to justify a claim of £5 for exposure in the streets of Coatbridge, and £5 more for a similar exposure in the streets of Motherwell. There is no cumulative penalty under this section. Under the 28th section a penalty of £50 is incurred by the party who pollutes a stream with certain substances; but it is payable only to the person into whose water the pollution is passed, and not to every one whose water is eventually polluted. Under the 99th section, if a nuisance is injurious to a district beyond that in which it is situated, the former cannot sue, but only compel the latter to sue. The 103d section contemplates the case of only one party suing. In short, the S.-S. thinks only one penalty can be enforced for one act contravening the 49th section. (2.) In the second place, it is to be considered, Can more Local Authorities than one sue for the single penalty exigible? On the analogy of the sections above quoted, the S.-S. thinks they cannot; and the view is supported by other considerations. It would obviously be very inexpedient that every district through which a sufferer passed should be entitled to make a claim; and there is nothing in the Act to indicate that it was intended one district should claim, but all the districts through which the sufferer passed share in the penalty obtained. The mode of apportionment might itself be a source of difficulty and litigation. The Act nowhere contemplates that the rule shall be 'first come first served;' nor is there anything in it to favour the contention that the penalty should be divided between the Local Authorities of the district that the sufferer left and that he came to. The districts traversed might have as much reason to complain as the district arrived at. Many districts, indeed, may have reason to complain of some infringement of the Act, but it would seem that only one is to have a right to sue under the statute for the penalty incurred. This is clearly instanced in the 99th section. (3.) In the last place it is to be considered, May either the district left by the sufferer, or that to which he has come, make the claim, or may only one do so, and if so, which? The reason assigned to justify the claim of such a right by the latter district is that the person is introducing the disease into the district, while it is already in the district he has left. In short, that its right to sue is due to its interest. But how if the disease is in both districts; or, as in this case, is probably worse in the district gone to? It surely never was intended that the title to sue for the penalty and the right to receive it are to be determined by a proof of the comparative amount of the disease in the two districts. In the second place, as regards this case, the girl, on arrival at the new district, was not in the personal charge of the person who sent her thither. In the third place, this is a question of statutory penalty, not of damages or solatium, and therefore not to be decided by the ordinary rules of reparation. In the fourth place, there will generally be a conveniency and propriety in the body to sue being the Local Authority of the district left by the sufferer. The delict occurred there. The domicile of the respondent is there. The forum of the suit is there. So are the witnesses. If (as in this case) a contravention of the 48th section is also libelled, there might otherwise be two litigations at the instance of different pursuers, with different results and at much expense. In the fifth place, it is on the Local Authority of the district in which the sufferer is that under section 40 the duty falls of providing for his safe conveyance to an hospital. In the sixth place, on the analogy of the case under sections 28 and 99, already referred to, the party to sue is the party where the exposure begins and the evil originates. The polluting fluid may perhaps affect only a few yards of the water belonging to the proprietor at the point of discharge, but may injure miles of water to the lower proprietor. Yet the latter, however good his grounds may be to sue at common law for damages, has no right to sue for the penalty imposed by the statute. Mere interest apparently gives no title to sue under the statute. It was urged by the petitioners that the Local Authority of the district left by the sufferer might be only too glad to get rid of him, and say nothing about it. But it is not to be lightly assumed that a public body will selfishly neglect its duty. The fear of being so treated by others might alone suffice to prevent such impropriety; and sections 96, 97, 98, 99, provide means for making a Local Authority do its duty if it neglect it. The Sheriff-Substitute has very carefully considered this case, and elaborately discussed the point of law raised by it, since it is one of much general importance-one on which Sheriff-Substitutes unfortunately differ, and one on which, as there is no appeal, there is no means of attaining unity of decision, except by ascertaining general legal opinion. On the whole case he is of opinion that where the 49th section of the Act has been contravened, only one district has a right to sue, and that that district is the district where the exposure founded on begins. As the respondent has escaped punishment only by a technical difficulty, it is not a case where he can be allowed any expenses. J. M. L." Against this judgment the petr. appealed to the Sheriff, but the appeal was dismissed, as incompetent, by the following interlocutor: "Glasgow, 18th May 1874.-Having heard parties' procurators on the petr.'s appeal, and considered the process, for the reasons stated in the note hereto, Finds that the S.-S.'s interlocutor is not appealable to the Sheriff: Therefore dismisses the appeal. W. G. DICKSON. "Note. The petition in this case is for having the respt. subjected to the penalties provided by the Public Health (Scotland) Act of 1867, secs. 48 and 49. As by sec. 105 these may be enforced by imprisonment for a specified time, the case is of a 'criminal nature' under the definition in the Summary Procedure Act of 1864, sec. 28. Notwithstanding this, the S.-S.'s judgment would appear, on the authority of Dykes v. Merry and Cunningham (1869, 7 Macph. 603), to be appealable to the Sheriff but for the provisions in secs, 107 and 108 of the Public Health Act. The judgment proceeds on a proof of the facts of the case: and after certain findings in fact, it finds that the petrs. have no title to sue, and dismisses the petition, and 'decerns.' It is thus a decree pronounced after inquiry into the facts and consideration of the law, and it disposes of the case on the ground that the offence complained of was not committed within the locus averred in the petition, but at Coatbridge, over which the petrs. are not the Local Authority. Such a decree is not one of those mentioned as appealable under sec. 107 of the Public Health Act. The 108th sec. provides that 'no decree or order, or any other proceeding, matter, or thing done in the execution of this 'Act, shall, except as herein (i.e. by sec. 107) provided, be subject to review in any way whatever.' It cannot be disputed that the 'decree' was 'done in the execution of the Act' (words not very appropriate); for it was a judgment pronounced by the S.-S. having jurisdiction under it, on a petition brought before him, in order that he might carry out or 'execute' the Act by judging thereon; which he did, by holding that the petr. had no title to sue, and that the locus was wrongly set forth in the petition. W. G. D." THE JOURNAL OF JURISPRUDENCE. EMINENT LAWYERS OF THE LAST CENTURY. NO. IV.-LORD HAILES. JAMES DALRYMPLE, the first and great Lord Stair, was destined to be the ancestor of a singular number of eminent Scottish lawyers. Hew, his third son, after having held the office of Lord Advocate, succeeded his father in that of Lord President. The son and grandson of this Hew Dalrymple both obtained seats upon the Scottish Bench. David of Hailes, fifth son of Lord Stair, and said to have been the ablest of the family, was appointed a Commissioner for the Union, and afterwards Lord Advocate. The subject of this sketch, Sir David Dalrymple, Lord Hailes, was his grandson, and thus a direct descendant of Stair. He was the eldest son of Sir James Dalrymple of Hailes, his mother being a daughter of the sixth Earl of Haddington, and was born in Edinburgh on the 28th of October 1726. Having received an excellent education, first at Eton and afterwards at the University of Utrecht, he was called to the Bar in the year 1748. He never seems to have obtained an eminent position as a practising lawyer, although, according to one biographer, "he was much admired for the elegant propriety of the cases he drew." He was not a popular speaker, being unfortunate in both voice and manner. But the learning which he exhibited gained for him great respect in his profession; and in March 1766, after only eighteen years of practice at the Bar, he was, in the room of Lord Nesbit, elevated to the Bench. Ten years later he succeeded Lord Coalston as a Lord of Justiciary. It is, we need hardly say, as a literary man that Lord Hailes has earned for himself so eminent a name. Few professional men have ever exhibited such literary industry. His leisure time, both when an advocate and afterwards when a judge, must have been very fully occupied; for from 1751 up to 1790, works by him upon a surprising variety of subjects continued to pour forth from the press. The variety of his literary undertakings was even more VOL. XVIII. NO. CCXII. AUGUST 1874. 2 F remarkable than in the case of his brother judge, Kames. Besides editing and translating the works of others-he was a historian, a critic, a theological writer, a biographer, a poet, a satirist and dramatist-we find him treating in the heaviest and driest of manners our national annals; then indulging in English or Latin verses; or again, fired with a zeal for the Christian faith, exerting all his powers of logic, and making use of his stores of learning in an attempt to crush Gibbon; or then, in a more playful mood, quietly giving to the public some little jeu d'esprit. În a list of his works (including such anonymous publications as have been traced to him), prepared by a careful biographer, they amount to forty-eight in number; but this does not embrace articles contributed to the various magazines of the day. Perhaps the most valuable works of Lord. Hailes are those relating to the history of Scotland. As an historian he had no graces of style he dealt only with facts-dry facts, and valued a correct date more than an elegant expression. But in an age when authors were too much given to what was merely fine writing, and even historians drew upon their imaginations, Hailes did a good work. Although his annals were too dry even for the taste of Samuel Johnson, they called forth the admiration of that severe critic. He says, "It is in our language I think a new mode of history, which tells all that is wanted, and I suppose all that is known, without laboured splendour of language or affected subtlety of conjecture. I never before read Scotch history with certainty." Commencing with the reign of Malcolm Canmore, the history is brought down only to the accession of the House of Stuart; but in separate treatises he has thrown light upon the period of the later Stuarts. As a legal writer Hailes does not stand so high, nor did he do so much work, as Kames. Of course, as was the custom with eminent lawyers of that day, he prepared a set of reports. They were not however published until more than thirty years after his death. They embrace the period during which he sat on the Bench (17661792), and are valuable as a supplement to the Faculty collection for that period, because of the notes of the judges' opinions which they contain. In 1769 he published "An Examination of some of the arguments for the High Antiquity of the Regiam Majestatem." No subject affords greater scope for legal antiquarians than the inquiry into the origin and authority of this ancient work. The controversy is all the more inviting because there is involved in it a question of national credit. Did we steal or borrow our laws from our English neighbours; or did they from us? Was this work, as it professes to be, compiled for the benefit of King David, or is it merely an edition of Glanville adapted for Scotland? There are formidable authorities on both sides. On the one hand, Craig refuses to receive it as genuine, and his opinion is supported by that of Stair, who agrees with him in thinking that this work was stolen from England. On the other hand, Bankton and Erskine claim for it a Scottish origin, and throw discredit upon Glanville. In Hailes's time the controversy had revived. It was of a nature to engage his attention, and his knowledge of early Scottish history and law rendered him a very competent authority upon the subject. Into the merits of this controversy he indeed professes not to enter. "I do not pretend to determine," he says, "whether the author of Regiam Majestatem copied from Glanville or Glanville from him." But by his careful examination of the various arguments made use of by those who upheld the antiquity of the Regiam Majestatem, he certainly does little to strengthen them, and his own opinion obviously is-that although certain passages in the work may be genuine, the book as a whole cannot be accepted as a compilation of the early date which its advocates claimed for it. If of a later date, then the presumption in favour of its English origin becomes much stronger. One thing is characteristic of the author in this inquiry. At the very outset he calls attention to the fact that writers on both sides have contented themselves by appealing to the edition of the Regiam Majestatem published by Skene, and have not studied the various ancient MSS. of the work still preserved in different places. Hailes had with that carefulness and patience which distinguishes him as a writer gone over these, and come to the conclusion that Skene was a careless if not indeed an unfaithful publisher. Skene, of course, is a champion for the high antiquity of this book. Hailes had found, on comparing the various MSS., that there existed in them references to Glanville and to the decretals of certain Popes. In Skene the references appear not in the text, but on the margin. Now, as these references, if part of the genuine text, would have disproved the antiquity of the whole work, a suspicion is not unnaturally raised against the honesty of the publisher. In the inquiry into the authenticity of the Leges Malcolmi, published along with the work we have just been considering, Hailes followed up the labours of Kames, who had shown that these laws belonged to a later date than that of Malcolm II. The result of Hailes's inquiry was, in the opinion of Tytler, to prove that the work was not deserving of any credit, being an entire fabrication by some ignorant and unauthorized individual. The effect of this work of destruction begun by Kames, and continued by Hailes, has been to leave in obscurity the question of when and how the feudal system was introduced into Scotland. These pamphlets are, we think, interesting, as exhibiting not only the intelligence and learning which Lord Hailes could bring to bear upon such obscure subjects, but also his thorough dislike to anything approaching literary fraud. Even his patriotism does not bias his mind in the direction of overlooking or explaining away the objections raised to the genuineness of these works, and with a remorseless hand we see him sweeping away the fictions originated by national pride. There is an interesting legal argument by Lord Hailes preserved |