tained by a party fearing any injury, which may not amount to a breach of the peace.1

SECT. 3.-Vagrancy.

The law of vagrancy in Scotland is not very distinct, and the principal statutory enactment regarding it relates to the state of society towards the conclusion of the sixteenth century, to which the present age only affords a faint parallel.2 After enumerating among those who are to be held as vagabonds, gipsies, soothsayers, " minstrels, sangsters, and taletellers," persons pretending to have been shipwrecked or to have suffered some other calamity, and able-bodied men of the labouring classes who will not work-the act includes "all vagabond scholars, of the Universities of St Andrews, Glasgow, and Aberdeen, not licensed by the rector and dean of faculty of the university to ask alms." The punishment awarded by the act is now obsolete, it was scourging, and burning through the ear with a hot iron. The judges to whom it gave the enforcement of the act were, in burghs, the magistrates; and in landward parishes "him that shall be constituted justice by the king's commission." The procedure was to be by verdict of assize or jury-a method of inquiry not now followed before justices of the peace in Scotland. It is believed that in practice justices can derive but slight guidance from the terms of the act, and that they generally follow a series of precedents in which short imprisonments have been awarded against persons who, able to work and palpably refusing to be employed, lead a disorderly and apparently predatory life. When such persons commit the more serious offence of imposture, the sheriff generally subjects them to a higher punishment.3

By the poor law act, a certain class of vagrants are nominally brought within the act 1579; but both the jurisdiction and the punishment of the old statute are specially superseded. Husbands who desert their wives, and parents deserting their children, or failing to support them, being able to do so, and allowing them to be chargeable on the parish, are liable to fine or imprisonment with or without hard labour. The rule applies not only to the parents of legitimate, but to those of illegitimate children "after the paternity has been admitted or otherwise established."4 Another class of persons liable to prosecution under this act

2

Tait's J. P., 275.- 1579, c. 74.- Tait's J. P. 542.- 8 & 9 Vict. c. 83, § 80.

as vagrants, are paupers removed from Scotland to their settlements in England, Ireland, or the Isle of Man,-according to the powers vested in the sheriff or two justices when such paupers become chargeable,-who return, and without having obtained a settlement, become again chargeable on the board which has caused them to be removed. The punishment is imprisonment, with or without hard labour, not to exceed two months in duration.1 In both cases the enforcement of the statute is specially assigned to the sheriff, and it does not appear that justices of the peace have jurisdiction in the matter. Several acts have been passed for the removal of Scottish paupers from England, the last of which is the 8th and 9th Vict. c. 117. By this act, parochial boards believing that any removal of paupers to Scotland is not justified by law, obtain redress by application to the English poor law commissioners.

SECT. 4.-Cruelty to Animals.

It has been provided by statute that persons wantonly torturing or beating cattle or domestic animals, or causing mischief by negligence or ill usage in driving cattle, may, on conviction before one justice, be fined a sum not less than 5s. or more than 40s., over and above any damage occasioned, or in default may be imprisoned for not more than fourteen days.3 Persons keeping rooms where animals are baited or made fight, are liable to a penalty not less than 10s., or more than £5.4 Persons who keep slaughtering places, must kill animals brought to such places within three days, and in the mean time provide them with food, under a penalty not less than 5s. or more than 40s.5 It has been doubted if the act applies to Scotland. Doubts in the case of Ireland were cleared up by 7th Wm. IV. & 1 Vict. c. 66. By a subsequent act some regulations contained in that of the 5 & 6 of William IV., relating to the licensing of places for slaughtering horses, were amended," but the same doubt of applicability to Scotland applies to the amendment. These statutory regulations are understood to be enforced by some magistrates, but it has never been doubted in Scotland, and indeed is matter of practice every day, that sheriffs and justices may at common law, and independently of statute, punish with fine or imprisonment those who are guilty of cruelty to animals, by over-loading, by excessive chastisement, or for

18 & 9 Vict. c. 83, § 79.-2 Ibid. §§ 79, 80.-3 5 & 6 Wm. IV. c. 56, § 2. -1 Ibid. § 2.—5 5 & 6 Wm. IV. c. 59, § 8.—° 7 & 8 Vict. c. 87.

the gratification of wanton mischief. The setting of dogs, cocks, or other animals to fight, is a species of disorderly conduct frequently punished by fine or imprisonment.

SECT. 5.-Gambling.

Persons gaining at cards or dice within twenty-four hours, or by a wager on horse-racing, any sum above £5, 11s. 1 d., forfeit the surplus to the poor. It has been enacted that a person who gains by fraud at play, or gains at one sitting above £10, forfeits five times the value of his winnings to any person who will sue for it; and is liable to the punishment of perjury.2 Any two justices may cause a person suspected of supporting himself by gambling to be brought before them; and if he do not make it appear that the principal part of his income is derived from other sources, they are to bind him over to good behaviour for a year, or commit him if he find no surety. If he afterwards play or bet for any thing exceeding the value of £1, he commits a breach of surety.3

There have been some alterations of the gambling acts, by late statutes, of which it would be very difficult to say how far, if at all, they are operative in Scotland. In 1844, two acts were passed for suspending proceedings by common informers, the machinery of which is entirely English, among other things requiring all criminal proceedings to have "the consent of Her Majesty's Attorney General for the time being, under his hand in writing," while the acts are declared to extend to "the United Kingdom of Great Britain and Ireland."4 These acts have expired; but a measure was passed in 1845, for permanently effecting an adjustment of the laws against which they were employed as a temporary remedy, called "an act to amend the law concerning games and wagers."5 By this act, the statute of the ninth of Queen Anne, above referred to, is avowedly repealed, but it would be very difficult to determine whether the repeal extends to Scotland. The permanent act is not like the temporary statutes professedly extended to "The United Kingdom of Great Britain and Ireland," but, on the other hand, there are no avowed local limits to its application; and while some enactments are necessarily confined to England, because they apply to the English courts of law, or alter old English statutes, there are other provisions which, from the

1621, c. 14.2 9 Anne, c. 14, § 5. Ibid. §§ 6, 7.- 7 & 8 Vict. c. 3, & 58.- 8 & 9 Vict. c. 109.

generality of their character, might with some show of reason be held to extend to Scotland.

SECT. 6.-Lotteries.

When acts were passed from year to year for the purpose of raising a revenue by state lotteries, they generally embodied provisions for restraining private gambling in the lottery, and against parties instituting private lotteries. There are many acts of great length and complexity of the eighteenth century for the suppression of private lotteries, but the extent to which they are applicable to Scotland is doubtful. Some of them were amended and consolidated by an act of 1787,1 which, as it removed certain powers which were previously in the justices of peace to the English common law courts, was found to be inapplicable to Scotland. It appears, however, to have been held in the same case, that the courts of law have power without statute to suppress lotteries and punish those concerned in them.3 A statute of Queen Anne, which enacts against persons engaged in lotteries a penalty of £500, one third going to the crown, one third to the poor, and one third to the informer, appears to be held applicable to Scotland.*

2

By an act of 1836 the advertising in Britain of any lottery not authorized by some act of parliament, whether it be to take place in this country or abroad, renders a party liable to a penalty of £50, recoverable in the Court of Session.5 By a later act, the penalty can only be pursued for at the instance of the crown. 6

By an act of 1846 " for legalizing Art-Unions," institutions for the sole purpose of distributing prizes in the shape. of works of art, are exempt from the laws against lotteries, provided they be constituted by royal charter, and their rules have the approval of the privy council. When an institution is considered to be perverted from its legitimate purposes, the charter may be withdrawn.7

127 Geo. III. c. 1.-2 Fraser v. Sprott, M. 9524. Hutch. J. P. ii. 373. Ibid.- 10 Anne, c. 26, § 109. Hutch. J. P. ii. 371.—5 6 & 7 Wm. IV. c. 66.6 8 & 9 Vict. c. 74. 9 & 10 Vict. c. 48.

CHAPTER V.

TRESPASS AND INJURY TO LAND.

SECT. 1.-Damage.

TRESPASS is generally prosecuted in terms of the small debt acts, when the damage claimed comes within their operation. Independently of a claim for civil damages, there are statutory penalties against persons who damage the grounds of others. Any person destroying a fence, or leaping over it, or driving cattle over it, is liable to a penalty of £10 scots, half to the owner, and half to the fund for roads and bridges.1*

3

Cattle, &c.-Persons who have cattle, sheep, &c., must appoint herds to take charge of them, and keep them from injuring neighbouring property; and where animals are found straying on property, the owner may impound or detain them, until he be paid half a merk for each animal, and compensation for any injury done to his corn, grass, or plantations.2 Whoever so impounds cattle, must put them in a place suited for their proper custody, or be liable to damages. He must feed them, under penalty of 5s. per day for neglect, being entitled to recover the expense before a justice of peace, or to obtain it by sale of the animals after seven clear days, on three days' notice. After an animal has been twenty-four hours in a pound without food, any one may enter the pound and supply food.5 To entitle to the penalties for trespass, it is not necessary to detain the animals, the trespass admitting of ordinary proof."

Trees, &c.-Where a tree is maliciously destroyed, the owner, or any inhabitant of the parish, may complain to any two justices, who, on conviction, may commit the offender to the house of correction to be kept at hard labour for three months, or to prison for four months if there is no house of correction. The act orders frequent whipping; but this punishment has fallen into desuetude in Scotland. destroying or carrying off plants of forest trees, or shrubs of the value of 5s. from gardens or nurseries during the night

Persons

1 1685, c. 39.-* See above, p. 234.-2 1686, c. 11. E. iii. 6, 28.-3 E. iii. 6, 28.-45 & 6 Wm. IV. c. 59, §§ 4, 6.- Ibid. § 5.-6 Shaw v. Ewart, 2d March 1809.-71 Geo. I. sess. 2, c. 48, § 2.