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1ST DIV. Act 1579, cap. 8 (70), ordained generally that no market or fair should be held on Sundays under the lane v. pain of the escheat of the goods. County Then in 1592 another statute of King James VI. Council of made it lawful for all towns which formerly had the Lanark. right of holding markets on Sunday "to elect and choose" any other day in the week for the holding of the markets. Nothing further is said in the statute as to how the election and choosing fell to be made, and so far as appears there is no written record of the choice having been made or of the time at which it was made.

May 17,

1921.

In Sinclair's Statistical Account of Scotland published in 1793 it is stated that "Strathaven has a weekly market and a number of annual fairs," but the day of the week is not mentioned.

In the New Statistical Account of Scotland published in 1845, however, a fuller statement by the minister of the parish (the Reverend William Proudfoot) is given; and in view of the oral evidence to which I am about to refer I shall quote the passage verbatim: "We (in Strathaven) have a regular market every Thursday which is well attended and much business done. The country people have a very bad practice of not coming to market till 4 or 5 or perhaps 6 o'clock in the evening. They seem to think that by doing this they gain a day's work, but they must in consequence be often late in returning to their families. It is strange that though there are here weekly markets and a great number of fairs there are no markets or times fixed for hiring servants."

Two comments on this passage are suggested by the oral evidence. The first is that there was ample corroboration of the "bad practice" referred to having continued right on to about the year 1904. It was proved that to accommodate the farmers who came into town late on Thursday, the banks, closing for two hours in the afternoon, were opened again from 6 till 8 o'clock at night. This re-opening of the banks in the evening on each Thursday of the week seems to me to be one of several indications of Thursday being the market day.

The other comment is that it was proved that four fairs were held in the year and that all those four fairs were held on Thursday. I may add that sometime subsequent to 1845 (perhaps in consequence of the Rev. Mr Proudfoot's suggestion) two of the four local fairs were used for the hiring of servants.

In my opinion statistical records of the parish of the kind I have been referring to may be used as adminicles of evidence on the question under consideration, giving as they do the testimony of those living at the place who were personally acquainted with the facts and who were recording what they knew without interest or bias with reference to matters beyond the memory of witnesses now living.

Evidence of a similar kind is afforded by two little local histories. The earliest is entitled, A Short Sketch of the History of Strathaven, and the

author was William Mack, a native of the place. The book was originally published in 1811 by a printer in Strathaven, and it was reprinted in 1911. It refers, but only in a general way, to the markets, stating that there had been a regular market in Strathaven from the time it was constituted a burgh. A later local history is more explicit. published in 1880 by the late Miss Mary Gebbie, and she and her forbears were natives of the district. The book is entitled Sketches of the Town of Strathaven and Parish of Avondale, and under the

It was

head of markets there is the statement: "Besides the weekly market on Thursdays various fairs are held." As regards the oral evidence, several of the pursuers' witnesses admitted that up till 1904 Thursday was in fact recognised and held as the market day, and, in my opinion, these admissions by the pursuers' witnesses, taken along with the definite testimony of two local witnesses adduced by the defenders, put the matter beyond doubt. The truth is that the only ground for suggesting Tuesday as the market day is that the local auction company, incorporated in 1904, made Tuesday their sale day, with the result that farmers and others who, before the institution of the auction sales on Tuesday, had come to town on Thursdays, ceased to come on Thursdays and came instead on Tuesdays. In other words the case for the pursuers proceeds on the erroneous assumption that in the way described the auction mart day has, subsequent to 1904, been the market day. A market day, constituted as it must be "by charter or Act of Parliament or otherwise by prescription implying a grant," is not superseded by incidental changes made for temporary convenience. Bell's Principles, 664; Blackie, 1884, 11 R. 783, aff. 13 R. (H.L.) 78.

To sum up: Having considered the oral evidence along with the original charter of 1450, the Scottish statutes and the statistical and historical records to which I have referred, I am of opinion that the pursuers have failed to establish that the poll held on Tuesday, 9th November 1920, was held on the market day of Strathaven. That finding is sufficient for the decision of the case. I may add, however, that the reasonable and indeed the necessary inference from the evidence seems to me to be that Thursday was and still is the legally constituted market day, and that, as regards the poll in Strathaven, Thursday is the market day contemplated in section 5, subsection (3), of the Temperance Act of 1913.

It follows that the procedure adopted in connection with the poll in Strathaven must be held to have been regular and in accordance with the statutory provisions, and I must assoilzie the defenders.

The pursuers reclaimed, and the case was heard before the First Division on 13th, 14th, and 17th May 1921.

Argued for the Pursuers: Tuesday was de facto the market day in Strathaven, and the prohibition of the statute was aimed at the day on which there was in point of fact a concourse of people assembled for the purpose of buying and selling. The object of the prohibition was strictly practical, and the subsection was not at all concerned with ancient rights of market, or market days however formally established and however old, if as a matter of fact such Further, the days were not now observed. pursuers denied that Thursday was the market day in Strathaven in any sense. As the defenders averred, the market day used to be Sunday. When Sunday was forbidden, it was quite possible that the people of Strathaven chose Thursday, and observed Thursday for a time. They had now chosen Tuesday, and had observed Tuesday for a considerable period. They might at any time change their minds and choose

another day. No formal method of choice had
been prescribed by any statute. Thus Tuesday
was their market day both de facto and, so to
Counsel referred to Bell's
speak, de jure.
Prin., section 664; Maxwell on Statutes, pp. 95
and 98; the Shops Act 1912 (2 Geo. V. cap. 3),
First Schedule.

case,

County

May 17, 1921.

market day which the local authority may fix. 1ST DIV
It is the expression "market day" which has Macfar-
led to difficulty. It appears that in the statu- lane v.
tory area formed by the parish of Avondale a Council of
poll was demanded and taken. The town of Lanark.
Strathaven-not being a royal or police burgh-
is situated within and forms a part of that area,
and it was the actual locality of the poll. The
poll was taken on a Tuesday. The pursuers say
that Tuesday is a "market day" in Strathaven,
and they impugn the legality of the poll on the
ground that it was contrary to the statute to
take the poll in the area of the parish of Avon-
dale on a day which was a "market day" any-
where within the area. The defenders answer
that Tuesday is not a "market day" in Strathaven
Thursday, they say, is the "market day" there.
Both days have claims to the distinction of being
"market day"; and a decision on these rival
claims turns on the true meaning of "market
day" as used in the enactment in question.

Argued for the Defenders: The words "market
day" in the statute referred to that day in the
week which was the legally constituted market
day of the town in question. An Act of
Parliament must be assumed to use words in
their proper legal sense, and not loosely or
popularly. A market day could only be estab-
lished by charter, or by Act of Parliament, or
by prescription. It was something quite
different from a marketing day or a day on
which an auction mart was held. There was
no doubt about the original grant in the present
and no doubt that when Sunday markets
were abolished Thursday became Strathaven's
market day. It must be assumed at this I imagine it would not be disputed that the
date that everything had been done "rite et word "market" designates a meeting of persons,
solemniter," and thus Thursday was the legiti- held on stated days and in some particular
mate successor of Sunday. Tuesday's market, if locality, for the purpose of making private
market it could be called, was an innovation, bargains of purchase and sale in merchandise of
and had no legal character at all. Thursday some kind or other; and that any one of the
was therefore still market day in Strathaven. stated days on which such a meeting occurs is
Counsel cited Pease and Chitty on Markets, a "market day." Now, the root of the dispute
pp. 1 and 2, and the case there cited, Downshire between parties in this case is that the defenders
v. O'Brien, 1887, 19 L.R.Ir. 380, per Chatterton
V.-C. at p. 390; the Market and Fairs (Weighing
of Cattle) Act 1891 (54 & 55 Vict. cap. 70),
section 4; Henderson v. Earl of Minto, 1860, 22
D. 1126; Blackie v. Magistrates of Edinburgh,
1884, 11 R. 783, per Lord Fraser at p. 789;
Benjamin v. Andrews, 1858, 5 C.B. (N.S.), 299;
Craie's edition of Hardcastle's Interpretation of
Statutes, 2nd ed., p. 169; Marwick's List of
Markets and Fairs now and formerly held in
Scotland; and the following dictionaries, s.v.
"Market," Imperial, Stormonth's Scottish,
Bell's, Wharton's, and Stroud's Judicial.

On 17th May 1921 the Court, inter alia, recalled the interlocutor of the Lord Ordinary, reduced the documents sought to be reduced, and found declared, decerned, and ordained in terms of the other conclusions of the summons.

The Lord President (Clyde).-The question for determination on this reclaiming note is one of statutory construction with regard to one of the provisions of the Temperance (Scotland) Act 1913. Under that Act, in any statutory area, on compliance with certain conditions, a poll can be demanded with regard to certain questions of licensing policy. It is provided by section 5, subsection (2), that when such a poll is taken in any area, all the certificated premises in such area are to remain closed. And then, by subsection (3) of the same section, it is enacted that such poll shall be taken on any day not being a

maintain that the days must be stated days in
the sense that they have been appointed, either
by charter or Act of Parliament, with reference
to what in Scotland were anciently known as
the privileges of a market, or to what in England
they call the franchise of a market. The answer
which the pursuers make is that the days may
be stated days in the sense that they are publicly
recognised, used, and observed, as days on which
a market is held, apart altogether from appoint-
ment by charter or Act of Parliament. In the
debate the expression "de facto market day" was
conveniently used to describe the latter concep-
tion of the meaning of "market day," and the
expression "de jure market day" to describe the
former conception of it.

The result of the proof which was taken in
the case is to shew that the town, or, as it is
called in the charter, "village," of Strathaven is
a burgh of barony, and that market privileges
were granted to its inhabitants by the ancient
charter of the barony, and that the day assigned
for the market by the charter was Sunday. At
a somewhat later date the holding of markets
on Sunday was declared illegal by Act of Parlia-
ment, and the inhabitants of such privileged
localities as Strathaven-by which I understand
the magistrates who represented them-were
authorised to pass a resolution fixing the market
for some other day. Whether they did so in
Strathaven, in form and in fact, nobody knows.
But it must, I think, be assumed that they did,
because for far more than forty years after the

Macfar

Council of

1921.

statutory market rights or privileges, and the view that it is to be taken in its broad popular sense. According to the former, it is immaterial that actual marketing on the market day has fallen into complete desuetude; according to the latter, it is immaterial that the market day has behind it no sanction except public recognition, use, and observance. I do not think there is room for any middle interpretation. It was suggested in the course of the debate by the Dean of Faculty-and it is a suggestion which had considerable attraction for me--that the word might be held to mean a market day in the legal sense, on which there was, in point of fact, marketing done. But I am afraid that to

invent an entirely original meaning. The word has either its technical meaning or its popular one; and I do not think we should be entitled to invent any original or ad hoc interpretation, unless there was something in the context which justified and required it. There is, however, nothing of the kind.

1ST DIV. passage of that Act of Parliament a market was held in Strathaven regularly every Thursday. lane v. This long practice leads to the conclusion in law County that, though all trace of any resolution under Lanark the Act of Parliament is lost, there was such a resolution by which, in form and in fact, Thursday became the constitutionally appointed market day. But the fact is that for something like twenty years past there has been no market on Thursdays. The actual marketing has been transferred to the de facto market day, namely, Tuesday. No resolution altering the market day to Tuesday has been passed by the magistrates. Indeed, this burgh of barony, like many others of similar status, has had no magistrates elected-not even, we were told, a baron bailie-attribute such a meaning to the word would be to within the memory of man; and probably no second resolution would have been competent even if magistrates had been in existence. It is not a circumstance favourable to holding Tuesday to be the market day that the change seems to have been largely the result of the institution of a live stock auction mart in Strathaven which held its sales on Tuesday. Sales by auction have nothing to do with the idea, either legal or popular, of a market. But the mere fact that the auction sales in the live stock mart may have had a good deal to do with attracting people to Strathaven on Tuesday, and concentrating business of other kinds on that day, does not detract from the fact (which I hold to be clearly proved) that the people who regularly resort to Strathaven on Tuesdays do hold a market de facto in which a considerable traffic by private bargain is carried on in provisions, seeds, implements, manures, and other merchandise. This market is in all respects-apart from the origin and history of the selection of the day on which it is held-the same as those held in many county towns by neighbouring farmers and traders in agricultural requisites and produce. In short, while de jure Thursday is still technically the market day, de facto Tuesday is the actual market day, and has been the actual market day for something like twenty years. There are, I understand, other similar instances to be found in Scotland-but not many-of the abandonment in recent times of the ancient market day for another, better suited to local conditions and requirements; and where, as in the case of the Strathaven Tuesday market, the business is done by meeting other farmers or traders in the street or on the village green, no occasion arises either for asserting ancient market privileges or for enforcing

ancient market restrictions.

The question then is whether in this state of facts Tuesday is market day in Strathaven within the meaning of the Temperance Act. We have to choose between the view that the expression "market day" is to be taken in the strict technical sense in which a lawyer would use it if he were discussing a question of chartered or

There are reasons which are obvious enough why a concourse of the two events-polling day and market day-was regarded by the framers of the Act as undesirable. To shut all the licensed premises in the area on the day of a poll which is concerned with a question of licensing policy is an intelligible precaution against influence; while to shut them on a market day is to cause needless inconvenience and annoyance. The Act of Parliament is framed in view of both these considerations. But it is difficult to imagine any ground upon which it could be thought to be undesirable to hold the poll upon a day which was indeed legally a market day, but upon which no marketing whatever was done. I ventured to say, during the debate, that to attribute that meaning to the enactment would be to reduce it to an absurdity. On the other hand, it is most intelligible that the Act of Parliament should intend that a de facto market day is to be avoided, and I am for construing it accordingly. I think, therefore, that the Lord Ordinary's judgment ought to be recalled.

Lord Mackenzie.-I am of the same opinion. The question for our decision is what is the proper construction to be put upon section 5 (3) of the Temperance (Scotland) Act of 1913, which provides that a poll shall be taken on any day "not being a market day."

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I adopt as applicable to the present case the rule of construction to which we were referred in Maxwell on Statutes, at p. 95. I think it is our duty to give to the words "market day the meaning which best harmonises with the object we consider the framers of the statute desired to see attained. I do not think we are here dealing with a legal term which it is necessary to interpret in a legal sense, with reference, it

may be, to feudal grants. I think it plain, from a consideration of the provision of the Act, that its object in section 5 (3) was to prevent a concourse of persons in such a place as Strathaven for the purpose of buying and selling, and for the purpose of recording their votes at a poll under the Act, on the same day. And if, as in the present case, there is a clear body of evidence, practically uncontradicted, that de facto the day upon which there is in use to assemble in Strathaven a concourse of persons for buying and selling is Tuesday, then I think, within the meaning of the statute, Tuesday is not a day on which a poll could be legally taken; or, in other words, that the language of the statute is to be taken in a popular and not in any technical sense.

That being the case, I think it is quite clear that we are in a position, on the evidence in the case, to make a finding in fact that de facto Tuesday is the market day in Strathaven. Accordingly, I reach the same conclusion as your Lordship.

County

1921.

together of people, at a stated time and place, 1ST DIV.
for the purpose of traffic (as in cattle, provisions, Macfar
wares, etc.) by private purchase and sale, and, lane v.
usually, not by auction; also, the people assembled Council of
at such a meeting, as, a market is held in the town Lanark.
every week." He then proceeds to give other May 17,
meanings of the word "market," and his fourth
heading is "English law-the privilege granted
to a town of having a public market." I hold
that, in this particular statute, the expression
"market day must be construed in a practical
and popular sense, and that the pursuers bere
have proved, as indeed it is admitted that they
have proved, that Tuesday is, in that sense, the
market day of the burgh of Strathaven. It
follows that the pursuers are entitled to the
remedy for which they ask.

Lord Cullen. I have felt some difficulty in
this case, and I am not at all suprised that the
County Clerk should have taken the view he
did take of the meaning of the words of the Act.
But on a consideration of the practical objects
of the provision which we have to construe, I
think one is forced to the view which your
Lordships adopt.

Counsel for Pursuers, Macquisten, K.C., Keith ;
Agents, J. Miller Thomson & Co., W.S., for
Ballantine, Haddow & M'Lay, Solicitors, Glasgow.

Counsel for Defenders, Dean of Faculty (Con-
stable, K.C.), Graham Robertson; Agents, Carmichael
& Miller, W.S., for Sir Thomas Munro, County
Clerk of Lanark.
M. D.

Lord Skerrington.-In construing this enact-
ment we have to keep in view its subject-matter
and object. Its subject-matter has no connection
with the right and privilege of holding a market,
or with the regulation of a market. Its object
is to prevent a supposed inconvenience which
might arise from holding a poll under the
Temperance Act upon the same day in which
a market is held. Prima facie, therefore, a
"market day" within the meaning of the Act
is a day which is recognised as such by the
public, and on which business of the kind usually
transacted at a market is transacted at the place
or within the area contemplated by section 5 (3)
of the Act-in the present case Strathaven, a
burgh of barony which is included within the
area (the parish of Avondale) to which a no-
licence resolution was sought to be applied.
Having regard to the purpose of the enactment
it is difficult to see the relevancy of the question
whether the market regularly held at Strathaven 17. Gore Westfield Autocar Company

FIRST DIVISION.

(The Lord President, Lords Skerrington and
Cullen.)

15th June 1921.

Limited.

Process-Reclaiming note-Signature-Right of party litigant to sign reclaiming note-Held that according to practice reclaiming notes must be signed by counselParty litigant allowed in exceptional circumstances to

sign.

Single Bill.

every Tuesday is so held by authority of a royal
charter or Act of Parliament. It may be the
fact, for all I know, that the legal theory that
a market cannot be held except in virtue of
some lawful authority found its reflection at one
time in the life and habits and ordinary language
of the people of Scotland, and that few, if any,
de facto markets were held which were not also
markets de jure. If that was so, then a "market
Alexander Gore, Leith, brought an action
day" would be understood to mean a day on against the Westfield Autocar Co., Ltd., Edin-
which a market established by lawful authority burgh, in which he, inter alia, concluded for
was or might be held. As regards the present £10,000 damages for breach of contract.
day, however, I do not think that according to was allowed and led, and on 24th May 1921 the
the ordinary use of language in Scotland the Lord Ordinary (Anderson) assoilzied the de-
words "market" and "market day" bear that fenders. The pursuer reclaimed, and on 14th
meaning. I think that, when one speaks of a June 1921, in Single Bills of the First Division,
market, one generally means what Mr Webster the pursuer in person moved the Court to send
in his Dictionary describes as "A meeting the reclaiming note to the Roll. Counsel for

Proof

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The opinion of the Court was delivered by: The Lord President (Clyde).—I cannot say that the reclaimer has satisfied me that there is any good reason why his reclaiming note is not signed by counsel. There is no statute and no Act of Sederunt which regulates the matter, but the practice of the Court has invariably been that reclaiming notes should be signed by counsel. There are only one or two instances in the books (Brown v. Whyte, 1900, 2 F. 1039; Davies v. Davies, 1901, 4 F. 3) in which by indulgence a party litigant was allowed to sign his own note. Now the present reclaimer is pleading his own case, and it may be that difficulties connected with his ignorance of the procedure of this Court are the cause of the note appearing before us in its present form. As a special indulgence in the particular circumstances we shall therefore allow the note to be received, but it must be clearly understood that this indulgence will form no precedent for other

cases.

For Pursuer, Party.-Counsel for Defenders, Garrett; Agents, T. & W. Liddle, Maclagan & Cameron, W.S. M. D.

COURT OF TEINDS.

(The Lord President, Lords Mackenzie, Skerrington, Cullen, and Blackburn.)

18.

27th May 1921.

Mackenzie-Petitioner.
Simpson-Petitioner.

Church-Expenses-Glebe-Application for authority to feu-Expenses of application a permanent burden upon glebe until paid off by sinking fund composed of invested casualties and payments for roads, etc., by feuars-Glebe Lands (Scotland) Act 1866 (29 & 30 Vict. cap. 71), sections 18 and 19-Abolition of casualties in future feus-Feudal Casualties (Scotland) Act 1914 (4 & 5 Geo. V. cap. 48), section 18-Observations, per curiam, on the effect of the Act of 1914 upon the sinking fund provided by the Act of 1866.

Petitions.

The Rev. Neil Kennedy Mackenzie, minister of the parish of Longforgan in the Presbytery of Dundee, presented a petition to the Court of Teinds for authority to feu the glebe of the parish. The Rev. James S. Simpson also presented a petition for authority to feu the glebe of Kennoway. On 12th December 1920 the Court authorised the former petitioner, and on 28th January 1921 the latter, to feu the glebes of their respective parishes.

The Glebe Lands (Scotland) Act 1866 (29 & 30 Vict. cap. 71) enacts:

Section 18. The Court, on the granting of any such order or interlocutor, or at any time thereafter, on the summary application of the minister on whose his heirs, executors, administrators, or assignees, application the interlocutor or order was granted, or shall enquire into and ascertain the sums which shall have been paid as the costs, charges, and expenses of applying for and obtaining such order or interlocutor and incidental thereto, and of making and constructing streets, roads, passages, sewers, or drains in or decern the amount thereof a permanent burden upon through the glebe or any part thereof, and shall the glebe; and the interest thereof, until extinguished, as after provided or otherwise, shall form a first charge on the whole produce and revenue of the said glebe.

Section 19. As long as any such burden shall remain unpaid the casualties of superiority which tions, or charters of feu, or writs by progress for shall become payable under any contracts, disposientering heirs or successors to be granted as aforesaid, as well as any payments which may be received from the grantees thereof in respect of the construction of roads, sewers, or drains, shall be invested, at the sight of the heritors and presbytery, on such securities and in such manner as the Court of Teinds shall approve, as a sinking fund to meet the said burden, and the interest of the said fund shall be paid to the minister for the time being; and as soon as the said fund shall amount to a sun sufficient to pay the said burden, the same shall be paid off; and thereupon the casualties of superiority thereafter to become due shall form part of the income of the minister for the time being, and be payable to him.

The Feudal Casualties (Scotland) Act 1914 (4 & 5 Geo. V. cap. 48) enacts:

Section 18. In feus granted after the commencement of this Act the annual feu-duty shall be a fixed amount or quantity, and no casualties shall be payable to the granter of the feu or his successors in the superiority,

On 11th March 1921 both petitions were heard on the auditor's reports, when counsel for the petitioners drew the attention of the Court to the difficulty which was caused by section 18 of the Feudal Casualties (Scotland) Act 1914 (4 & 5 Geo. V. cap. 48). That section rendered inoperative the provisions of section 19 of the Glebe Lands (Scotland) Act 1866 (29 & 30 Vict. cap. 71), which laid down the sources from which the sinking fund was to be formed for the pay

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