CASES DECIDED IN THE COURT OF SESSION, &c. FIFTH SERIES.-VOL. III. COURT OF SESSION, COURT OF JUSTICIARY, HOUSE OF LORDS, July 20, 1900, to July 29, 1901. NOTICE TO BINDER. Collect "Cases decided in the House of Lords," sigs. a and b, Part XX., and c (8 pages) from Part XXI. Also "Cases decided in the Court of Justiciary," sigs. a, b, c, and d from Part X., e from Part XIX., f from Part XX., and g (4 pages) printed herewith. Bind them in the above order at the beginning of the volume, immediately following the Index of Names. Cancel pages 597 and 598, and substitute those printed herewith, marked with an asterisk. A part of this page as marked should be left attached to the cancel pages in order that they may be bound in. Hunter v. lowing terms?" Constable, for the defender, stated to the Court, that No. 95. The case was then enrolled for disposal of the question of expenses. The pursuer moved for expenses, and argued ;-The apology which had been offered and accepted was equivalent to a verdict of the jury in favour of the pursuer, and consequently entitled him to expenses.' Argued for defender;-The Court should find that no expenses were due to or by either party. The defender's minute was not equivalent to a verdict of the jury in favour of the pursuer; it contained no admission that the defender had used the words complained of. The defender's minute, and the pursuer's minute of acceptance, came to nothing more than a settlement of the action. LORD JUSTICE-CLERK.-In this case the pursuer has succeeded in getting rid of a serious imputation upon his character, and I am of opinion that he is entitled to expenses. LORD YOUNG. I have some difficulty in this case, but in the circumstances I am not sorry to think-from what I know to be your Lordships' viewsthat it is not to be acted upon. My difficulty is this, that the pursuer does not by this minute establish the case which he must have established to the satisfaction of a jury before he could get a verdict, viz., that the words complained of were used calumniously and falsely by the defender, meaning thereby to represent that the pursuer had dishonestly appropriated £4. If the jury had found that the defender used the words complained of, but that these words did not mean that the pursuer had dishonestly appropriated £4, that would have meant a verdict for the defender, and there is nothing in this minute which negatives that possible finding by the jury, and so establishes the case which the pursuer must have established in order to get a verdict. But it is not necessary to do more than indicate my difficulty. I should have been disposed to give expenses to neither party. LORD TRAYNER.-I cannot say that I participate in the doubts which Lord Young has just expressed. I do not know that I have ever seen or heard of a tender which really amounted to an admission of the slander on which the action was laid. In my own experience actions of damages for slander have been settled very much on the lines on which the action here has been settled. The broad question raised in this case was this-The pursuer avers that the defender had slandered him, and he came into Court in order to clear his character of that slander-a matter of importance to anybody, but especially of importance to the pursuer, looking to the nature of the slander and to the position and office which he occupies. Now, what is the result? The result has been to vindicate the pursuer entirely from the charge made against him. What the defender says comes to this "I do not know that I used the language attributed to me, but if I did, and if it is 1 Faulks v. Park, Dec. 22, 1854, 17 D. 247, 27 Scot. Jur. 102; Mitchells v. Nicoll, May 24, 1890, 17 R. 795. * No. 95. capable of the meaning put upon it, then I express my regret for using such lanMar. 1, 1901. guage of the pursuer." That is an ample vindication of the pursuer's character. Hunter v. Russell. LORD MONCREIFF.-I am of the same opinion, and on the ground that the pursuer has obtained everything for which he brought the action, viz., the vindication of his character. As to the apology, I think that it is all that can be expected. The effect of such an apology is precisely the same as if the pursuer had obtained a verdict. If a pursuer goes on with his action after receiving an apology in such terms, he is, according to the case cited (Mitchells v. Nicoll 1), liable in expenses. THE COURT, in respect of the minute of tender and acceptance thereof, dismissed the action, and found the pursuer entitled to expenses in both Courts. P. R. M'LAREN, Solicitor-WALLACE & BEGG, W.S.-Agents. No. 96. THE CORPORATION OF THE CITY OF GLASGOW, Pursuers (Respondents). -Lees-M. P. Fraser. Mar. 1, 1901. MRS EMILY GEORGINA CARTER-CAMPBELL, Defender (Appellant).— Johnston, K.C.-Pitman. Police-Glasgow Police Act, 1866 (29 and 30 Vict. c. ccxxxv.), secs. 4, 328, 329, and 330—“ Ordinary public sewer"-Recovery of expense of construction from adjoining proprietors-Building erected on " a land or heritage adjoining road-"Land or heritage."-By sec. 328 of the Glasgow Police Act, 1866, the Corporation of that city is empowered to make provisions for draining in a suitable manner the portions of the turnpike-roads within the city and the public streets, and with that object to construct ordinary or special public sewers under the same. By sec. 329"the proprietor or proprietors of lands and heritages adjoining any part of a turnpike-road within the city or public street, in which no ordinary public sewer previously existed, shall severally be bound to relieve the Board (i.e., the Corporation) from the expense of constructing an ordinary public sewer for the drainage thereof, in proportion to the frontage thereto of their respective lands and heritages, and such amount may be recovered from them as damages, or may be levied from them by the Board in the same way as a special police assessment, so soon as, but not before, some building is erected on a land or heritage adjoining such road or street." Sec. 330 requires the Master of Works to lay before the Board a statement of the expense incurred in making any such sewer, and of the proportions due by each proprietor. Held by a majority of seven Judges (aff. judgment of Lord Pearson, diss. Lord Young and Lord Moncreiff) (1) that when a sewer had been constructed in a road and the whole expense ascertained and allocated among the proprietors of the adjoining ground in proportion to the respective frontages, the sums so allocated became due by the proprietors although payment was not exigible until a building had been erected on "a land or heritage adjoining the road"; and (2) that the existence of a farmhouse twenty-five yards from the road, which had been erected on a farm adjoining the road many years before the Act was passed, satisfied this condition, and made the proportion of the cost effeiring to the proprietor for the whole frontage of his lands at once exigible. Question, whether when a building has been erected on one property the cost of the sewer becomes exigible from the whole proprietors liable. Opinions pro et contra. 1 17 R. 795. June 11, 1901. rather recommends itself to me, is that this being a Scotch Act, and dealing No. 30. only with Scotch matters of fishing, and empowering Scotch Sheriffs to impose penalties, it was only meant to apply within the kingdom of Scot- Bryson v. land. If that be the true view, I think you will draw your line to the Phyn. medium filum of the estuary of the Solway, and when you come to the end of Scotch territory then I think there is a reasonable presumption that the provisions of a Scotch Act should not have any further force. But whichever view is taken of that it leads to the same result, namely, that this point A is within the limits, and therefore the conviction was right. But then the view suggested, and evidently the view argued to the Sheriff, was this: In the course of drawing your line eastwards you come upon a certain channel, and the contention was that this channel must be treated as the channel of an English river, and that that being so you were stopped from going any further south with your Scotch shore. I think there are no merits in that argument at all. This alleged channel, which varies from one and three-quarters miles to 260 yards wide, is just the lower part of the sands on which the retreating tide lingers longer than elsewhere, and it is filled by the waters of the rivers flowing into the Solway. There is no river there. There is a quantity of fresh water, but it is merely fresh water flowing down towards the sea, and it happens at this particular time to be filling that channel. I entertain no doubt that the conviction is right. LORD M'LAREN.-The difficulty arising on the construction of this Act depends on the physical conditions of the estuary of the Solway to which the Act applies. It is matter of common knowledge, and it is also found specifically among the facts of the case, that at low water of spring tides the whole of the tidal water of the Solway recedes to a great distance towards the south-west, the sea line being a line drawn from a point in the stewartry to a point on the English shore near Morecambe Bay. All the region of the Solway above that line is left dry at low water of spring tides, except a stream or current flowing through the sands of the foreshore, and although it is slightly brackish, consisting mainly of the waters of the various tributary streams which enter the Solway, this current or stream of course contains all the fish that are in the Solway at the time, and it would be in it that fishing would take place by unauthorised persons to the injury of the owners of the salmon-fishings. One object of the Act undoubtedly is to prevent fishing at low water as well as high water, and at all states of the tide. But, then, the boundary given by this statute as defining the coast or shore adjacent to the Annan is not a complete boundary. It defines the northern coast line of the Annan district, and then you have the sea line as the only other element of the bounding description. But the boundary is not completed from the extremities of the Annan district coast line to the points C and D marked on the plan where the low-water line ends. We must endeavour to complete this boundary the best way we can. I do not think it would do to suppose a straight line drawn from the mouth of the Sark to D, because that would be mainly over dry land. So we are shut up either to the line of the English coast or to some intermediate line known to the law. In either case the conviction would be good, because the low-water stream in which the appellants were |