$5. STATUTE LABOUR -WHO LIABLE? Heritors. and other inhabitants in general; but failors who make coasting voyages, or to foreign parts, were found not to be liable, nor colliers, gatefmen, winleffmen, and watermen employed in coalworks &. HERITORS are not fubjected by the act 1669, c, 16; in any part of the burden, unless so far as may be neceffary for fupplying the deficiency in the statute labour". In the cafe of Paifley the de cifion was," That the whole inhabitants of the town of Paifley may be called out to repair the high-roads in time coming." In a reclaiming petition, a general exemption of all the inhabitants within the borough was not infifted for, but only in fa vour of merchants, artificers, tradefmen, as alfo peers, judges, clergy, men, women, &c. none of whom could come under the description of labouring men, tenants, cottars, or their fervants: "The lords adhered, and refused the petition, referving to the inhabitants, or any class of them who shall think themselves aggrieved, to apply for redress as accords." Ith Jan. 1758. Dict. V. iv, p. 201. f 24th July 1750, Hamilton against the inhabitants of Kirkcaldy. Fal coner. 87th March 1755, earl of Eglinton against the justices of peace for the county of Ayr. Di&t. V. iv, 201. The argument ufed was not only that those people were adfcripti glebe, and by 1 parl. Cha. II, feff. 1, act 56, obliged to work all the fix days of the week, except at Chriftmas; but also, that were coalliers diverted from their proper work for fix days yearly, irreparable damage might enfue to their mafters. This latter reafon may feem to justify the exemption even yet, if not in whole, at least partially, notwithstanding the alteration that has fince taken place in their condition. h" And because the work of the inhabitants within the feveral bounds will not be able fufficiently to repair the highways and others forefaid, therefore his majesty with advice and confent of the said eftates, doth hereby authorize and require the whole freeholders and heritors of the several fhires, to convene at the respective head boroughs, the faid first Tuesday of June yearly, and to call for an ac count from the juftices of peace of what is needful for the reparation of the highways and others forefaid, and what charges and expences requifite for promoving thereof, and for making or repairing bridges and ferries where they shall be found needful, and accordingly to ftent the heritors of the faid fhire, comprehending the heritors of the borough lands therein, in what shall be found neceffary for the effect forefaid, not exceeding ros. Scots upon each 100l. of valued rent in one year, which is to be uplifted by the faid juftices, oc whom they fhall appoint, by paind is STATUTE LIABLE? the ftatute THE act 1669, c. 16, appoints the sheriff, one of his de$ 5. putes, juftices of peace, or fuch of them to whom particular LABOUR parts of the highways fhall be committed, to call tenants, WHO cottars and their fervants, " by public intimation at the parish kirks on the Sabbath-day, immediately after the first Nature and fermon, or any other way that they fhall think fit, to have in extent of readiness, horses, carts, fleds, fpades, fhovels, picks, mattocks, labour. and fuch other inftruments as fhall be required, for repairing of the faids highwayes, and to conveen at fuch places thereof as they fhall be required, and in fuch proportion, and with fuch furniture, as the faids juftices or overfeers fhall appoint, and that in the most equal and proportionable way, as the faids juftices and overfeers will be answerable: with power to them to defign fuch of the faids perfons as they find to be moft skilful, to attend and direct the reft, and to appoint them fit wages for their attendance." Intimation. Inftru THOSE who have carts and horfes are bound to bring them, Carts and others to give their perfonal labour only, with fuch inftru- horses. ments as the act requires, or otherwife as the trustees may think proper. Neither have the statutes ascertained the num- ments. ber of carriages to be performed by each tenant according to the extent of his farm or otherwise; all this is intrusted to the difcretion of the justices. THE perfons liable must be convened, three days before the Seafon of laft of June, not being in feed time; and three days after the year. harveft yearly, until the highways, bridges, &c. be fufficiently repaired. This regulation, though chiefly calculated for the conveniency of the country labourers, yet applies to all equally who are liable to be called out. This act of 5 Geo. I, fo far repeals former acts, as to limit the time for ing as faid is, and employed for the use aforefaid, and of which they fhall be obliged to give an account to the faid heritors at the next Michealmas i5 Geo. I, c. 30, § 3. $5. STATUTE Places, calling out people liable to work before harvest, that it should be before the end of June". THE act 1669, c. 16, ordains the perfons liable in ftatute labour" to convene at such places as shall be required, and in fuch proportion and with fuch furniture as the faid juftices or overfeers fhall appoint, and that in the most equal and proportionable way, as the faid juftices and overfeers will be anfwerable." The ftatute 5 Geo. I, c. 30, fays on fuch days, and at such places, as the commiffioners or their officers fhall appoint1." k Dec. 17, 1760, Walker and Herd ag. Thomsons. The justices of peace of Kincardine having warned the tenants and labourers to come out to perform the statute work upon the 15th, 16th, and 17th days of August, and granted warrant for poinding the effects of the deficient, to the extent of the compofition - money; which was accordingly executed; the tenants whofe goods were poinded, brought an action for reftitution, and for damages and expences, against the justices, on the ground of their being called out in time of harvest, contrary to the act 5 Geo. I, which limits the term for calling them out, to be before the laft day of June The juftices infifted chiefly, that the ftatute was in non-observance, and that harvest was not actually begun, although the purfuers had cut fome green corn to give a pretence for their plea. The court of feffion decided, that the warrant granted for poinding was illegal, as the tenants were not fummoned within the time limited by the ftatute; and that. the juftices were liable in reftitu tion of the goods, and in expences of process. Of course, it is a perpetual law with regard to the other clause alfo, the time of exacting the work after harveft. The a& 1669, c. 16, had provided" that the number of days do not exceed fix days for man and horfe yearly for the first three years, and four days yearly thereafter, and that they be only betwixt the bear-feed yearly, and hay time or harvest thereafter." And the statute 1670, c. 9, upon the confideration that the time appointed by it for working at highways is limited betwixt feed time and harveft, and that it will be more convenient to work åt, and repair feveral highways at other seasons of the year, empowers, upon that account, the sheriffs and justices to require all perfons liable to work at and repair highways, bridges and ferries, to convene for the number of days they are liable, at any time or season which fhall appear most convenient, feed time and harveft excepted. 1 Justices of peace and commissioners of fupply for the county of Ber § 5. STATUTE LABOUR distance. PERSONS who live at fuch a distance, that they cannot go and return in the fame day and do a day's work, cannot be called out under any higher penalty than that specified by act -WHERE. 1670, c. 9. The act directs, "where the ways lie at Perfons livgreat diftance from those who are liable to repair the fame, ing at a that it fhall be leifome to the faid juftices and overfeers to difpence with those perfons who live at fuch a distance, they paying 6s. yearly for ilk man, and 12s. for ilk horfe, which ought to have been employed in the faid work." This is the only exception. Every other perfon must perform his ftatute labour, or pay 1s. 6d. for every day's failure, unlefs he fend a man to work for him ". PAYMENT of the penalties may be enforced by diftrefs and -PENALpoinding". wick against the tenants of Coldinghame, 4th Jan. 1757. In this cafe, the tenants complained that the road they were called out to repair lay at a great diftance, while nearer roads lay unrepaired. The court of feflion decided," that the justices of peace and commiffioners of fupply have a difcretionary power to determine what roads fhall be firft repaired, and to divide the fhire into districts. 4th Jan. 1757, justices, &c. of the county of Berwick against tenants of Coldingham. Fac. Col. 5 Geo. I, c. 30, § 3. In one cafe, the juftices of peace were fanctioned in taking less than the ftatutory penalty. The juftices of peace had made an order that the fix days labour should, in the first place, be applied in the repairing of one highway, and allowed a composition for those who lived at a diftance, below the rate of the legal compofition. Some having refufed to pay, as not being bound to perform 5 Geo. I, c. 30, § 4. The direction of the act 1669 was, "providing that the days they are required to work do not exceed the number of fix days for man and horfe yearly for the firfe three years, and four days yearly thereafter, and that they be only betwixt the beer feed yearly, and haytime or harveft thereafter: with power to the faids juftices or overfeers to poind the readiest goods of the abfents, for 20s. Scots money for the abfence of ilk man daily, and 30s. for the man and horfe, without farther folemnity but apprising the fame upon the ground of the land, and TIES. $5. STATUTE LABOUR TIES. of the penalties. THE act 1670, c. 9, ordains the 6s. yearly for every man, and 12s. for every horfe, which ought to have been employed PENAL in the faid work, to be expended at the fight of the faid fheriff and justices, on workmen to work in place of those Application who live at fuch diflances, in manner forefaid. And 5 Geo. I, c. 30, § 7, enacts, that "the penalties in this act, (other than fuch as fhall be incurred by the tenants, &c.) fhall be levied by fentence of the juftices, and commiffioners of supply, or any five of them; and the expence of the profecution shall be defrayed by the fhires and stewardries, at the fuit of fuch furveyors; and fuch penalties fhall be applied for repairing fuch highways, &c. as the juftices or commiffioners of fupply fhall appoint; and in default of fuch appointment for repairing fuch highwayes, &c. as the lords of jufticiary in their circuits fhall appoint P." therewith to hire others in place of P The juftices of Berwickshire and the meeting, or those acting under their authority, and to empower the committee to draw upon the collector of fupply for the neceffary fums to be paid out of the highway and bridge money in his hands." In confequence of this refolution, the expences of a law-fuit against fome of the inhabit. ants of the county, who had refused to comply with the orders of the commiffioners of fupply, was paid by the collector, and this payment was approved of unanimoufly in an after meeting of the commiflioners. The purfuers who had been averfe to their whole proceedings, executed a fummons of declarator and repetition against the commiffioners, of the fol lowing purport: "That the expending the highway and bridge money in a law-fuit was illegal; and that the defenders conjunctly and seve rally ought to be decerned to refund to the collector the forefaid rod, ona |