v. Hall. No. 160. proceeded :-Now, if there had been a written lease in which the landlord, after stating that the tenant was poor, had commuted the rent to the rendering of a July 19, 1873. single fish in name of rent without payment, that would have been an intelligible Lord Advocate thing. Whether that would have been an equivalent to the payment of rent may be doubted; still it would have been a strong circumstance; but you have no lease, written or understood, of any kind, with the exception of this statement by a man so very old that he could not be brought here. You will judge whether that is evidence of a contract or bargain for rent. You and not I have to judge upon that point. It does not appear to me that it was so; but you can judge. If you think that that one fish was truly a rent, and that the proprietor in taking it was asserting his right to the salmon-fishings, you will give that fact your consideration in judging of the case; but if you think it was a polite acknowledgment-a piece of ordinary politeness to a kindly landlord, and did not infer rent, you will come to a different conclusion. This at least is certain, that after 1860 the present Sir James Hall did, for the first time,—so far as I can make out, except from that statement of Grieve, demand a rent. question was asked in these words at the witness, James Fairbairn, and was answered," The first salmon ever sent to Sir James as rent was after the Tweed Act in 1860. I cannot say that it was for more than two years that it was paid to him. I had never sent it for rent before." Now, the very fact of asking for The James's ground, both in East Lothian and in Berwickshire. The laird then was the present Sir James's grandfather. The factor gave me leave provided I would give to him one fish every season we so fished. He made me agree to give that before he gave me leave. I understood that Sir James had the right to these fishings. I understood the factor to mean that we gave the fish as rent. I had a partner at the fishing at that time of the name of William Anderson, an old man long since dead. After I got liberty from the factor, Anderson and I commenced the fishing for salmon and fish of that kind. We began to fish at the foot of the Pease Burn, Berwickshire. That was the place we fished most at, and where we got most. We also used to fish opposite the Cove here, also at Gutcher's Hole and Robin's Loch in East Lothian. I think we have also tried Bilsdean Burn. We mostly fished with what they call bob-nets. We used to fish pretty regularly during the season, viz., May, June, and July, but we tried whenever we could get a chance. We generally kept at it until the herring-fishing came on in August, when we stopped it. Anderson and I kept fishing in this way for about eighteen years. We generally, as near as I could state, made from one pound to two pounds a year out of said fishing. The nets we used were put out to catch salmon and nothing else, though they occasionally caught flukes, but they were of no value. It was only for the salmon that we set them. They were about sixty or seventy yards long. We just had one net each at a time, but they were of great length. When our nets went done of course we got new ones, but we never used more than one each at a time. When Anderson and I stopped none of the other tenants fished for a long time. Mr Hood was tenant of the Cove Farm at that time. He sometimes fished, but he only fished for pleasure. Mr Hood, I think, began to fish when we stopped fishing as above mentioned. When I said that none of the other tenants fished I meant that I understood none of them fished for rent. Mr Hood fished with a net about one-half the size of ours. My daughter, who was in Mr Hood's employment at the farm, oftentimes took the fish out of the net for him, and laid it down again. The fishermen of Cove are all tenants of Dunglass. None of these fishermen fished for salmon from the time we stopped until James Fairbairn began to fish. I could not say there was a long time between our stopping and Fairbairn beginning. My memory does not serve me to tell me how long. I had no personal interest after we stopped. When I was fishing I paid a salmon regularly every year. That was just what I and the factor agreed upon. We took it up to the mansion-house of Dunglass. I remember on one occasion when Anderson and I took it up that the butler gave us too much beer, and we got tipsy. I never got any money for any of the fish that we took up for rent. The woman that served the house sometimes bought other fish for the house from us." v. Hall. it then as an acknowledgment of rent shewed that it was a new thing. You No. 160. will judge whether there would be any possible use in taking that for an acknowledgment of rent then. If you think that the rent was substantially fixed by July 19, 1873. agreement in that way, you will then have to consider whether there is sufficient Lord Advocate to support this averment of possession. The exclusion of others is a matter of universal testimony. There can be no doubt that no other persons but the tenants on the estate fished there, except on the two occasions I have mentioned; but that is very natural. The place was remote, and the fishing was not very remunerative. The mode of fishing was this. The net was laid down when the tide was low, and as the tide rose the net floated, and it was visible from the shore if any one chanced to be walking there. But there would be no one walking on the shore in all human probability, except those who lived in the neighbourhood, and who had the greatest interest and desire to keep the net there. Who was there to challenge it? It occurs to me that possession can hardly be instructed by acts, not within the family, but certainly within the proprietorship of the person claiming the right. However, that is also for your consideration. You have it proved in point of fact that there was a fishing by this hang-net by old Grieve, by old Anderson, by old Fairbairn, and others. There is a great deal of evidence to the fact of such fishing, and all by tenants on the estate, from about 1809 down till very lately. That is the character of the fishing which has been carried on. Whether it is sufficient to establish possession on the point of the proprietor is a thing which I leave to you. I have nothing to state to you in point of law except that the possession must be open possession, and possession in the assertion of a right; and that where there is no fishery or exercise of right by the proprietor or his servants in an open manner, it requires very strong evidence before you can substitute for a lease which has never existed an arrangement of this kind without written evidence, and resting on testimony which, although deserving of all consideration, appears to me to be only to the effect that the first fish of the season was to be delivered to the proprietor. The Jury returned a unanimous verdict for the Crown on both issues. On a motion for a new trial, on the ground that the verdict was against evidence, the Court held that as the only possession of salmon-fishings was by servants and cottagers of Sir James, who did not pay any rent therefor, the jury were right in holding that this was not possession by Sir James himself. The Judges reserved their opinion on the question whether a right of salmon-fishing could have been established by the taking of salmon with nets not of the ordinary kind, but of the only kind suitable for the purpose in the locality of the tenants of Sir James, who paid him a rent for the privilege. TODS, MURRAY, & JAMIESON, W.S.-ANDREW MURRAY, W.S.-Agents. No. 161. WILLIAM GALT, Suspender.-Macdonald-H. J. Moncreiff ALEXANDER RITCHIE, Respondent.-J. C. Smith-Strachan. Suspension Statute 30 and 31 Vict. cap. 141 (Master and Servant Act, 1867), secs. 4, 9, 13-Fine.-The Master and Servant Act, 1867, empowers the Court before whom a complaint is laid, if the same is found proven, to award compensation to the complainer, or to impose a fine, and if a fine is imposed, they may direct that a part, but not exceeding one-half, be applied to compensate the complainer. In a conviction under the statute, the Justices adjudged the person complained against to pay a fine to the complainer. Held, in a suspension of the sentence, that the conviction was bad, in respect that the entire fine was directed to be paid to the complainer, contrary to the terms of the statute. No. 161. Complaint-Alternative penalties.-A complaint simply praying that the employed be summoned and adjudicated upon under sections 4 and 9 of the Master July 19, 1873. and Servant Act, 1867, is unobjectionable, although various alternative penalties are set forth in section 9. Galt v. High Court of. Clerk. Lord Neaves. Justiciary On 10th May 1871, Alexander Ritchie, contractor and quarry-master, Irvine, laid a complaint against William Galt, apprentice mason, under the Master and Servant Act, 1867, before the Justices of Peace for the County of Ayr at Irvine, in the following terms:-" Under the Master and Servant Act, 1867. Unto Her Majesty's Justices of the Peace for the county of Ayr: The complaint of Alexander Ritchie, contractor and quarry-master, Irvine, against William Galt, apprentice mason, now or lately residing in Quarrylane, Irvine. The complainer humbly sheweth, -That the said William Galt, hereafter called the said employed, being the apprentice of the said Alexander Ritchie (hereafter called the said employer) in his trade or business of a dresser and hewer of stones and other kindred services or employment or occupation as carried on by the said employer under a certain contract of apprenticeship for a period now unexpired, did, on the 21st day of January 1871, at Irvine, in the said county, unlawfully neglect or refuse, and has ever since neglected or refused to fulfil the said contract, and has absented himself from the service of the said employer without just cause or lawful excuse: And the said complainant, the employer, further says, that the amount of compensation which he claims for the said breach and non-performance of the said contract is £10 sterling, and he prays that the said employed may be summoned and adjudicated upon under sections 4 and 9 of the Master and Servant Act, 1867. May it therefore please your Honours to grant the said William Galt to appear before you to answer to this complaint, and thereafter to proceed in the matter in terms of the said Act.-According to justice. ALEXR. RITCHIE." At a Justice of Peace Court held at Irvine on 18th April 1873 Galt appeared, and pleaded not guilty. Evidence was led, and the following sentence was pronounced:-"The Justices, in respect of the evidence adduced, convict the said William Galt of the contravention charged, and therefore adjudge him to pay the sum of £5 sterling in name of fine to the said Alexander Ritchie; and also find the said William Galt liable in the sum of 25s. of expenses to the said Alexander Ritchie; and in respect it is inexpedient to give a warrant of ponding and sale, ordain instant execution by imprisonment, and grant warrant to officers of Court to apprehend the said William Galt and convey him to the prison of Ayr, and to the keeper thereof to receive and detain him for the period of two months from the date of his imprisonment, unless the said sum of £5 sterling and expenses shall be sooner paid." Galt having been incarcerated, presented a bill of suspension and liberation, the reasons of suspension being-(1) That the complaint was irrelevant. (2) That it was not in the form required by the Master and Servant Act for proceedings before the Justices. (3) That the Justices refused to take any note of the suspender's objections to the competency or relevancy of the complaint. (4) That the Justices refused to take any note of the evidence. (5) That the deliverance or pretended judgment found a contravention proved, there being no contravention libelled. (6) That by the said deliverance or pretended judgment a fine was inflicted and costs found due, contrary to the statute. Argued for the suspender;-The suspender was convicted and sentenced under sections 4 and 9 of the Master and Servant Act, 1867. It was objected, in the first place, that the complaint was not in the form prescribed by that Act, nor was it brought in terms of the Summary Procedure Act, No. 161. 1864, although it was insisted in under the provisions of the latter Act. The 21st section of the Master and Servant Act directed that the statutes July 19, 1873. Galt v. enumerated in schedule 2, among which was the Summary Procedure Ritchie. (Scotland) Act, 1864, should apply to proceedings under the Act, except as far as any provision of the Act was inconsistent therewith. The present complaint did not bear that it was brought under the Summary Procedure Act by having the usual heading "Under the Summary Procedure Act, 1864," prefixed, as required by that Act (sec. 4, schedule A). Notwithstanding that thus no notice was given that it was intended that advantage should be taken of the enactments in the Summary Procedure Act, the procedure taken did take place under its provisions. No notes of the evidence were taken, and expenses were awarded, though no power of awarding expenses was given by the Master and Servant Act. No doubt the Act made it optional to use the forms annexed to it, or to adopt the provisions of the Summary Procedure Act, but if the proceedings were carried through under the provisions of the latter Act its forms should have been adopted and adhered to. Secondly, if the complaint was intended to be brought under the Summary Procedure Act it ought to have set forth the different alternatives which it was competent to the Justices to have adopted on conviction. The form annexed to the Summary Procedure Act for a complaint under a statute (schedule A, 2), directed that the "penalty and its alternative" be set forth. In the present case all the alternatives open to the Justices on conviction not having been before them at the time of pronouncing sentence, the proceedings were incompetent-Thomson v. Wardlaw, High Court, January 23, 1865, 5 Irvine, p. 45; Baird v. Rose, Ayr, September 27, 1865, 5 Irvine, p. 200. Further, the sentence was bad by reason of uncertainty. It found the suspender "guilty of the contravention charged," while there were various alternatives in the 4th section of the Master and Servant Act, each of which would warrant a complaint being made. Lastly, the suspender was sentenced to pay a fine of £5 to his employer, with 25s. of expenses, and instant execution by imprisonment was ordained unless these sums were paid. It was incompetent, in terms of sections 9 and 13 of the Master and Servant Act, to adjudge the whole fine to be paid to the complainer. The Justices could either award compensation to the party complaining or impose a fine (section 9); where a fine was imposed they were empowered to direct that a part not exceeding one-half of such fine, when recovered, should be applied to compensate an employer or employed for any wrong or damage sustained by him by reason of the Act or thing in respect of which the fine was imposed (section 13). A magistrate was bound to adhere strictly to the directions in regard to the disposal of fines contained in the statute by which the power to impose them was conferred-Lamond v. Baker, 9th February 1860, 22 D. 718; see also M'Callum v. M'Lullich, High Court, October 31, 1870, 1 Couper, 486; Ferguson v. Thow, High Court, June 30, 1867, 4 Irvine, P. 196. The Court directed the respondent's (Ritchie's) argument to the objections (1) that the alternative penalties were not set forth in the complaint; (2) that the whole fine was awarded to the respondent (Ritchie). Argued for Ritchie ;-The first objection, being one against the form of complaint, was excluded by section 20 of the Master and Servant Act-Holland v. Gauchalland Coal Company, High Court, December 24, 1867, 5 Irvine, 561. The complaint in the present case was in precisely the same form as the complaint in the case of Holland, which was also No. 161. under the Master and Servant Act, 1867. The judgment in the case of Thomson, cited for the suspender, proceeded on the ground that the prayer July 19, 1873. of the complaint was misleading. In regard to the objection on the Galt v. ground of the fine having been awarded to the employer, the word "fine" was obviously intended by the Justices to mean compensation. Compensation was what was craved in the complaint, and what the Justices intended to give. No notice of this objection was given in the bill of suspension. Ât advising,— LORD COWAN.-As this is a suspension and liberation, and imprisonment has followed upon the sentence, we must see that the sentence is in conformity with the statute which confers the power. There are several alternative penalties which can be imposed, one of these being that "where no amount of compensation or damage can be assessed, or where pecuniary compensation will not, in the opinion of the Justices, Magistrates, or Sheriff meet the circumstances of the case," a fine may be imposed. Another part of the section refers to the case where compensation is asked by the employer. If compensation is to be assessed to the party, the sentence must bear to be an award of compensation. Where a fine is imposed, it is provided that a part, but not exceeding one-half, may be given to the party. Here we have the whole fine awarded to the party. I am therefore of opinion that the sentence is bad. It is very possible that the Justices meant compensation when they used the word "fine," but we must deal with the sentence as it was pronounced. LORD NEAVES.—I am of the same opinion. The Summary Procedure Act is one of great value, and facilitates procedure. Complaints have been made that in some cases it screens irregularities; certainly the more that the proceedings are protected from examination the more incumbent is it that the final sentence should be in terms of the statute. If the Justices did not know the difference between fine and compensation they are not very fit for their office. If they used the wrong word by mistake I do not see how we are to find that out. A fine is a pecuniary punishment, exigible by the Crown. Compensation is the private right of the party for what he has lost. Either course is competent. If a fine be awarded a part may be given to the party, but that part must not exceed one-half. I do not think that this sentence can be justified on the ground of confusion in the minds of the Justices, and I do not think we have any power to rectify the sentence. LORD JUSTICE-CLERK.-In regard to the objection that all the alternatives competent to the Justices to adopt upon conviction were not set forth in the complaint, I believe your Lordships are of opinion with me that the case of Thomson v. Wardlaw, January 23, 1865, must now be held to have proceeded on the ground that the statement in the conclusion and prayer of the complaint of the alternatives which were open to the magistrates to adopt, was misleading, and that the case of Holland v. Gauchalland Coal Company, December 24, 1867, establishes that a complaint praying, as the present complaint does, that the em ployed be summoned and adjudicated upon under section 9 of the Master and Servant Act, 1867, is unobjectionable. With reference to the objection raised regarding the imposition of the fine and awarding the whole to the employer, the 9th section introduces for the first time a provision empowering the Sheriff or Magistrates to award compensation to the party complaining. It leaves it to the Sheriff or Magistrates wherever it shall, in their opinion, best meet the circumstances of the case to award it. If compensation is awarded, it goes, of course, all to the party. There is power given also to impose a fine in like circumstances, and the 13th section of the Act applies to that case only. Under that section, if a fine be imposed, they are empowered to direct that a part, not exceeding one-half of such fine, be applied to compensate the employer or employed for any damage sustained by him. Here a fine of £5 was imposed, and the whole ordained to be paid to the em |