Sandyfauld Street, Glasgow, was charged before the Sheriff-Substitute (COWAN) of Renfrewshire at Paisley on a complaint at the instance of George Hart, ProcuratorFiscal of the Court, that the accused "did, on 4th February 1892, in Paisley Road, Glasgow, Renfrewshire, drive a horse and van against Elizabeth Young, wife of William Young, 62 Pollock Street, Glasgow, and knock her down and fracture her skull, to the danger of her life."

On 14th April 1892 the Sherff-Substitute, in respect of the evidence adduced, found the accused "guilty of the crime charged, aggravated as charged," and adjudged him to be imprisoned for the space of thirty days from the trial date.

Donald presented a bill of suspension and liberation, praying for the suspension of the conviction and sentence, and for liberation.

The complainer submitted various arguments relating to the relevancy of the complaint, which need not here be detailed, and further argued-The conviction went beyond the charge. There was no aggravation of the crime set forth in the complaint. There must be a resulting injury in order to constitute a good criminal charge, so the injury could not be held to be an aggravation, but was a part of the charge-Macdonald's Criminal Law (2nd ed.), p. 192. The complainer had therefore been convicted of more than he was charged with, and such a conviction was bad.

Argued for the respondent-The words in the conviction were "aggravated as charged." The Sheriff therefore found the accused guilty of nothing beyond what was charged in the complaint. "To the danger of her life" had been treated by the Sheriff as an aggravation of the offence of knocking down the woman and fracturing her skull.

At advising

LORD JUSTICE-CLERK-In this case the prosecutor in his charge has stated certain things all together. "Did drive a horse and van against Elizabeth Young, and knock her down and fracture her skull, to the danger of her life." All these are charged as one thing. There is no suggestion of any aggravation, indeed the word aggravation is not used. The crime is stated as one crime. This is further brought out by the prayer of the complaint, which is the most important part of the complaint in an Inferior Court. The prosecutor calls on the Sheriff to convict the accused Donald "of the said crime." The Sheriff, however, in giving judgment in the conviction, finds the accused "guilty of the crime charged, aggravated as charged, and therefore decerns and adjudges him to be imprisoned for the space of thirty days." But I do not find either in the complaint or its prayer anything to justify these words 'aggravated as charged." As a matter of speculation, it may be very plain what the Sheriff means by these words. I think it is possible that the Sheriff may have thought that "did drive a horse and van

66

against Elizabeth Young and knock her down" was the crime charged, and that "did fracture her skull to the danger of her life" was an aggravation of the crime. But we do not know that this was what the Sheriff meant by these words, and it is not for us to speculate. I do not think the Sheriff could convict the accused of an aggravation under this complaint and prayer, and I therefore cannot sustain a conviction finding the accused guilty of an aggravation which is not charged.

LORD YOUNG-I asked to see the original proceedings in this case in order to observe whether the words "aggravated as charged" were part of the printed form of the conviction. I find this is not so; the words have been added in writing. I agree in thinking it would be unsafe to sustain a conviction from which it appears that the Judge was thinking of an aggravation which is not in the complaint. It is not only the crime which is taken account of, but also the aggravation which may go to increase the punishment. The Sheriff may have been under some misapprehension, and I think it would be unsafe to allow this conviction to stand.

LORD TRAYNER-I agree in the result at which your Lordships have arrived. I think the complaint asks for the conviction of the accused of a specified crime. The Sheriff in finding the accused “guilty of the crime charged" exhausted all that was asked of him, and when he went on to find the accused guilty of an aggravation he proceeded ultra petita.

The Court quashed the conviction.

Counsel for Complainer-W. Thomson. Agents-J. Douglas Gardiner & Mill, S.S.C.

Counsel for Respondent-C. N. Johnston. Agent-J. Auldjo Jamieson, W.S., Crown Agent.

Tuesday, May 24.

(Before the Lord Justice-Clerk, Lord Young, and Lord Trayner.)

DUFFIE . M'CORMICK.

Cases

Justiciary Highway Passing through Burgh-Driving on LoaningsPowers of Police Commissioners to Prosecute under Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap. 51).

By section 123 of the Roads and Bridges (Scotland) Act 1878, which incorporates section 96 of the General Turnpike Act 1831, it is enacted that if any person shall drive any horse or carriage of any description upon any footpath or causeway on or by the side of any turnpike road made or set apart for the use or accommodation of footpassengers, he shall be liable in a penalty.

A turnpike road as it ran through a police burgh formed the main street of

May 24, 1892.

the town. Down to the year 1878 the Turnpike Road Trustees maintained the carriageways of uniform breadth situated in the centre of the street. In 1878, under section 47 of the Roads and Bridges Act, the Turnpike Road Trustees were succeeded by the Police Commissioners in the control and management of the highway thin the burgh. On either side of the carriageway were strips of ground of irregular breadth, popularly known as loanings. The Turnpike Road Trustees never did anything for these loanings, but the Town Council, and latterly the Police Commissioners of the burgh, had maintained them as footpaths for over forty years.

Held that the Police Commissioners were entitled to prosecute under the Roads and Bridges Act 1878 any person driving carts or carriages on the loanings.

By section 123 of the Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap. 51), which incorporates section 96 of the General Turnpike Act 1831 (1 and 2 Will. IV. cap. 43), it is enacted-"If any person shall ride upon any footpath or causeway on or by the side of any turnpike road made or set apart for the use or accommodation of footpassengers, or shall lead or drive any horse, ass, mule, swine or cattle, or carriage of any description, or any wheel-barrow, truck, or sledge, or any single wheel of any waggon, cart, or carriage apart therefrom, upon any such footpath or causeway, he shall forfeit and pay any sum not exceeding fifty shillings, and failing payment, be imprisoned for any period not exceeding sixty days."

Hugh Peter Duffie, grocer, residing in Rutherglen, was charged in the Burgh Police Court there, at the instance of Alexander M'Cormick, Procurator-Fiscal of Court, upon a complaint charging him with having been guilty "of an offence within the meaning of the Roads and Bridges (Scotland) Act 1878, particularly section one hundred and twenty-three thereof, which incorporates with said Act section ninety-six of the Act passed in the first and second years of the reign of His Majesty King William the Fourth, chapter forty-three, in so far as on the third day of March Eighteen hundred and ninety-two the said Hugh Peter Duffie did, contrary to the said Roads and Bridges Act, unlawfully drive a horse yoked to a spring-van, being a carriage within the meaning of the said Acts, upon the loaning, being a footpath set apart for the use of foot-passengers on the south side of the highway in the burgh of Rutherglen, and forming the Main Street of the said burgh, in the parish of Rutherglen and the county of Lanark, at that part thereof opposite or near to his shop there, situated at two hundred and ten Main Street aforesaid, whereby the said Hugh Peter Duffie is liable to forfeit and pay any sum not exceeding fifty shillings, together with the expenses of process, and failing payment, to be imprisoned for any period not exceeding one month."

Duffie was convicted and took a case, in which the following facts were stated by the Magistrates as proved-"It was proved that the Main Street of Rutherglen consisted partly of a public carriageway of uniform breadth, situated in the centre of the street, and bounded on either side by gutters and kerbs. Prior to the passing of the Roads and Bridges Act of 1878 this carriageway was turnpike, under the control and management, and solely maintained and metalled by the Road Trustees. On each side of the greater part of the carriageway, and separated therefrom by the gutters and kerbs, there are strips of ground popularly known as loanings. These loanings, which are of very irregular breadth, have been for many years made, maintained, and set apart as footpaths, were originally private plots, in some cases enclosed by walls, belonging to the owners of the dwelling-houses abutting on the street, and extended out from the houses to the gutters and kerbs of the highway. When these plots were gradually and from time to time removed or abandoned, from forty to sixty years ago, they became footpaths, and have ever since been maintained as such. Excepting the portion of the loanings pavemented or hornised by the owners, which in some cases extends out to the gutter of the highway, they have been so maintained as footpaths, first by the Town Council and latterly by the Police Commissioners, out of the common good and rates, by the Magistrates annually putting ashes on them, but they were never formed, maintained, or set apart for carriage traffic. The Road Trustees, while they had charge of the carriageway, never did anything for the loanings, maintaining the carriageway only. They were succeeded in this by the Magistrates and Council as Police Commissioners in 1878, when by the Act of that year the entire control and management of the carriageway vested in them. Under the Police Act of 1862 the owners of houses on the sides of the streets have from time to time been required to form and maintain footways of varying breadth as fixed by the Commissioners on that part of the footpaths close to their houses, the remainder of the loanings between those parts made by the owners and the gutters and kerbs on the sides of the highway continuing to be maintained by the Commissioners by ashing them as footpaths. The public lamps are and have always been placed thereon, and trees have recently been planted on a part of them, and these loanings or footpaths have from time immemorial been extensively used as footpaths by the public. At one part on the north side of the street the kerbs were recently renewed by the Commissioners, and three openings left by them in the kerbs to admit of carriages entering for the delivery of heavy goods. At that part of the street opposite to the old churchyard there are no loanings, and the gutter and kerb of the highway approaches within a distance of from 10 feet, gradually narrowing down to 4 feet from the wall of the graveyard, this being the only path for

foot-passengers at that part of the street, and at other parts there are no footpaths except a very narrow path of not more than 2 feet, and in front of some old houses in the street there are no footpaths, the gutter and kerb being quite close to the building line. For some years back-one witness spoke to about ten-certain drivers of brewers' and bakers' vans, chiefly from Glasgow, have occasionally been in the habit of crossing the gutters and kerbs separating them from the carriageway and driving along these loanings or footpaths sometimes from one end to the other. This has increased to such an extent of late that the Commissioners, for the purpose of protecting the foot-passengers, some time ago resolved that it should be discontinued by enforcing the statute, and one month's public notice was given of this resolution. Several persons have recently been convicted of using these loanings or footpaths for vehicular traffic."

The questions of law were-"(1) Is the charge as set forth in the complaint relevant? And (2) Does there exist any question of civil right in favour of the respondent to exclude the prosecution of the offence charged?"

Argued for the appellant (1) The charge was not relevant. It was brought under the Roads and Bridges Act of 1878, and could only be prosecuted by the Magistrates as coming in place of the Road Trustees in terms of section 47 of the Act. But the road trustees had no jurisdiction beyond the carriageway, and it was proved that while the Road Trustees had charge of the carriageway, they had never done anything for the loanings, but had maintained the carriageway only. The complaint did not state by whom the loanings were set apart as footpaths. If they had been set apart as footpaths under section 149 of the General Police Act 1862 the Magistrates might have prosecuted as Police Commissioners, and enforced the keeping of the footpaths clear under section 251 of that Act, but in any view they could not proceed under the Roads and Bridges Act. (2) This was a question of civil right, to be settled by an action in a civil court, and not by a police prosecution.

Counsel for the respondent was not called on.

At advising

LORD JUSTICE-CLERK-It appears to me that this case is one of really no practical importance whatever. That the arrangement of street, road, and footpath in the place referred to in this case must be made and regulated by the Magistrates of Rutherglen nobody doubts. Now, they have made a certain regulation, and if that regulation is an outrage upon the inhabitants, and upon the comfort or rights of the inhabitants, the present Magistrates and Town Council of Rutherglen will be certain to suffer for it at the proper time. But in the meantime they have the responsibility and the duty of making these regulations. Now, they have made a regulation in regard

to a certain space between the edge of the old turnpike road and the houses running along that turnpike road in the burgh of Rutherglen, and we are told in the case that that space between the old turnpike road and the houses has, as a matter of fact, for the last forty years and upwards been used as a footpath by the inhabitants of Rutherglen. In accordance with that fact the Magistrates have come to the conclusion that it is advisable that it should not be used for anything else, and they have issued orders accordingly. The appellant here has disputed these orders, and understanding, I presume, that it was a test case, he has brought this case for the purpose of review.

In these circumstances I can have no doubt that the Magistrates had jurisdiction to deal with the case, and the only question which can raise any difficulty is, whether they have proceeded under the proper statute? In point of fact they have acted under the Roads and Bridges Act of 1878. Now, under section 47 of the Roads and Bridges Act the Police Commissioners were the authority which came in place of the old Road Trustees, and they had a power of punishment conferred upon them, for by section 96 of the General Turnpike Act, incorporated in section 123 of the Roads and Bridges Act, it was declared, inter alia, that if any person should drive any horse or carriage of any description "upon any footpath or causeway on or by the side of any turnpike road made or set apart for the use or accommodation of foot-passengers," that person should forfeit and pay a sum not exceeding 50s. It appears to me to be perfectly clear upon this case that this piece of ground just outside the gutter of the old turnpike road passing through the burgh of Rutherglen, which has been proved as matter of fact, and which we must accept as having been proved, to be a footpath, and which the inhabitants have used as such for over forty years, is under those clauses 96 and 123 a footpath by the side of a turnpike road. And I cannot see how we can exclude the jurisdiction of those who have charge of the road from carrying out the provisions of the statute by which anybody who drives with a vehicle upon the footpath which is at the side of the turnpike road may be dealt with and punished.

It is quite true that as this is a burgh, and as practically this turnpike road forms part of a broad street running between rows of houses of the burgh, the Magistrates of Rutherglen might have dealt with it in another capacity, viz., in their capacity as magistrates of police, protecting the inhabitants of the burgh by making such regulations for the conduct of the traffic between the sides of that street as they might think proper. But I do not think that they are thereby excluded from dealing with this case in their capacity as having charge of the road going through the burgh. They having charge of the road going through the burgh, are under those clauses entitled to enforce penalties against any person who drives on the footpath which is by the side of the turnpike

v. M'Cormick

24

road under their charge. Therefore I think that the appeal should be dismissed.

LORD YOUNG-I think that in the view which your Lordship has expressed, and which, in my opinion, is the right view, the case is not without interest and importance. I took the liberty of pointing out in the course of the argument that in my opinion we are not here concerned with any question of property or property title; we are concerned only with the fact that the High Street running through the burgh of Rutherglen consists of a carriageway of a certain breadth limited by gutters and kerb stones on either side; and on the side of these kerb stones, away from the carriageway, there is a stripe of ground on either side of varying breadth, originally consisting of what in the language of the place, and probably of other places, were called loanings but which the proprietors of the ground from forty to sixty years ago gave up and threw into the road or street so as to form as much part of the High Street of Rutherglen as the carriageway in the centre. And it is set forth in the case, and we must take it as a fact, that for from forty to sixty years this stripe of varying breadth has been maintained and used as a footpath. This footpath is of unusual breadth at some places. In one of those photographs which have been shown to us it is stately and magnificent, the breadth being sufficient to admit of trees being planted with a passage upon either side. But we must take the fact that it has been used and maintained as a footpath.

We are further informed in point of fact that lately, "for some years back, certain drivers of brewers' and bakers' vans, chiefly from Glasgow, have occasionally been in the habit of crossing the gutters and kerbs separating them from the carriageway and driving along these loanings or footpaths, sometimes from one end to the other. This has increased to such an extent of late that the Commissioners, for the purpose of protecting the foot - passengers, sometime ago resolved that it should be discontinued by enforcing the statute, and one month's public notice was given of this resolution."

Now, the statute which it occurred to the Commissioners it was according to their duty to enforce in the interests of the public safety was the Roads and Bridges Act, which I will explain my view of, as it raises the only question of any considerable difficulty in the case. But before noticing it further, I merely wish to repeat emphatically what I have said more than once in the course of the argument, that it is not merely within the power, but according to the duty of the municipal authorities of a burgh with a police establishment, to make a very primitive separation-with which we are all familiar-between that part of the way which is devoted to carriage traffic and that part of it which is reserved for the safety of foot-passengers. It is their duty to do that, and that without reference to any question of property or title. There is a street there; it is

the duty of the Magistrates-within their power and according to their duty-to see that the foot-passengers are protected by having a line of march for themselves, on to which vehicular traffic is not admitted. Now, if that be clear, the case comes to be without any public interest. The Magistrates or the Commissioners at a particular time may make the foot passage too narrow; at another time they may make it too broad. The street has a certain breadth in point of fact from house to house, and it has to be divided between carriageway and footpath, and it is for the Magistrates to exercise their judgment from time to time as to how the division shall be made.

It had here occurred to them that the proper statute to proceed upon in order to maintain the footpath for the exclusive use of foot-passengers in the future, as it had been for the last from forty to sixty years, was to institute prosecutions under the Roads and Bridges Act. Now, that came about in this way. The road leading through Rutherglen, and really forming the High Street of Rutherglen, was a turnpike road under the General Turnpike Act, and under the management of the Turnpike Road Trustees, like many other public turnpike roads under the statute and managed by the Turnpike Road Trustees which at different places passed through a burgh.

Now, no doubt, the police authority in the burgh have a duty to attend to the public safety within the burgh, but the Turnpike Road Trustees had also, in my opinion, a clear duty under clause 96 of the General Turnpike Act to see that any footpath on or alongside of a turnpike road was not endangered by carriage traffic being allowed to pass along it. By clause 96 anyone who endangers the public safety by driving a carriage upon a footpath alongside of a turnpike road, although not on it, is subject to a penalty. Now, who can enforce it? The Turnpike Road Trustees could have enforced it under the General Turnpike Act, in my opinion, even within burgh. That statute did not say, and I cannot infer that the provision imposing a penalty for driving upon a footpath alongside of a turnpike road could not be enforced by the Road Trustees when the road happened to be within burgh. It is a turnpike road notwithstanding that it is within burgha turnpike road with a footpath alongside of it-and the penalty in clause 96 applies to anybody who endangers the public safety by driving vehicles upon that footpath.

I am

Now, under section 47 of the Roads and Bridges Act 1878 the Commissioners of Police of the burgh of Rutherglen have come in place of the Turnpike Road Trustees, and section 96 of the General Turnpike Act has been incorporated in section 123 of the Roads and Bridges Act. of opinion that the officer of the Police Commissioners may in the interests of the public safety prosecute under the Roads and Bridges Act for this offence, whereby the safety of foot-passengers is endangered, viz., by driving carts and carriages on the

footpaths set apart for foot-passengers. I assume for the reasons I have stated that this footpath, although of extraordinary breadth, was set apart in point of fact and maintained for the use of the footpassengers, and that the Magistrates are now only by this prosecution checking what they represent as a comparatively recent innovation, which in their judgment is detrimental to the safety of footpassengers who use it. If they have acted indiscreetly in reserving so much to be protected against vehicular traffic for the safety of foot-passengers, they will correct that if they ascertain that such a course is according to the general feeling of the inhabitants of the place where they are acting as magistrates and guardians of the public safety. I have no reason to know what the prevailing public opinion upon that question is, but in the meantime I see no grounds upon which I can interfere with the efforts of the Magistrates to promote the interests of the public safety by instituting prosecutions such as this to stop the traffic of vehicles along what is in fact a footpath. I am therefore of opinion that this appeal ought to be dismissed, there being, in my judgment, no error in point of law on the part of the Magistrates who pronounced the conviction.

LORD TRAYNER-I concur in the result at which your Lordships have arrived.

The Court dismissed the appeal and affirmed the determination of the inferior Judge.

Counsel for Appellant-Comrie Thomson -Ure. Agent-John Rhind, S.S.C.

desired to carry on the farm, and the landlord entered into possession thereof. Thereafter the tenant's effects were sequestrated, and a trustee was appointed on the sequestrated estate. A reference was entered into between the landlord and trustee under which the valuation of the grain crop, &c., was determined.

Held that the landlord having got possession of the grain crop, &c., before the date of the sequestration, was entitled to compensate the amounts due by him under the reference by the debt due to him by the tenant for arrears of rent and interest on improvement expenditure.

By lease between Beauchamp Colclough Urquhart of Meldrum and Byth and John Davidson, dated 23rd May 1888 and 2nd December 1889, the former let the farm of Auchnagorth for the period of nineteen years to the latter and his heirs, "excluding sub-tenants and assignees, legal or voluntary, and creditors or managers for creditors in any way or shape, unless with the consent of the proprietor." In the lease it was declared "that this lease is granted by the proprietor and accepted by the tenant under and subject to the general articles, conditions, and regulations established by the proprietor for the tenancy of all farms on his estates of Meldrum and Byth, signed by him on the thirtieth day of January, and recorded in the books of Council and Session on the third day of February, both in the year Eighteen hundred and sixty-four... and declaring that the said articles, conditions, and regulations

.. shall, in so far only as they are consistent with the terms of this lease, be held to form part thereof, and be binding on the parties hereto as part of the lease in the same manner as if they had herein been verbatim inserted." It was further contracted in the lease that "in case of the tenant not obtaining a renewal of this lease at the expiry hereof, or in the event of this lease coming to a termination at any time during the currency of the period of let, then the tenant shall be bound to leave to the then incoming tenant or to the landlord, at the valuation of parties mutually chosen, whatever manure is made after the seed time of the last crop, and shall be entitled to receive payment from the then incoming tenant or the proprietor the value of the first year's grass, and of the grain crop, and for the ploughing and rent of fallow land, and for the wire fencing on the farm, as the same shall be fixed by arbitration."

In the articles and regulations incorporated in the said lease, the following provisions were included-"10. . . . No turnips shall be planted for seed unless such seed is to be used on the farm or the written permission of the proprietor_be previously obtained by the tenant. The whole straw, chaff, turnips, and other green crops, and one-half of the hay, shall be consumed upon the farm, and none sold or carried off without the written permission of the proprietor first had and ob