his own heirs and assignees whomsoever, all and sundry his estate, heritable and moveable, as at the time of his death. The question is whether that destination to the issue of the bodies of such children gave these children a jus crediti under the marriage-contract, or whether that was a testamentary provision only. Now as regards the children of the marriage it is of course settled law that the provisions in their favour and in favour of the wife in a marriage-contract are contractual in the highest degree, and that the contracting parties, the husband and wife, cannot defeat the rights secured to the children by the marriage-contract. There is no doubt about the law on that subject. What the reason of the law may be is of very little consequence, although it probably originated in the claims which ex jure naturali children have against their parents. But the children of such children are in an entirely different position. They have no claim which the law recognises in the same sense as children. They have their own father and mother, and their own father and mother's marriage-contract with reference to any claims they may have, and so far as I recollect there is no case establishing that under such a destination as this grandchildren have a jus crediti. No case was quoted to us, and the only case which the Lord Ordinary refers to is the case of Mackie v. Gloag upon which Lord Kinnear has commented, and the true principle of the decision in which he has explained. That case therefore is not an authority for any such proposition. I am far from saying that a provision in a marriage-contract calling persons after the children of the marriage may not be contractual, but the question would depend on the construction of the whole settlement. If it appears, construing the whole settlement, that it was the intention of the contracting parties that a benefit should be secured to such persons, that will be given effect to. But it must arise upon a consideration of the whole clauses of the contract. The old case of Kinsman v. Scot, in the Dictionary, 12,980, was an example of that. There the destination of the husband's property after the children of the marriage was to the heirs of the wife, and the Court, considering the whole contract, came to the conclusion that the provision was contractual and not testamentary, and accordingly they preferred the heirs of the wife.

In the

case of Mackie, again, it was held, upon a construction of the whole contract, that the provision in favour of the children already procreated of a previous marriage was meant to be contractual, and numerous cases of the kind might be instanced where the decision proceeded upon a construction of the whole contract. But there is nothing in this contract that I can find to suggest that it was the intention of the contracting parties here to give to the grandchildren a contractual right. There are clauses in the contract which I think point exactly the other way, and particularly those to which Lord Kinnear referred, viz., that the hus

band has a power of appointment among the children of the marriage, meaning quite clearly the immediate children of the marriage, and he reserved no such power of appointment among the grandchildren, or among the grandchildren along with the children. There is also the clause at the end, where it is directed that execution shall pass in favour of the wife and children of the marriage in the names of certain parties, pointing to this, that the persons having a right to execution of the provisions of the contract were the widow and the immediate children, and not the grand- . children, If that be so, and if the destination in this contract to children is a pure destination to children and nothing else, then the result is, that the objects of the trust having failed, the estate of the husband returns to him unaffected by anything unless in so far as he is restricted from dealing with it by the terms of the contract of marriage itself. If that destination is purely testamentary, the result must be that the husband acquires uncontrolled right to the estate except so far as he has restricted himself by the marriage-contract, for there is no other deed existing that I know of which restricts his power to any extent or effect. Now, by the clause in question he did restrict himself, because he left a liferent of his whole estate to his widow to be restricted in certain events, and in the event of no living child of the marriage being in existence at the dissolution of the marriage the widow was only to receive £150 a-year. If that event had not occurred, it is clear that as between the husband and wife he could not have defeated the right given to the wife. But that event has occurred, and the widow's right is now restricted to £150 a-year. But I do not see why the husband should not dispense with that restriction, for that is really all he has done in this case. He has simply dispensed with the restriction imposed in his own favour, and being unlimited proprietor of the estate, I cannot see why he might not do so. It was entirely a matter between him and his widow, no third parties being concerned in the matter.

The grandchild has no jus crediti under the marriage-contract, and I cannot see what title he has to interefere. If he has no such jus crediti, what right has he to say to his grandfather and grandmother together, or to the grandfather alone, that he shall not dispose of his owu estate without consulting him? Now, I think that is the whole case, and holding the proper construction of the marriage-contract to be as I have stated, I think the husband was quite entitled to dispense with the restriction of the annuity to £150, and that he had the right to dispose of his own estate. I therefore concur with Lord Kinnear.

LORD M'LAREN-I concur in the opinion of Lord Kinnear. I would just say in a sentence that it appears to me that the cases in which a grantee under a marriage settlement can claim an indefeasible right

may be referred to the three categories which Lord Kinnear has fully examined in his opinion. The indefeasible right must arise from the relation in which the grantee stands towards the parties to the contract, or it must arise from express obligation, or again from the circumstances that one of the parties at the time of the execution of the contract, or sometime during their joint lives, has put property into the hands of third parties, trustees for the benefit of the claimant amongst others. Now, the present case appears to me not to fall under any of those heads. A provision to grandchildren is not presumed to be obligatory in respect of relationship because the parents are not at least in the first instance bound to provide for their grandchildren. The primary duty of providing for them lies upon their own parents. Then I find in the clauses which have been examined by your Lordships no evidence of any obligation, and there is not even that inferential obligation which is sometimes held to exist where one spouse promises to do something for the heir or relative of the other spouse. Then again the case is distinguished from Mackie v. Gloag's Trustees by the absence of any deed of present gift delivered by the parties. The case therefore appears to me to fail entirely, and the result is that the spouses, subject to the right given to one another and to the immediate issue of the marriage, were in my opinion entirely unfettered in the disposal of their respective estates.

LORD PRESIDENT-I concur. We shall allow the claim of the trustees to be amended to the effect of claiming the whole estate to be administered according to the trust, and then we shall rank them in terms thereof.

The trustees submitted the following amendment (Cond. 5) "The said John Scott, Hugh Ross, and Norman Reid, along with the said Mrs Jane Chisholm Scott or Hall, have accepted office under the said trust-disposition and settlement, and have administered the trust-estate up to the present time. They are prepared to continue their administration and management of the estate, and to pay over the trust funds in terms of the said trustdisposition and settlement."

Claim. "To be ranked and preferred along with the said Mrs Jane Chisholm Scott or Hall as trustees to the whole fund in medio in order that they may administer and pay over the trust-estate in terms of the said trust disposition and settlement and codicil thereto."

Plea-in-law. "The claimants and the said Mrs Jane Chisholm Scott or Hall, as trustees under the said trust-disposition and settlement and codicil, are entitled to be ranked and preferred to the fund in medio."

The Court pronounced the following interlocutor:

"Recal the said interlocutor: Repel the claim for Andrew Hall Macdonald and the Rev. Colin Macdonald, his ad

ministrator: Sustain the claim for the said Mrs Jane Chisholm Scott or Hall, and rank and prefer her on the fund in medio in terms thereof: Allow the condescendence and claim for John Scott, Hugh Ross, and Norman Reid to be amended at the bar, and sustain the said claim as amended, and rank and prefer the said claimants on the fund in medio in terms thereof, and decern." Counsel for the Pursuers and Real Raisers, and for Claimant and Reclaimer, Mrs Hall -Asher, Q.C.-Walton. Agent—Thomas White, S.S.C.

Counsel for Claimants and Respondents, Andrew Hall Macdonald and His Administrator-at-law D.-F. Balfour, Q.C.— Dickson. Agents-Tods, Murray, & Jamieson, W.S.

HIGH COURT OF JUSTICIARY.

Monday, February 1.

(Before the Lord Justice-General, Lord Adam, and Lord M'Laren.)

HOUGHTON v. PHYN.

Justiciary Cases-Salmon Fishings-Salmon Fisheries (Scotland) Act 1868 (31 and 32 Vict. cap. 123), sec. 23—Failing to Remove Nets, &c.-Jurisdiction.

Held that the occupier of a fishery in England, the landing-place of which was in Scotland, could not be convicted of a contravention of section 23 of the Salmon Fisheries (Scotland) Act 1868 by failing to remove and secure all nets, &c., within thirty-six hours after the commencement of the annual close time for the district in which the landing-place was.

Richard Houghton was charged at the instance of Charles Steuart Phyn, prosecutor on behalf of the Annan Fishery Board, upon a complaint which set forth that "being an occupier of a fishery in the Solway Firth, the landing-place of which is Annan Waterfoot, in the parish of Annan aforesaid, and within the limits of the district of the river Annan, he did on 25th September 1891 have two drift or whammel nets in a boat at Annan Waterfoot aforesaid, and did fail within thirtysix hours after the commencement of the annual close time in said district, which commenced on 10th September 1891, to remove from said landing-place and grounds adjacent thereto the said drift or whammel nets which had been used or employed by him in taking salmon, and effectually secure the same, so as to prevent their being used in fishing until the end of the close time, contrary to the Salmon Fisheries (Scotland) Act 1868, section 23;" and was convicted. He took a case.

The case set forth-"The facts proved in evidence were that the accused was the occupier of a fishery in the Solway Firth

v. Phyn

1892

within the district of the river Eden, under licence from the Eden Fishery Board; that the landing-place of said fishery was at Annan Waterfoot, within the district of the river Annan; that on the date libelled in the complaint, the police constables, on searching the boats at said landing place, found in the accused's trawl boat two drift or whammel nets belonging to him, which had been used by him in taking salmon, and which he had failed to remove and secure, so as to prevent their being used in fishing until the end of the close time; and that the close time in the district of the river Annan is from 10th September to 24th February."

The questions of law for the opinion of the High Court of Justiciary were—“(1) Whether the appellant is an 'occupier' of a fishery within the meaning of the 23rd section of the Salmon Fisheries (Scotland) Act 1868? and (2) whether, considering the appellant's fishery is in English waters and the landing-place in question in Scotland, the appellant could be legally convicted of a contravention of the 23rd section of the Salmon Fisheries (Scotland) Act 1868 ?”

At advising

LORD JUSTICE-GENERAL-I am of opinion that this conviction must be quashed. No one can contravene the section libelled except the "occupier" of a fishery in the sense of the Salmon Fisheries (Scotland) Act 1868. The question whether it is a fishery in England is one of fact, and the Sheriff-Substitute has found that this fishery is in Scotland. It is suggested that because the landing-place is in Scotland that that is sufficient to found jurisdiction against the appellant. I cannot, however, follow that argument, because the person who alone can be convicted of the offence is not a person who has a landing-place in Scotland, but who is occupier of a fishery in Scotland.

On that short ground I think the first question must be answered in the negative.

LORD ADAM-I am of the same opinion. This complaint is brought against the appellant for a contravention of the 23rd section of the Salmon Fisheries (Scotland) Act 1868, which provides that the proprietor or occupier of any fishery shall within thirty-six hours after the commencement of the annual close time remove and carry from such fishery "all nets," &c.

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Now, the first question presented to us is, what is the meaning of the words "such fishery?" Do they mean "any" fishery, or do they mean a fishery within Scotland?” I am of opinion that the latter is the true meaning of the words. To say that because the landing-place where the fisherman usually lives and where he finishes his day's fishing is in Scotland, the fishery is within Scotland, is quite out of the question.

I have therefore no hesitation in concurring with your Lordship.

LORD M'LAREN concurred.

The Court quashed the conviction.

Counsel for the Appellant Wilton. Agent-Thomas M'Naught, S.S.C.

Counsel for the Respondent - Dundas. Agents-Hope, Mann, & Kirk, W.S.

Monday, February 1.

(Before the Lord Justice-General, Lord Adam, and Lord M'Laren.) RODGERS v. HENDERSON. Justiciary Cases--Suspension--Severity of Sentence.

A bill of suspension of a sentence of imprisonment for breach of the peace in which the only ground of suspension alleged was the undue severity of the sentence in the circumstances, refused. Owen Rodgers having been convicted by the Sheriff-Substitute at Linlithgow of a breach of the peace, and sentenced to sixty days' imprisonment, brought a suspension in which he alleged—“Assuming the conviction to be warranted, the sentence was outrageously harsh, severe, and oppressive. In convictions of a first offender for breach of the peace, it is the invariable practice to give the accused the option of a fine. There was nothing in the circumstances of the present case to justify the SheriffSubstitute's extraordinary severity. The punishment imposed on the complainer has utterly astounded him, and has surprised everyone." And pleaded-"1. The conviction and sentence complained of should be suspended, in respect that the sentence is unduly harsh and oppressive, and ought to be cancelled, or at least restricted to a fine."

At advising

LORD JUSTICE-GENERAL-The question here is, whether this sentence is of such severity as to call for interference by way of suspension? I am of opinion that it is not. Counsel for the complainer has made a very moderate and brief statement from which I gather that the offence was of such a nature as to give rise to a question of discretion within pretty wide limits. The sentence called for might be light or severe according to the view taken by the judge of the conduct of the persons concerned, and also the circumstances of the district in which the thing occurred.

We are not in the region of reviewing the sentence in the exercise of a discretion as to whether the sentence should be completely fulfilled, or whether it may better be in whole or in part remitted. In dealing with a suspension, the question is within narrower limits; and the complainer must found himself on objections to the sentence of a more definite character before we can be justified in quashing it. I have heard no adequate reasons stated for our interference.

LORD ADAM-This is the first case I have seen where the suspension of the sentence

is limited to the ground only of the severity of the sentence. We have seen cases where this ground is mentioned as a circumstance to be taken along with other facts in order to justify us in suspending the sentence. It is unnecessary for us to determine here whether we can competently in any case interfere with the discretion of the Judge in awarding punishment, and I reserve my opinion on the point. Here I agree that there are no grounds for interfering with the Sheriff-Substitute's discretion.

LORD M'LAREN-It is certainly desirable that we should say nothing to prejudice the question, should such question arise, whether we may give relief by suspension or liberation against a sentence which is altogether disproportionate to the offence, that is, where the sentence exceeds the measure of punishment which a judge in the exercise of a reasonable discretion may lawfully award. The sentence under review is said to be objectionable on the ground of excessive severity, because in respect of what is said to be a trifling: breach of peace the Sheriff has awarded the maximum punishment which is within his power when sitting without a jury. The criticism may or may not be just, but a sentence of 60 days' imprisonment is not in itself a severe sentence, and we have no such knowledge of the facts as would enable us to say that it is disproportionate to the offence. In such cases we usually grant interim liberation, and I do not doubt that your Lordships, on a representation that the sentence was under the consideration of the Crown, would continue the interim order until the application had been considered in the proper quarter. I agree that the bill ought to be refused.

The Court refused the bill.

Counsel for the Complainer -- Wilson. Agent-Robert Stewart, S.S.C.

Counsel for the Respondent- Wallace. Agent-Crown Agent.

Monday, February 1.

(Before the Lord Justice-General, Lord Adam, and Lord M'Laren.) MACDONALD v. LAMONT. Justiciary Cases-Failure to Educate Child --Education (Scotland) Act 1872 (35 and 36 Vict. c. 62), sec. 69-Education (Scotland) Act 1883 (46 and 47 Vict. c. 56), sec. 4.

A married woman was prosecuted under the Education Acts for failing to provide sufficient elementary education for her child. Her husband, the child's father, usually resided with his family, but occasionally went another part of the country to get work. At the date of the prosecution he had been absent for six months. Held that the father had not thereby

to

ceased to be the person responsible under the Acts, and that the mother was not liable to prosecution.

This was a cause in the form of a complaint to the Sheriff of the sheriffdom of Inverness, Elgin, and Nairn, brought under the Summary Jurisdiction (Scotland) Acts 1864 and 1881 and the Education (Scotland) Acts 1872 to 1883, particularly section 69 of the Education (Scotland) Act 1872 and section 4 of the Education (Scotland) Act 1883, by Alexander Macdonald, appointed by the School Board of the parish of Snizort to prosecute in terms of the Education (Scotland) Acts, complaining that during the period of not less than one month immediately preceding the 1st day of December 1891 Mrs Catherine Ross or Lamont did, without reasonable excuse, fail to discharge the duty of providing efficient elementary education in reading, writing, and arithmetic for her child Maggie Lamont, who was between five and fourteen years of age, as specified in a certificate by the School Board of the parish of Snizort, and concluding for penalties under the Education Acts.

On the case being called in Court on the 10th day of December, the respondent stated and the prosecutor admitted at the bar that the respondent was a married woman, and that her husband William Lamont usually resided in family with her and their children at Edrigill; that William Lamont occasionally went to the south in search of employment, and was sometimes absent from home and at work in the south for a few weeks, and sometimes for a few months at a time; that he was at that time (December 1891), and had been since the month of June last employed at work at Garelochhead in Dumbartonshire, and that during that period Maggie Lamont had been residing in her father's house at Edrigill aforesaid under the care and guardianship of her said mother.

The Sheriff-Substitute (FRASER) held the complaint irrelevant and dismissed it. Macdonald took a case.

The question of law stated for the opinion of the Court was-"Whether on the facts ascertained by me as above mentioned the respondent was liable as the mother to be prosecuted for failing to educate her own and her said husband's child while her husband is alive and has his home and domicile with her at Edrigill, though at present and since the month of June last personally temporarily resident in Dumbartonshire?" At advising

LORD JUSTICE-GENERAL -- The SheriffSubstitute has found as matter of fact that the husband of the married woman who was the subject of this prosecution usually resides in family with her and their children at Edrigill in the parish of Snizort. It appears that at present he is at work at Garelochhead in Dumbartonshire, and has been there since June last. The question is, whether in these circumstances this married woman is to be

treated as the proper respondent in a prosecution for failure to educate their children.

It is quite plain that the word "parent" as interpreted in the Act cannot be stretched to this length, that merely because the mother is always resident, and the husband is not always resident, that therefore she is to be subject to prosecution. I cannot see that the facts stated raise any case of devolution of the actual custody of the children on the mother. This man is found usually to reside with his family, and he only occasionally goes to the south to get work. He does not thereby, in my opinion, cease to be the person responsible under the Act, nor does the mother by such absence on his part become responsible. Although there may be practical difficulties in carrying out the Act in circumstances, such as Mr Glegg pictures, they do not arise in this case.

LORD ADAM and LORD M'LAREN concurred.

The Court answered the question in the negative.

Counsel for the Appellant Agent-Party.

Monday, February 1.

Glegg.

(Before the Lord Justice-General, Lord
Adam, and Lord M'Laren.)

DUNCAN v. NEILSON. Justiciary Cases-Glasgow Police Act 1866 (29 and 30 Vict. cap. 273), secs. 184, 218, and 219-Unlicensed Carriage Let for Hire at a Railway Station.

The Glasgow Police Act 1866, sec. 184, imposes a penalty upon persons letting a hackney carriage for hire within the city without a licence. Sec. 218, after defining "stage carriage," enacts-"The expression hackney carriage shall mean every other wheeled carriage, whatever be its form or construction, which shall stand on hire or ply for a passenger for hire within the city, except a carriage let out to hire as a job carriage by the day, month, or other longer period, or a carriage kept by a proprietor within his own premises unyoked for the purpose of being let out to hire as a job carriage for any shorter period. The expression 'job carriage' shall not include any carriage licensed in pursuance of this Act. Section 219 enacts -"Nothing in this Act contained shall prevent any carriage proprietor from having one or more 'job carriages,' not being licensed carriages, at any railway station within the city.

Held that the exemption in sec. 219 does not entitle a person to keep unlicensed carriages standing at a railway station and plying for hire for shorter periods than a day, and that a person

who had done so was guilty of a contravention of section 184.

The Glasgow Tramway and Omnibus Company (Limited), 39 Cambridge Street, Glasgow, and John Duncan of Thornbank, Bruce Road, Pollokshields, Glasgow, secretary and manager for said company, were charged at the instance of George Neilson. Procurator-Fiscal of Police in Glasgow, before the Police Court there, "with having, contrary to the Glasgow Police Act 1866, particularly sections 172 and 184 thereof, on the 24th day of November 1891, at the Central Railway Station in Gordon Street and Hope Street, Glasgow, kept, used and let for hire two hackney carriages without having obtained a certificate or licence from the Magistrates' Committee of the city of Glasgow for each of said hackney carriages, which were driven by William Hunter of 3 New City Road, Glasgow, and Philip Crum of 22 Mordaunt Street, Glasgow, respectively, such offence being the first offence."

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The Glasgow Police Act 1866 (29 and 30 Vict. cap. 273), section 184, enactsEvery person who keeps, uses, or lets for hire within the city any stage or hackney carriage, or who carries on any of the trades herein before mentioned without a certificate or licence, or during the time that such certificate or licence is suspended, or after it has been revoked, shall be liable in a penalty not exceeding five pounds for the first offence, and to a penalty not exceeding ten pounds for the second offence."

Section 218 of the said Act enacts-" In construing the general provisions relating to certificates and licences, and the provisions classed under this head, the following expressions shall have the respective meaning hereinafter attached to them, unless there be something in the subject or context repugnant to such construction.

After defining the expression "state carriage" the section proceeds thus "The expression hackney carriage' shall mean every other wheeled carriage, whatever be its form or construction, which shall stand on hire, or ply for a passenger for hire within the city, except a carriage let out to hire as a job carriage by the day, month, or other longer period, or a carriage kept by the proprietor within his own premises unyoked, for the purpose of being let out to hire as a job carriage for any shorter period. The expression 'job carriage' shall not include any carriage licensed in pursuance of this Act."

Section 219 of the Act enacts-"Nothing in this Act contained shall prevent any carriage proprietor from having one or more job carriages,' not being licensed carriages, at any railway station within the city."

On the case being called in Court the appellant's agent stated, as a preliminary objection to the relevancy of the charge, that, looking to the provision of section 219 of the Police Act, it was incumbent on the respondent to aver that the carriages libelled were not job carriages within the meaning of the Police Act.

The Magistrate repelled the objection, so