthrie. Agents -Paterson, Cameron, & Co., S.S. C.

Friday, July 10.

[Sheriff-Substitute of Lanarkshire.

POLICE COMMISSIONERS OF GOVAN V. MACKINNON AND OTHERS.

Public Health-Nuisance-Author of Nuisance -Public Health Act 1867 (31 and 32 Vict. c. 101), secs. 16, 18, and 24.

The police commissioners of a burgh lodged a complaint in the Sheriff Court against the proprietors of certain lands divided by a burn or water-course, to have it found that the burn or water-course constituted a nuisance under the Public Health Act, in consequence of the discharge into it of sewage, that these proprietors were the authors of the nuisance, and to have them ordained to remove it. It was proved that no impure matter was discharged into the water-course by the proprietors, or by any of their tenants or feuars at the part complained of, but that the impurity was caused by sewage discharged into it by other parties higher up its course. The Sheriff-Substitute, in respect that the defenders were the owners of the properties on which the nuisance actually existed, decided that they were the authors thereof under the Public Health Act, and ordained them to abate the nuisance. Judgment of the Sheriff-Substitute affirmed.

This was a complaint in the Sheriff Court of Lanarkshire at Glasgow under the Public Health (Scotland) Act 1867, at the instance of the Police Commissioners of the Burgh of Govan, and as such the local authority of said burgh under the Public Health Act, against William Mackinnon, C.A., trustee of Thomas Lucas Paterson of Dowanhill, and Thomas Lucas Paterson for his right and interest, and James Smith Napier and others.

The complaint set forth that the defenders were proprietors of certain lands within the burgh, Mackinnon (as trustee) and Paterson to the south, and Napier's trustees to the north of the burn called the Murrough's Park or Broomloan Burn, which ran for the space of about 117 yards or thereby between the two properties, and that the defenders were the only known owners of the burn to that extent of its course. That the burn for the space foresaid ran open or uncovered, and had become so foul as to be injurious to health in consequence of the discharge into it of sewage, and the presence in it of large deposits of putrescent organic matter causing the evolution of a very offensive gas. That the defenders as owners of the burn were the authors of the nuisance, and that although called upon by the local authority to remove it they had failed to do so.

The complaint therefore prayed the Court to find that in that open part of the burn there existed a nuisance within the meaning of section 16 of the Public Health Act; that the defenders were the authors of the nuisance, and to ordain

them to remove and discontinue it, and for that purpose to ordain them to suitably cover over or tube the said water-course, ditch, or drain for the space open or uncovered as aforesaid, and if necessary to pronounce certain other orders for the purpose.

Defences were lodged for both sets of owners called, a record made up, and productions lodged, including a copy of the record in a process of interdict then depending in the Court of Session, to which reference is made infra.

The Sheriff-Substitute, after having visited the locality in question, and heard parties, and the nuisance having been admitted, remitted to Mr William Robertson Copland, civil engineer, Glasgow, to examine the premises in presence of the parties, and to report what measures ought to be adopted for the removal and discontinuauce of the nuisance, and within what period could be executed. Mr Copland lodged a report dated 20th March 1885.

the same

The following facts were proved or admitted (1) That the parties called were owners respectively of the lands before mentioned. (2) That a nuisance did exist in the part of the burn complained of. (3) That no impurity was communicated to that part of the burn by the defenders Mackinnon and Paterson, or by any of their feuars or tenants either there or higher up the burn. (4) That the burn at the place complained of was made impure solely by sewage sent into it by feuars or others further up its course, and that this impurity had existed at least since 1856. (6) That the local authority, after many years' correspondence on the subject with Paterson, proposed to cover the burn at the place complained of, but without proposing to pay the owners any compensation, whereupon the latter brought in the Sheriff Court, Glasgow, an action to interdict the local authority from carrying out its proposals, and that that action was pending in the Court of Session, the decision of it having been postponed until the then local authority should bring the complaint under the of which this case Public Health Act, out arose. (9) That the contention on the part of the local authority had been, that as the burn in question was private property, and had all along been used by the proprietors along its course as the natural means of draining their properties, the local authority had no right to interfere with it except to the extent of seeing that it was not allowed to become a nuisance.

The Sheriff-Substitute (BALFOUR) decided that the two sets of defenders, being the owners respectively of the two properties on which the nuisance actually existed, were the authors of the nuisance in the sense of the Public Health Act, and ordained them to cover that part of the burn before referred to, so far as it ran open between their properties, and for that purpose to construct a sewer in terms of Mr Copland's report, under his direction and subject to his approval, and that within ten weeks from that date, reserving to pronounce further in the event of said order not being complied with, and to grant warrant to the local authority, or other competent persons, to carry out the foresaid operations, and to find the defenders liable in the expense thereof, and in the expenses of process, or to pronounce otherwise as might seem just.

The defenders Mackinnon and Paterson ap

pealed, and a Special Case was accordingly stated by the Sheriff-Substitute in terms of the Summary Prosecution Appeal (Scotland) Act 1875, setting forth the facts above stated.

The questions of law submitted for the opinion of the Court were-" '(1) Whether in the circumstances the appellants were, in the sense of the Public Health Act, authors of the nuisance in question? (4) Whether the whole facts warranted the findings, orders, judgments, or decrees pronounced ?"

Argued for the appellants-In order to convict the appellants of being the authors of the nuisance it was not enough merely to show that it existed where the burn divided their properties. It was the duty of the Sheriff-Substitute to have found the real authors of the nuisance and to have ordered them to abate or remove it. Further, the proper procedure was for the local authority to have proceeded under sec. 24 of the Public Health Act, and to have themselves executed the works necessary to abate or remove it, and then to have found the real polluters and assessed them.

Respondents' counsel were not called upon.
At advising-

LORDYOUNG-In this case I think the judgment of the Sheriff is right, and that he has fallen into no error in point of law. It is admitted that there is an existing nuisance, and that it is on the appellants' property, being caused by a drain of which he is the proprietor. The local authority proposed to abate the nuisance by covering over the drain. The present appellant presented a petition against that being done, his view being that a public system of drainage ought to be established here. The Sheriff refused to grant interdict, and the case was appealed to this Court, which suggested that the local authority, instead of fighting with the appellants as to whether they were entitled to do this, ought to put a stop at once to the existing nuisance by applying to the Sheriff to have the proprietors ordained to abate the nuisance on his ground. That course was

followed and the action in the civil court stood over. The Sheriff has decided that the proprietors are authors of the nuisance in the sense of the Public Health Act, and has ordained them to cover over the drain.

In this I think that he is right, and therefore propose that we should dismiss the appeal and affirm his judgment.

The LORD JUSTICE-CLERK and LORD M'LAREN concurred.

The Court answered the fourth question in the affirmative and dismissed the appeal.

Counsel for Appellant-Gloag-Low. Agents -Macandrew, Wright, Ellis, & Blyth, W.S.

Counsel for Respondent-Mackintosh-A. S. D. Thomson. Agent-Mr J. Brown, Solicitor.

, Stewart

10

Tuesday, July 10.

[Sheriff-Substitute of Renfrew. DEAS 7. STEWART.

Industrial Schools Act 1866 (29 and 30 Vict. c. 118), sec. 38-Claim against Parish for Maintenance of Pauper Child at Industrial School -Title to Suspend Order of Detention.

A magistrate granted orders under the Industrial Schools Act 1866 for the detention of three children in an industrial school, as being subject to the provisions of the Act, and the children were detained accordingly. The inspector of industrial schools then made a claim under section 38 of the statute for maintenance of the children against the inspector of poor of the parish to which the children were alleged to be chargeable as paupers. The inspector of poor thereupon presented a bill of suspension in the High Court of Justiciary, of the orders of detention, on the ground of irregularity in the proceedings. It was proved that the children were not chargeable as paupers. Held that the complainer had no title to complain, and complaint dismissed.

Section 14 of the Industrial Schools Act 1866 provides-"Any person may bring before two justices or a magistrate any child apparently under the age of fourteen years that comes within any of the following descriptions, namely-That is found begging or receiving alms (whether actually or under the pretext of selling or offering for sale anything), or being in any street or public place for the purpose of so begging or receiving alms; that is, found wandering and not having any home or settled place of abode, or proper guardianship, or visible means of subsistence; that is, found destitute, either being an orphan, or having a surviving parent who is undergoing penal servitude or imprisonment; that frequents the company of reputed thieves. The justices or magistrates before whom a child is brought as coming within one of those descriptions, if satisfied on inquiry of that fact, and that it is expedient to deal with him under this Act, may order him to be sent to a certified industrial school."

Section 38 provides-" In Scotland, where a child sent to a certified industrial school under this Act is at the time of his being so sent, or within three months then last past has been, chargeable to any parish, the parochial board and inspector of the poor of the parish of the settlement of such child, if the settlement of the child is in any parish in Scotland, shall, as long as he continues so chargeable, be liable to repay to the Commissioners of Her Majesty's Treasury all expenses incurred in maintaining him at school under this Act, to an amount not exceeding five shillings per week, and in default of payment those expenses may be recovered by the inspector of industrial schools, or any agent of the inspector, in a summary manner before a magistrate having jurisdiction in the place where the parish is situate: Provided always, that nothing in this Act shall prevent any parochial board, on whose funds the cost of support of any such child has become a charge, from adopting such steps

for the recovery of any sums which may have been paid by such parochial board for any such child against the parish of his settlement, or for his removal, as may be competent to them under any Act for the time being in force relating to the relief of the poor in Scotland.'

On 13th May 1884 William Ross, Justice of the Peace, Greenock, granted orders for the detention in the Industrial School, Greenock, of William John Getty, aged eleven, for three years, Elizabeth Getty, aged ten, for four years, and Ellen Getty, aged nine, for five years respectively, three of the children of Henry Getty, labourer. Each of the warrants bore to be in pursuance of the Industrial Schools Act 1866, and that the child ordered in each case to be detained was subject to the provisions of section 14 of that Act.

On the 6th December 1884 John S. Deas, as inspector of the poor of the parish of Greenock, was, at the instance of John Nicolson, of the office of Inspector of Reformatory and Industrial Schools, No. 32 North Albion Street, Glasgow, and duly authorised by Major Wm. Inglis, the said inspector, cited to appear before the Sheriff at Greenock, and show cause why he should not be found liable, as inspector of poor aforesaid, in payment to the said John Nicolson, on behalf of the Lords of the Treasury, of the sum of £20, 5s., being the expense incurred by their Lordships for the maintenance, between the 22d May and 30th November of that year, at the rate of five shillings per week, of the said children.

The Sheriff, after hearing, adjourned the case to permit of the present suspension being brought.

Deas thereupon presented this bill of suspension to the Lords Commissioners of Justiciary, praying for suspension of the warrants of detention of Getty's children. Charles W. Stewart, inspecting officer of the Burgh School Board of Greenock, Henry Getty, and John Nicolson, of the office of Inspector of Reformatory and Industrial Schools, were the respon

dents.

In his statement of facts the complainer made certain statements, and in particular, that Henry Getty was taken to Mr Ross' private place of business by Stewart, and that he (Ross) there granted the warrants, which Stewart had brought with him for the purpose, filled up and ready, without the presence or knowledge of the Justice of Peace Clerk. He also stated that the children were not, when the warrants were granted, subject to any of the provisions of section 14 of the Industrial Schools Act. He further averred-"The case against the complainer under the foresaid complaint was heard by the Sheriff - Substitute at Greenock on the 12th December, when, inter alia, objection was taken to the legality of the said orders of detention, and proof was tendered that none of the children were of the class contemplated by the section of the statute under which they have been committed. But the Sheriff-Substitute refused to receive the evidence, on the ground that he could not review the order made by another magistrate which appeared to be ex facie regular, and as he held that the fact of the children being in the poorhouse was conclusive of their having been chargeable to the parish within three months of their committal, he stated that it would be his

duty to hold the Parochial Board liable under section 38, unless in the meantime the orders of detention were quashed by the Court of review."

At the first calling of the case no appearance was made by any of the respondents, and the Court appointed the respondent Stewart to lodge answers, and to cause appearance to be made for him at the bar at the next diet of the Court.

Stewart accordingly lodged answers, in which he denied that he took Getty to Mr Ross' office, or that he ever had any communication with Mr Ross in relation to the granting of the warrants. The Court remitted to the Sheriff (MONCREIFF) to examine into the case and report.

The substance of the Sheriff's report was as follows-The statements made by the complainer were in substance correct, with this exception, that Stewart did not accompany or send Henry Getty to Mr Ross, the magistrate, who signed the orders of detention sought to be suspended, and that he had no communication with Mr Ross in connection with the granting of the orders.

On 29th April 1884 Getty, being still out of employment, applied and was admitted, along with his six children, into Greenock Poorhouse, but on 3d May they were all dismissed on the ground that Getty being an able-bodied man, he and his children were not proper objects for parochial relief. In point of fact Getty was then able-bodied and fit for work. The complainer found work for him at 1s. 6d. a-day till the end of May 1884, and since that day he had regularly obtained work in a sugar-house at 22s. a-week.

After his dismissal from the Poorhouse Getty endeavoured to get his children admitted to the Industrial School at Greenock. Sometime between 3d and 13th May 1884 he called at the Industrial School, and obtained from the officials three blank orders for detention under the 14th section of the Industrial Schools Act, and he was told if he got those orders signed by a magistrate three of his children would be admitted. He then went on 13th May 1884 to Mr Ross, who told him that if he got the orders filled up he would sign them. Getty then went to Stewart, and asked him to fill up the blank orders. Stewart did so, and Getty then returned to Mr Ross, who signed the orders, and the children were thereupon admitted to the school.

The orders were signed by Mr Ross in his private office at Greenock, and without the presence or knowledge of the Justice of the Peace Clerk. On 13th May Getty merely told Mr Ross that he was destitute and unable to support his children. He did not say that his children begged or stole or were beyond his control. As to what was stated in the hearing of Mr Ross at the trial of Getty on 18th March 1884, there was more doubt. It was not proved that any of the children were then charged with begging or stealing.

There was no satisfactory evidence that any of the children in question were found begging or receiving alms in the strict sense of the terms, and they certainly did not come under any of the other descriptions given in section 14 of the Act. If the children did beg between 18th March and 13th May that fact was not communicated to Mr Ross either by Stewart or his assistant Alexander Cameron, upon whom Stewart depended for information.

The respondent Stewart said that in filling up the orders for detention he simply acted as Getty's hand, and that all the information was supplied by Getty. The Sheriff thought that was proved so far as regarded the names and ages of the children and the name of the magistrate, but he doubted whether the respective periods of detention were suggested by Getty. He found no evidence, however, that Stewart had any hand in getting the children committed to the Industrial School beyond filling up the orders for detention on Getty's request.

Argued for suspender-The orders were incompetently granted under section 14 of the Act, for the children did not in any particular come under the provisions of that section. Further, neither their father nor they were during any part of the proceedings chargeable to the parish. But as the orders were ex facie regular he could not escape liability for their maintenance under section 38 unless the orders were quashed-The Lord Advocate v. Brown, December 2, 1875, 3 R. 188.

LORD YOUNG-This case has been already twice before, I think, Lord Craighill, Lord Adam, and myself, and I was then much impressed by the fact that although there might have been an irregularity in the proceedings by which these children were sent to the industrial school, they were there, and it was the best place for them. It may be that they were not within the limits of clause 14 of the statute, but they were really going loose on the street, and although the father was an able-bodied man, yet he was out of work at the time. That the father was chargeable as a pauper, and that the parochial board of Greenock was liable for the children's maintenance, was urged on us as a title on the part of the board to complain, and considering the cost of maintenance incurred we thought it right in the public interest that the alleged irregularity should be inquired into, and we therefore remitted to the Sheriff to report on the whole circumstances. The result of his report is, that while there was a good intention, and in the result nothing but benefit to the children, there was an irregularity in the course of the proceedings taken for their good. It appears to be quite clear from the report that the father of these children was an able-bodied man, and that neither he nor they since the initiation of these proceedings were chargeable as paupers. Now, in these circumstances the Court was entitled, at the instance of parties entitled to appear, to inquire carefully into the proceedings, and if they were found to have been irregular to set the children free. But I do not find that in the case of children so sentenced there is any title or interest in the parochial board to complain. The children are there at the cost of the father, and he is satisfied that is the best place for them to be whether there was irregularity in the proceedings or not, and he is liable for the expense of keeping them there. In these circumstances I should be very much disinclined on a general abstract ground of irregularity of proceedings to take the children away from a place where they are so well cared for and turn them