it, so as to abate the obstruction as much as may be done consistently with preserving the access, compensation being made to him for any injury caused by the alteration (§§ 91, 92). Proprietors of ruinous houses must, on requisition, repair or pull them down, and in default, they may be repaired or pulled down on the report of workmen, the proprietor defraying the expense, and being liable to a penalty (§ 93). He is relieved, however, of such expenses connected with the process as may not have been caused by his own opposition (§ 94). Proprietors of flats or floors are empowered to make water-pipes along the back walls, and to construct drains (§ 95).

The commissioners may make sewers, &c., avoiding interference with private rights to running water (§ 96). They may provide fire-engines, and appoint men to work them (§ 97). They may likewise erect steelyards for weighing goods brought within the burgh (§ 99).

Deposits for building, and openings in streets, must be made with consent of the magistrates, and fenced in and lighted, under penalties; and the same precautions are to be observed where risk may be incurred from repairs to houses (§§ 100, 101). Sunken steps beyond the line of building must be properly protected (§ 102). The magistrates. may order chimney cans, shutters, &c., which appear dangerous, to be removed, and where the paving, spouts, sewers, &c., are in disrepair, the persons liable to repair them are, on failing to do so on application, to be liable to double the expense of doing so (§§ 103, 104). Proprietors, when required by the commissioners, must make proper footpaths opposite to their premises, under a similar penalty for omission (§ 105). As soon as the magistrates and council shall have provided shambles and slaughter-houses, persons are prohibited, under penalties, from using other places for the purpose, except private persons in their own premises, and for their own use, and corporations acting under authority from the magistrates (§ 112). Any person refusing to carry off the water on his roof by pipes, &c., within fourteen days after being required to do so, is liable to the expense of its being done by order of the magistrates, and likewise of the application (§ 114).

SECT. 6.-Offences.

Jurisdiction.-Offences under this act may be tried by the sheriff in the usual manner, or by the magistrates, at the

instance of the procurator-fiscal, all fines being applied to the purposes of the act (§ 134). The magistrates of any burgh, where the provisions of the act as to watching are introduced, are to have, for the purposes of the act, the same jurisdiction within the boundaries appointed by it, as within the ancient limits of the burgh (§ 135). The acting chief magistrate has the same jurisdiction as a sheriff in regard to the trial of offences under the act (§ 36). Persons taken into custody must be brought before a magistrate as soon as possible, and on no occasion later than the first lawful day after apprehension (§ 139).

Vagrants. Officers may apprehend vagrants and beggars, and bring them before a magistrate, who may send them to their parish if it is within his jurisdiction. If otherwise, he may order them to leave the burgh; and on their being apprehended begging forty-eight hours afterwards, they may be committed to prison for a space not exceeding thirty days (§ 180).

Officers.-An officer appointed by the commissioners may liberate for any offence under the act, on bail not exceeding £10, but he is not responsible for refusing bail (§ 84). The policemen appointed under the act are to exercise the office of constable, and be sworn in as such (§ 74). Any one of them demanding emolument beyond his salary, or concerned in any bargain made by the commissioners, renders himself incapable of serving, and liable to a fine of £20 for each offence (§ 77). The magistrates may suspend watchmen on complaint, leaving the charge to be finally dealt with at the next meeting of the commissioners (§ 78). Persons enticing policemen off their duty become liable to a penalty of £1, and those assaulting or obstructing them to a penalty of £5, besides any damages that may be awarded in a civil action (§§ 75, 76).

Persons defacing the rules and by-laws hung up by the commissioners may be fined to the extent of £5 (§ 86). Occupants where chimneys take fire become liable to a penalty of 10s., and to a farther sum not exceeding 10s. to the person who may extinguish the fire (§ 98). Persons breaking or putting out lamps become liable to penalties not exceeding £5 for each offence, with damages, &c. (§ 109). Cattle must not be driven through the burgh for slaughter on Sunday, under a penalty (§ 83). No person may keep at any time more than 10 lbs. weight of gunpowder, or sell any by candle-light, or keep any otherwise than secured in a place apart, under penalties (§ 87).

Persons rolling casks, driving, riding, &c., on the pavements, training horses on the streets, leaving horses or vehicles on the streets unattended to, carrying timber exceeding twenty feet in length without a four-wheeled conveyance, driving furiously, throwing rubbish, &c., on the streets, may be put into the custody of a police officer by any bystander, and be brought before a magistrate, who, on complaint by the procurator-fiscal, may impose small penalties (§ 89). Keepers of disorderly houses, &c., may be bound to give security for their good behaviour (§ 81).

SECT. 7.-Clerk, Treasurer, and Collector.

The commissioners, at their first meeting, appoint a clerk, whose extracts from the records are probative, and who must keep the books open for inspection without fee (§ 47). They likewise appoint a treasurer and collector, who must give security for money passing through their hands (§ 59). The clerk, and his partner or assistant, must not act as agent in the trial of any offences within the bounds (§ 48). The same person must not be clerk and treasurer, nor can the one be partner or assistant to the other (§ 49). The collector's allowance must not exceed 5 per cent. on the sums collected (§ 69). He must lodge all monies in one of the chartered banks if possible, otherwise in a bank appointed by the commissioners (§ 61). Sums lost by the insolvency of the collector or treasurer, and not recovered from the cautioner, may be assessed (§ 62).

SECT. 8.-Local Police Acts.

Local police acts of burghs cease on the adoption of any part of this act, in as far as they are superseded by the part adopted, with exception of any provisions that may have been made as to water (§ 131). But where two or more burghs, described in the reform act as one parliamentary burgh, have each a police act, no inhabitants of either are entitled to make application for the adoption of the provisions of this act, without the unanimous consent of the qualified persons in both burghs (§ 132). Contracts under local acts are not affected by the adoption of this act (§ 133). The provisions of this act apply to all subsequent police acts, except where expressly altered or excluded (§ 137).

CHAPTER III.

PROTECTION OF THE PUBLIC HEALTH.

SECT. 1.-Nuisance.

By the law of England, nuisances are divided into "public or common nuisances," which are defined, "such inconvenient and troublesome offences, as annoy the whole community in general, and not merely some particular person ;" and "private nuisances," which are defined "any thing done to the hurt or annoyance of the lands, tenements, and hereditaments of another."2 These two different kinds of nuisance come under distinct branches of the law. The former belonging to the department of crimes, and including. many offences against the public peace, are prosecuted by indictment against communities or individuals; while the latter are the subjects of private action.3 In Scotland many of the acts which would come under the head of public nuisances in England, such as the keeping disorderly houses, erecting malicious impediments on highways, and the like, are prosecuted by the public prosecutor as police offences. These are not treated by our lawyers under the head of nuisance, which in its more legitimate acceptation applies only to acts which are in themselves lawful, but may be put a stop to by those who are subject to injury or inconvenience from them. Among these there are many which are appointed by police acts and other statutes to be prosecuted by public officers; but on the whole there is no such distinction into public and private nuisances as that which is held in England, recognised in Scotland. It is nevertheless convenient even in Scotland to make a distinction between those kinds of nuisances, which, affecting single individuals or small numbers of people, are mere incidents of the contiguous exercise of property, and those which, by the large number of persons whom they affect, become matters of public interest, and virtually questions of public law. On this principle, the former class of nuisances has been separately considered in the volume on the Law of Private Rights.*

The Local Police acts of large towns generally determine

1 Bl. iv. 167.-2 Ibid. iii. 216.-3 Ibid. ii. 216. -*See Part XIV. Chap. II. Sect 4.

certain acts to be nuisances, and appoint certain penalties to be levied on those who perpetrate them. Independently, however, of these statutory rules, it is a general principle, that whatever operation is noxious or unwholesome, or, if not so, at least renders life uncomfortable, must be removed.1 Thus, it was found that a butcher was not entitled to slaughter cattle in his back area, in the immediate vicinity of houses within burgh; but that he was entitled to expose meat for sale in the front area, provided he erected a shed over it, and paved the area. A building for the purpose of boiling whale blubber was not allowed to be erected at the end of a town.3 A work for boiling blood, as an ingredient in the manufacture of Prussian blue, was not allowed to be conducted in the neighbourhood of a populous village.

4

Where a manufactory has been in existence, it would only be in a peculiarly strong case that any addition to the operations would be removable as a nuisance. Thus, it was held that roasting the black ashes of soap in a soap-manufactory was not so great an additional nuisance as to warrant interference. A person who moves to the vicinity of a nuisance is not entitled to complain.6 Length of time will sanction what would otherwise be an undoubted nuisance. Thus, the proprietors of the land, through which the stream which carries the filth from the public sewers of Edinburgh towards the sea passes, having been in the habit, for more than half a century, of damming up the water and filth for irrigating and manuring their land, were found entitled to do so, though the effluvium was extremely offensive; and it has even been maintained, though not decided, that though at the early period to which the usage dates, the operation was on a much smaller scale, and much less offensive than it has in later times become, the length of usage gives a prescriptive right to pursue the system to the utmost extent to which the increasing population of the city, and the consequent increase of the sewerage, supply the means of carrying it.

The common-law remedy for a nuisance in existence, is an ordinary personal action, concluding either for cessation of the nuisance, or for cessation and damages. The question

Opinion of Chief Commissioner in Hart v. Taylor, 19th July 1827, 4 Mur. 313.-2 Palmer v. Macmillan, May 1794, M. 13188.-3 Dowie v. Oliphant, 11th December 1813.- Jameson v. Hillcoats, 24th June 1800, M. Property. Ap. No. 4.-5 Balleny v. Comb, 3d February 1813.Colvill. Middleton, 27th May 1817.7 Duncan v. Earl of Moray, 9th June 1809. F. C. See also Magistrates v. Skinners of Inverness, 20th January 1804, M. 13191.