any of the pursuers' workshops or plant, in order to provide the ground, the cost of such removal, and of the re-erection of the workshops and plant elsewhere should be paid by the defenders to the pursuers. The £1130, 13s. 9d. is alleged to be the cost of removal and re-erection under this clause.

"The defenders do not dispute their liability to pay for removal and re-erection of plant and workshops under the 10th article of the agreement, but upon the grounds set forth in articles 1, 2, and 3 of their statement of facts they maintain that the sum charged by the pursuers is excessive, in respect that it includes the cost of work not falling under the agreement at all, and that some of the items are overcharged.

"The defenders also, in article 4 of their statement of facts, state a counter claim against the pursuers for a sum which they allege to be due to them in consequence of the pursuers' actings in regard to a water supply for their works. I shall consider this claim afterwards; but in the first place I shall deal with the case as it stands upon the pursuers' claim, and the defence stated in the first three articles of the defenders' statement.

"The point which was argued before me was, whether the questions raised in regard to the £1130, with which I am now dealing, do or do not fall under the arbitration clause of the contract.

"I am of opinion that they do fall under that clause. The arbitration clause is not, in my opinion, limited to disputes in regard to questions arising during the execution of the works. All disputes or differences arising in regard to the import and effect of any clause in this agreement, or as to the obligations and rights of either party under the same,' are referred to the arbiters named. The present dispute is in regard to the import and effect of the 10th article of the agreement, and to the rights and obligations of the parties under that clause. I am therefore of opinion that the case, so far as regards the pursuers' claim and the defences with which I am now dealing, must be remitted to the arbiters.

"The defenders' counter claim, which is contained in the 4th article of their statement of facts, appears to be of the nature of a claim of danages, and the defenders contended alternatively that the matter should be referred to the arbiters or a proof allowed.

"In my opinion the arbitration clause does not cover a claim for damages, and I think that in the end this was not seriously disputed. In regard to the motion for a proof, I do not think that the defenders have stated a relevant case. I do not know, and it was not made clear to me, what is the ground in law upon which the claim is based. By the 13th article of the agreement it is provided that the pursuers shall supply pit water to the defenders, and that the defenders shall supply the pipes and means of storage. The defenders do not say that the pursuers have not supplied them with pit water, but they aver that when the agreement was entered into it

was understood' that a permanent water supply was to be given from the 'Hall' pit, and that that was the only pit which was pointed out to them as belonging to the pursuers. The complaint is that the pursuers have stopped working the 'Hall'pit, and that the defenders have been put to great cost in laying pipes to another pit. Prima facie, the pursuers have fulfilled the obligation undertaken by them in the contract, because there is no averment that the water supply is insufficient. Further, there is no particular pit specified in the agreement, and no obligation laid upon the pursuers to continue to work any pit in order that a water supply may be given from that pit. In these circumstances the defenders would, in my judgment, require to state specifically the grounds upon which their claim is made. Is it founded upon an implied term in the contract, or upon fraud or deceit; or is the claim laid upon representation inducing the contract, which would entitle the defenders to have the clause in regard to the water supply reduced? The defenders' statements throw no light upon these points, and therefore I am of opinion that I must hold them to be irrelevant.'

The pursuers lodged a reclaiming-note, in which subsequently they did not insist, but the defenders took advantage of the reclaiming-note in order to bring the judgment of the Lord Ordinary, so far as adverse to them, under review.

Argued for the defenders-The defenders' counter-claim was not one of damages. It was for the expense of connecting the defenders' works with the new water supply. The defenders' contention was that this expense was laid by the agreement in the first instance on the defenders, but that in the event of the source of supply being changed, it was implied in the contract that the expense should be on the pursuers. The defenders did not found on breach of contract, but on an obligation in the contract. The question involved in their claim, therefore, arose on a construction of a clause of the agreement or on the mode of carrying the same into effect, or on a subsidiary arrangement made by the parties for carrying the same into effect, and fell under the arbitration clauseMackay v. Parochial Board of Barry, June 22, 1883, 10 R. 1046; Levy & Company v. Thomsons, July 10, 1883, 10 R. 1134.*

on

Argued for the pursuers-The counter claim of the defenders on their own averment was based, not on the agreement, but an understanding collateral to the agreement. It further was a claim of damages for breach of that understanding. The defenders' argument came to this, that a party to an agreement with a clause of reference of this kind could bring any dispute between him and the other party within the clause of reference, by the mere allegation that it arose under the agreement. It had often been held that an arbiter could not assess damages unless such a power were expressly given him— M'Alpine v. Lanarkshire and Ayrshire

Co. v. Dempsters

27, 1891

Railway Company, November 26, 1889, 17 R. 113, per Lord President, 121; Tough v. Dumbarton Waterworks Commissioners, December 20, 1872, 11 Macph. 236; Pearson v. Oswald, February 4, 1889, 21 D. 419, and there was no authority for the contrary view. Levy & Company v. Thomsons was a special case. The arbiter in that case was not called upon to assess damages, but merely to say whether the defenders were to blame for not delivering the vessels which they had contracted to build at the time specified in the contract. In the event of the arbiter finding that the delay was due to the fault of the defenders, the amount of the damage was fixed by the contract.

At advising—

LORD PRESIDENT

This case requires some attention, but I have come to the conclusion that the judgment of the Lord Ordinary is right.

The first question we have to consider is, whether the claim made by the defenders, as laid, is within the class of questions which under the agreement between the parties are submitted to arbitration? For that purpose, on the question of jurisdiction, it becomes necessary to examine the statements in regard to the claim made by the defenders on record in order to ascertain on what it truly purports to rest. Analysing these statements in the light of the explanations which have been given, I have come to the conclusion that they do not set out a claim relating to the "obligations and rights" of either party under the agreement, or "to the mode of carrying the same into effect." On the contrary, the claim purports to rest on the understanding and actings of parties outside of and collateral to the agreement in question. Accordingly the conclusion at which I arrive is, that the defenders' claim, in its subjectmatter and in regard to the rights upon which it is said to rest, does not raise a difference or dispute arising as to any obligation or right of either party under the agreement or as to the mode of carrying the same into effect, and therefore I am prepared to agree with the conclusion of the Lord Ordinary, that it is not a claim of the class specified in the reference clause of the contract, and accordingly not a claim to be submitted to arbitration along with the claims made by the pursuers.

I

If it is not a claim to go to arbitration, it is a claim standing on record for the decision of the Court, and it is necessary for us to consider its quality. On this point I agree with the Lord Ordinary again. think no legal claim has been stated on record for payment of this sum of £150. The view urged by the defenders excludes the claim as one of damages, and I am of opinion that there is no extraneous arrangement well averred, and that the claim does not arise under the contract.

LORD ADAM--I am of the same opinion. I am at the same time far from thinking that where an agreement contains a clause of reference such as we have here, questions

which one party maintains depend upon the construction of the agreement may not be referred to the decision of the arbiter named in the agreement, and that because the Court thinks that on one view of it a claim does not fall within the contract, they are therefore entitled to exclude the arbiter's jurisdiction, but it must be relevantly averred that the claim does fall within the contract. That is what we desiderate here. Here the averment is contained in statement 4 of the defenders' statement of facts, and is to the effect that the claim arises out of a collateral arrangement altogether. The statement begins by setting forth a clause of the agreement, and then goes on to say that "when the said agreement was entered into between the parties, it was understood that the mode of carrying the same into effect was to be," &c. That is not an averment of an obligation or right arising under the agreement. There is no question properly averred here as arising under the agree ment to be sent to the arbiter, and I therefore think that the Lord Ordinary is right.

I also think that the defenders' counter claim is not relevantly averred so as to be admitted to probation. There seems to me to be no relevant averment under the contract of an obligation laid upon the pursuers to furnish a supply of water from any particular pit.

LORD M'LAREN-The parties acquiesce in the Lord Ordinary's finding that the pursuers' claims fall under the arbitration clause of the agreement, and the only question raised on the reclaiming-note is, whether the principle of that decision applies to the counter claim made by the defenders. I agree with the opinion expressed by your Lordship, and at the same time wish to make it clear that in coming to this opinion we are not departing in any way from the principle of putting a liberal construction upon the reference clauses of contracts, but are deciding a question of pleading arising on the record now before

us.

From the facts stated it appears that the defenders took a lease of ground from the pursuers for the erection of chemical works. Under clause 13 of the agreement between the parties the pursuers were bound to supply the defenders with pit water for their works. The clause does not profess to give the defenders a right to water from any particular pit, and that is not surprising, because it is in the nature of the business of mining that pits cease to be worked, and indeed that is exactly what has happened in this case. The supply was given from the Hall pit originally, but in consequence of the workings having been stopped in that pit a change became necessary, and a supply from another pit was given the defenders. If the defenders had come to Court admitting that the contract had been executed, but stating that a dispute had arisen as to which party was to pay for something done under the contract, I should have been disposed to think that

the difference between the parties fell under the reference clause of the contract, because it would have referred to the mode of carrying out the contract. But the hypothesis of the defenders' case is quite different. It virtually consists of an allegation of breach of contract, because it rests upon equitable considerations or the carrying out of an understanding not contained in the written agreement.

I agree accordingly that the defenders' counter claim is not within the reference clause of the contract, and that if relevantly stated it would have to be dealt with otherwise than by arbitration. The Lord Ordinary's view is that the claim is not relevantly stated, and the defenders have not asked leave to amend. Standing the record as it does, it appears to me that the judgment of the Lord Ordinary is right and should be affirmed.

LORD KINNEAR was absent.

The Court adhered.

Counsel for the Pursuers--Asher, Q.C.C. S. Dickson. Agents-Drummond & Reid, W.S.

Counsel for the Defenders-Ure-Deas. Agents-Simpson & Marwick, S.S.C.

HIGH COURT OF JUSTICIARY.

Monday, November 2.

(Before the Lord Justice-Clerk, Lord Adam, and Lord Kincairney.) M'DONALD v. DUFF.

Justiciary Cases - Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), sec. 70— Education (Scotland) Act 1883 (46 and 47 Vict. cap. 56), sec. 9-Attendance Order.

In a complaint charging a parent with contravening the Education (Scotland) Acts 1872 to 1883, in respect he had failed "to discharge the duty of providing efficient elementary education" for his child, and praying, in the event of conviction, for penalties under section 70 of the Education (Scotland) Act 1872, the Sheriff found that the accused had "failed to secure the regular attendance of his child at a public or inspected school,” and pronounced an attendance order under the Education (Scotland) Act 1883, sec. 9.

Held (1) that the complaint was competent, (2) that it was incompetent for the Sheriff under such a complaint to pronounce an attendance order under the Act of 1883, and order quashed. This was an appeal on case stated at the instance of John M'Donald, accountant, Tain, against George Duff, farm servant, Plaids, Tain, against a judgment of the Sheriff-Substitute of Ross and Cromarty and Sutherland, finding that the said George Duff had failed to secure the regular

attendance of Margaret Duff, his child, at some public or inspected school after due warning, and therefore ordaining the said child to attend the Tain Public School every time the said school was open, and during the whole time the same was open for the instruction of children of similar age, including the day fixed by Her Majesty's Inspector for his annual visit.

The case set forth that "the appellantthe person appointed by the School Board of the parish of Tain to prosecute in terms of the Education (Scotland) Acts, 1872 to 1883- prosecuted the respondent before the Sheriff of Ross and Cromarty and Sutherland on a complaint charging the respondent with contravening the Education (Scotland) Acts, 1872 to 1883, in so far as respondent had, for a period of at least one month immediately preceding the 8th day of July 1891, without reasonable excuse, failed to discharge the duty of providing, as required by said Acts, sufficient elementary education in reading, writing, and arithmetic for his child Margaret Duff, aged thirteen years. The punishment craved in event of conviction was that the respondent should be adjudged to suffer the penalties provided by the Education (Scotland) Act 1872, and be found liable in expenses. The respondent pleaded guilty, and the Sheriff - Substitute having considered the whole circumstances, refused to fine or imprison the respondent in terms of the 70th section of the Education (Scotland) Act 1872, but pronounced an 'attendance order,' the penalty provided by the 9th section of the Education (Scotland) Act 1883."

The questions of law for the opinion of the High Court of Justiciary were—“(1) Is it competent for a school board, in a complaint under the Education (Scotland) Acts, 1872 to 1883, to conclude only for the penalties under the Education (Scotland) Act 1872? (2) If it is, is it in the power of the Sheriff, under such a complaint, to pronounce an attendance order in terms of the Education (Scotland) Act 1883?"

The Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), provides by section 70 that the school board may summon defaulting parents before them, and if not satisfied with their explanations or undertaking, "it shall be lawful to and shall be duty of the school board to certify in writing that he has been and is grossly and without reasonable excuse failing to discharge the duty of providing elementary education for his child or children, and on such certificate being transmitted to the procuratorfiscal of the county in which the parent resides, or other person appointed by the school board, he shall prosecute such parent before the sheriff of the county for such failure of duty as is in the certificate specified, and on conviction the parent shall be liable to a penalty not exceeding twenty shillings, or to imprisonment not exceeding fourteen days."

The Education (Scotland) Act 1883 (46 and 47 Vict. c. 56), provides, sec. 9-"If the parent of any child without reasonable excuse neglects to provide efficient elemen

tary education as aforesaid, or fail to secure the regular attendance of his child at some public or inspected school, it shall be lawful to the school board, after due warning to the parent of such child, to complain to a court of summary jurisdiction, and such court may, if satisfied of the truth of such complaint, order that the child do attend some public or inspected school willing to receive him, and named in the order, being either such as the parent may select, or if he do not select any, then such as the court think expedient, and the child shall attend that school every time the school is open," &c.

Argued for the appellant-The complaint contained a charge under sec. 70 of the Act of 1872, and concluded for penalties under that section. It was therefore incompetent to pronounce an attendance order under the Act of 1883-Macaulay v. Macdonald, June 3, 1887, 1 White 376.

Argued for the respondent - The complaint being laid under the Education Acts 1872 to 1883, it was competent to pronounce the order in question.

At advising

LORD JUSTICE-CLERK-The fatal objection to what has been done in this case is that while the person complained against is charged in the complaint with having without reasonable excuse failed to discharge the duty of providing efficient elementary education for his child, the Sheriff has given no finding on that matter at all. He has found that "George Duff has failed to secure the regular attendance of Margaret Duff, his child, at some public or inspected school after due warning," with which George Duff was not charged at all. Therefore I think the decision of the Sheriff is bad, and must be set aside. As regards the questions, I have no doubt that the first must be answered in the affirmative, because the Board may only charge what is charged here, and nothing more. The second question I should answer in this way, that it is not competent for the Sheriff, under a complaint which only charges failure to provide efficient elementary education, to find that the person charged has failed to secure regular attendance, and pronounce an attendance order.

LORD ADAM-I do not understand the counsel for the respondent to maintain that the School Board were not entitled to proceed under the 70th section of the Act of 1872 alone, or the 9th section of the Act of 1883 alone. The only objection to the conclusion in the complaint for penalties under the Act of 1872 only is that the complaint charges contravention of the Education (Scotland) Acts 1872 to 1883. I do not think that affects the matter, and that being so, there is really no dispute that the first question must be answered in the affirmative. I confess I also think that assuming such a complaint to be competent, it is not in the power of the Sheriff under such a complaint to pronounce an attendance order under the Act of 1883. Where a

complaint is laid under a special Act, and under a special clause, to say that a sheriff can award another penalty for a different ground of complaint would be against all practice and principle. I therefore think that the second question must be answered in the negative.

LORD KINCAIRNEY---I concur with your Lordships upon the first question, and have nothing to add. Nor have I any difficulty as to the answer to the second question, but as the person charged, instead of objecting to the order, appears in support of it, I have difficulty in setting it aside.

The Court answered the first question in the affirmative, and the second in the negative, and sustained the appeal.

Counsel for the Appellant - Strachan. Agents Morton, Smart, & Macdonald,

W.S.

Counsel for the Respondent-CraigieAnderson. Agent-David A. Ross, S.Š.C.

Thursday, November 4.

(Before the Lord Justice-Clerk, Lord Rutherfurd Clark, and Lord Trayner.) HUTTON AND ANOTHER v. MAIN. Justiciary Cases-Breach of the PeaceRelevancy.

A complaint charging against certain parties that they "did loudly read, sing, pray, and preach, and did continue to do so for half-an-hour, by which a large crowd was collected and the residents and others in the neighbourhood were annoyed and disturbed," held irrelevant.

This was an appeal on case stated at the instance of Joseph Young Hutton, an agent in the British League, Edinburgh, and Malcolm M'Donald, a mercantile clerk, residing in Elm Place, Leith, against a judgment of the Magistrates of the burgh of Leith, convicting them of the charge contained in the following complaint brought against them by Alexander Main, Procurator-Fiscal of Leith Police Court, viz., that on the evening of 7th September 1891, on the public street in the Kirkgate or Duke Street, near the foot of Leith Walk, all in Leith, they did loudly read, sing, pray, and preach, and did continue to do so for half-an-hour, by which a large crowd was collected, and the residents and others in the neighbourhood were annoyed and disturbed."

66

The case set forth that "before pleading, the appellants took the following preliminary objections to the relevancy of the complaint (1) That it did not found on any statute; (2) that it did not disclose any offence at common law; and (3) that the persons alleged to have been annoyed and disturbed were not specified; but the Magistrates repelled these objections," and after stating the facts found, stated, inter

& Anr. v. Main

alia, the following question of law, viz., “Is the complaint relevant?"

The appellants cited Marr v. M'Arthur, March 29, 1878, 4 Coup. 53; Ritchie v. M'Phee, October 25, 1882, 5 Coup. 147; Deakin and Others v. Milne, October 27, 1882, 5 Coup. 174; Beatty v. Gillbanks, June 13, 1882, L.R., 9 Q.B.D. 308.

The respondent cited Hendry v. Ferguson, June 13, 1883, 5 Coup. 278; Bewglass v. Blair, February 10, 1888, 1 White 574.

At advising

It

LORD JUSTICE-CLERK -There cannot be the slightest doubt that people with the best intention to do good may create a breach of the peace in the public streets by going in procession, or by singing, praying, or preaching, in certain circumstances. That is very plainly brought out in the Arbroath case, where the members of the Salvation Army, in defiance of a proclamation of the magistrates, who in their discretion had come to the conclusion that the continuance of the Salvation Army procession on Sunday tended towards breach of the public peace and must be prevented, insisted on holding their procession, in which they shouted, gesticulated, used grotesque gestures, and did numerous things which were in themselves not discreet or wise and which did tend to promote a breach of the peace. On the other hand, it is equally plain that street preaching in itself does not in ordinary circumstances tend to a breach of the peace at all. happens constantly that respectable people gather a small crowd by their praying and preaching without the slightest tendency to a breach of the peace. It is therefore plainly a delicate matter to charge persons who simply gather people round them to hear preaching, with a breach of the peace, and it is one of those cases in which it is so plain that a mere bald statement is inadequate to infer breach of the peace, that something more must be stated to justify the allegation. It is easy to do so, and in this case I am not the least surprised that the prosecutor did not add to his charge that they did thereby create a breach of the public peace, because I am satisfied that even if he had added that it would not have made a relevant charge. After all that expression is merely a summing up of the effect of what took place, which to be relevant must in itself plainly indicate breach of the peace. Now what does he say? He says that they "did loudly read, sing, pray, and preach, and did continue to do so for half-an-hour." If that was intended to mean anything more than that they did these things "aloud" it ought to have been so expressed. Then it is said that a large crowd was collected." There is no suggestion that the crowd was disorderly or destructive. As I read this charge it does not indicate to me in any way that the assembling of the crowd was to the annoyance or disturbance of the lieges at all. It is said to have been to the annoyance or disturbance of some persons in the neighbourhood. In my opinion that is not enough to infer breach of the peace,

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4, 1891

GAFFNEY v. ROWAN. Process-Appeal-Whether Appeal Barred by Implement of Decree.

A magistrate of a royal burgh, on a complaint by the procurator - fiscal, ordered the respondent to find caution that he would have his dog securely fastened up, and failing caution within twenty-four hours, granted warrant to officers of court to take possession of and destroy, or otherwise secure and safely dispose of the dog. The respondent found caution, and appealed against the judg ment to the Court of Session. Held

that he had not so implemented the decree as to bar his right of appeal. Upon 9th July 1891 the Procurator-Fiscal for the burgh of Ayr, Carruth Boyle Rowan, complained to the Magistrates of Ayr that Richard Gaffney, canteen steward at the military barracks at Ayr, permitted a large St Bernard dog or mastiff to go at large unmuzzled and unsecured against biting and injuring the lieges, and which dog was vicious and dangerous to the lieges; and that on various specified occasions the dog had chased, attacked, seized, and bitten various persons named, and prayed that Gaffney should be ordained forthwith to destroy the dog, or to find caution that he should securely chain it up, and failing obedience in twenty-four hours, that warrant should be granted to officers of court to destroy or otherwise secure the dog.

Upon 27th July the Magistrate, Hugh Douglas Willock, after proof, found that the dog had chased and attacked several children, that the dog was large and powerful, and dangerous to the lieges. He therefore ordained the respondent to find caution