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We have no grounds for deciding what would be the effect in Scotland of a brevi manu removal by the public of any barrier made by the adjacent proprietor across a path which they are entitled to use. On a public highway, traversed by persons and vehicles, there is no doubt that individual passengers may remove any obstruction as a public nuisance. In England the method by which a right of way is often tried is, by an action of trespass against some one for the removal of a fence or barrier. The defence is, that the removal took place on a public highway, and if the defence be successful, the removal is virtually pronounced to have been lawful. The rule is thus expressed, "Moreover, any one may justify pulling down or otherwise destroying a common nuisance, as a new gate or house erected in a highway, or may fill up a ditch dug across it; and it has been holden that there is no need in pleading such justification, to show that as little damage was done as might be." 2

As already stated there is no absolute authority to hold that in the case of a public pathway through private ground miscellaneous passengers would have any such privilege in Scotland; but it has been distinctly established that the persons entitled to the use of a purely servitude road have that privilege, and where the servants of the occupant of the dominant tenement removed a fence set up by the holder of the servient tenement, interdict and action of damages were found incompetent.3 In the case therefore of a kirk or market road,which, though constituted in a servitude held by the inhabitants of some village or other community is yet virtually a public road,-although it may be doubtful whether the public at large are entitled to remove obstructions, there can be no doubt that members of the community in whose particular favour the right of pathway has been constituted have that power.

Interdict. Where people are using a road to which they are not entitled, or the proprietor of the neighbouring ground is making illegal obstructions on a public road, the form of redress usually resorted to has been Suspension and Interdict. In one case where an individual, on the part of the public, claimed a right of road, he applied for interdict against the adjoining proprietor building up the stiles of the road, and thus so far altering its state and appearance, as to prejudice the claimant in his proof of the nature of the road. As the usual

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See Egremont 164, et seq. Egremont 171. Nusans.- Calder v. Munro, 27th January 1831.

See Rol. Abr. voce

caution was not offered, interdict was not granted, but the court appointed a survey to be made.' The proprietor applied for interdict to prevent, during the discussion of the question of right, the public from passing along the pathway in dispute, which bordered the seashore. He produced no title however: his plea that the proprietor of the neighbouring grounds should in such circumstances have the presumption in his favour was repelled; and interdict was refused.2

CHAPTER V.

PUBLIC VEHICLES.

SECT. 1.-Stage-coaches.

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ALL carriages drawn by animal power, at a rate exceeding three miles an hour, to or from a particular place, with a regular fare, are considered stage-carriages, and must be licensed. The license must specify the owners, the route taken with its extent, the days of travelling, and the number of passengers outside and inside for which the vehicle is licensed.4 Licenses are to hold from their date or from a fixed period of commencement mentioned in them, and supplementary licenses may be granted either where the holder of a license wishes to change the route of the coach, or to widows, children, &c., of deceased holders of licenses. The proprietor receives numbered plates to be fixed on a conspicuous part of each side of the carriage, paying duty for each separate pair. Owners or employers of stage-coaches without license, or without having the plates affixed, are liable to a penalty of £20.7 If any stage-coach, whether it be licensed or not, charging distinct fares for the individual passengers, have not the stamp-office plates affixed, the driver, guard, or person having charge of it, forfeits £10, or if he be also the owner, £20; and any officer of the stamp-office, without a warrant or the assistance of any constable, may apprehend the driver of a coach without plates at the end of its journey,

1 Anderson v. Morton, 9th July 1846.-2 Morton v. Anderson, 18th July 1846.- 2 & 3 Wm. IV. c. 120, §§ 5, 6.- Ibid. § 11.-5 5 & 6 Vict. c. 79, §§ 8, 9.—6 2 & 3 Wm. IV. c. 120, §§ 8, 23, 26.— Ibid. § 27.

and bring him before a justice of peace.' not exempt from the rules as to plates.2

Mail-coaches are

There must be painted in letters of one inch at least in length, on a conspicuous part of each side of a stage-coach, the name of one proprietor, with the names of the places between which the coach plies, and on the back the greatest number of inside and outside passengers for which license is obtained, under a penalty of £5.3 These rules are not applicable to mail-coaches carrying no more than four outside passengers.*

Number of Passengers.-A four-wheeled stage-coach, the roof of which is not more than eight feet nine inches from the ground, and the bearing of the ground between the track of the wheels of which is not less than four feet six inches, if licensed to carry nine passengers may carry five of them outside, and if licensed to carry twelve may carry eight outside, and if licensed to carry fifteen may carry eleven outside, and if licensed to carry eighteen may carry twelve outside; and for every additional three passengers for which a coach is licensed it may carry two outside. The punishment for overloading is a penalty of £5 against the conductor or the guard. The guard and driver, and children in the lap, and one child under seven years of age, are not counted, but two children under seven are counted one. No person must be allowed to sit on the luggage on the roof, nor must more than one person sit beside the driver, under a penalty of £5 against the driver. It is farther provided, that for each passenger there must be a breadth of sixteen inches measured off in front of the seat, children under five years of age in the lap not being counted as passengers. The number of passengers for which a coach is licensed, distinguishing outside from inside, must be painted of a conspicuous colour, in words at length, and in letters not less than an inch long, on the back of the coach and on the side of each compartment. The penalty for omission or error in the statement is £10.9 Individuals prosecuting as to omission of these requisites, or as to an excess in the number of passengers, may commence their proceedings against the driver, the conductor, or the guard, provided they do so within ten days after the existence of the ground of action.10

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Luggage. The luggage on the roof of a four-horse coach

1 5 & 6 Vict. c. 79, § 11.-2 Ibid. § 12.-3 2 & 3 Wm. IV. c. 120, § 36.— Ibid. § 46.5 3 & 4 Wm. IV. c. 48, § 2. 5 & 6 Vict. c. 79, § 17.-63 & 4 Wm. IV. c. 48, § 3.-7 Ibid. § 4.8 5 & 6 Vict. c. 79, § 13.- Ibid. § 14. 10 Ibid. § 18.

must not exceed ten feet nine inches in height from the ground, and that on the top of a two or three horse coach must not exceed ten feet three inches, under penalty of £5.1

Drivers, &c.-Drivers must, at the requisition of any justice of peace, surveyor, toll-keeper, or stamp-officer, or of any passenger, permit the carriage to be measured and the passengers to be counted; and for these purposes a passenger may require the carriage to be stopped at a toll-bar, and the keeper to give a signed memorandum of the results; the penalties being £5 against the driver for failing to stop, and against the toll-keeper for failing to give certified measurements. A driver quitting his box without a proper substitute, or permitting a passenger to drive, or by intoxication, negligence, furious driving, &c., endangering the safety of passengers or their property, and a driver or guard failing to take proper care of luggage, or making an overcharge, or using insulting language to passengers; and a guard unnecessarily discharging fire-arms, becomes liable to a penalty of £5.3

SECT. 2.-Post Horses and Carriages.

The annual license duty for letting post horses amounts to 7s. 6d., a proportionate duty being levied on each occasion when a horse is let, whether it be a saddle-horse, or be employed in dragging a vehicle other than a stage-coach.* All licenses, at whatever time granted, expire on the 31st day of January annually. Persons letting horses without license forfeit £10 for each horse.5 A postmaster must take out a license for each place at which he lets horses, under penalty of £20,6 and must at each such place have a sign containing his full name, and the words "licensed to let horses for hire," under penalty of £5.7

Carriages kept to be let with horses by the mile must be numbered with figures one inch and a half long, and have the name of the owner and of the place for which he holds the license painted in distinct letters at least an inch in height, under penalty of £10.8 The duty being proportional to the distance travelled over, or to the time occupied, tollkeepers are appointed to check these particulars; and for this end postmasters are supplied with blank tickets to hold the name of the hirer, and the place he is going to, or the time he is to hire the horse, as the case may be, unless it is.

1 2 & 3 Wm. IV. c. 120, § 43.— Ibid. § 45.-3 Ibid. §§ 47, 48.— Ibid. 53 and Sch. A.-5 2 & 3 Wm. IV. c. 120, § 55.-6 Ibid. § 58.-7 Ibid. 59.- Ibid. § 60.

hired by the mile; and toll-keepers are provided with check tickets containing similar particulars to be given in exchange for these. The postmaster must deliver the ticket to the hirer or his postilion.2 The hirer is not bound to pay for any greater distance than that mentioned in the ticket; and if the postmaster enter a wrong distance he is liable to forfeit £10, and may be refused any future license.3

A

The hirer must deliver the ticket at the first toll; and, if the horse is hired otherwise than by the mile, he receives the exchange ticket, which he has to show to the other tollkeepers as he passes their bars. Where the hirer cannot produce the proper ticket (original or exchange), he is liable to pay 1s. 9d. for each horse to the toll-keeper. Toll-keepers must fill and subscribe the tickets, and those contravening these and other regulations are liable to forfeit £10.5 hirer refusing to deliver the proper ticket, or falsely stating that his horse is not hired, forfeits £10.6 Toll-keepers called on by the collectors to deliver up, at some place not more distant than the nearest market town, the tickets left with them, on failure forfeit 20s. for each. The commissioners of stamps may erect bars for collecting tickets where there are no toll-bars. When a horse is hired for twenty-eight days or more, and is returned before expiry of the period, the postmaster must, under a penalty of £20, demand the check ticket and deliver it to the collector.9 Proprietors of hackney coaches kept in any town to be driven not exceeding five miles from the General Post-office thereof may compound for the duties according to certain rates.1

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CHAPTER VI.

RAILWAYS.*

SECT. 1.-General Regulations.

Railway Board. By several public general statutes and local acts, the powers of central control over railways were vested

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1 2 & 3 Wm. IV. c. 120, § 61.2 Ibid. § 62.-3 Ibid. § 63.- Ibid. § 64. -5 Ibid. § 65.- Ibid. § 66.-7 Ibid. § 67.-8 Ibid. § 69.-9 Ibid. § 70.10 Ibid. § 84.

N. B.-More information regarding local acts for railways and other public works will be found above, Part III. Chap. V. The Railways' Clauses Consolidation Act, containing model clauses for railway bills, is given in the Appendix.

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