$3. FORESTAL ING. " expressed what was foreftalling and regrating, therefore," " move any person coming to the fair, market, or town, to "bring any of the things above mentioned to the market, fair, or town, fhall be esteemed and judged a forestaller: ❝ and whoever gets in his poffeffion, in any fair or market, any corn, victual, flesh, fish, or other vivers, that shall be brought to be fold, and fells the fame again, in any fair or market, holden in the fame place, or any other fair or "market within four miles thereof; or who gets in his "hand by buying, contract, or promifes, the growing corn "on the field, fhall be reputed a regrater. And because "there has fo little effect followed in the execution of the “faid act, by the magiftrates within boroughs, to whom the execution thereof was committed, therefore it fhall be lawful, in time coming, to our fovereign lord's thefaurer " or advocate, to call and pursue all perfons fufpect and de"lated of foreftalling and regrating, in cafe they fhall happen to prevene, by apprehending, intending, and executing first, as well as the faid magiftrates in boroughs: and "it shall not be leafum for the magistrates within borough "to repledge any perfons challenged or pursued by the the"faurer or advocate, before his highness's justice, or his deputes, at juftice airs, or particular diets. And albeit there "be no fpecial dittay, but that the foreftaller and regrater "be only accused of common foreftalling or regrating, fo k $3. FORESTAL LING AND REGRAT ING. § 4. NUISANCES 66 repute and holden; yet the libel, in that generality, shall "ftand relevant, and the perfon accused to be put to the "knowledge of an affize: and if they come in will, or be "convicted by an affize, for common foreftalling and re"grating of markets, they shall incur, for the first fault, the pain and unlaw of forty pundes, and fhall find furety to "abstain in time coming, under the pain of a hundred "merks and if he fall again in the fecond fault, the prin"cipal, and his furety, to incur and pay the faid fum of a "hundred merks; and for the third fault, the offender be❝ing convict, or come in will, to tine and forfeit all his "moveable goods, to be inbrought to our Sovereign lord's "ufe as efcheat: and the juftice courts or aires, for the ef"fect forefaid, to be holden every year twice." SIR GEORGE MACKENZIE fays, foreftallers are either, ift, those who privately, or by entering into focieties, buy up any goods, upon defign, that, by making themselves masters of the commodity, they may exact such rates for them as they think fit; as, for example, a perfon offering to buy all the falmon in Scotland, and dealing with all perfons who have any to fell; or purchafing up, in this manner, butter, cheese, eggs, &c. 2dly, Those who buy any commodities coming to market, before they are brought to the public stall, or place, where they ought to be fold. 3dly, Those who advise sellers to raise their prices, or diffuade them from coming to a public market. But it is happily unnecessary to follow him in the full difcuffion he gives this fubject. The court of session lately delivered an unanimous opinion, that the statutory offence confifted entirely in buying up commodities actually on their way to market a. IV. ON the fame account, magiftrates are authorized, on particular occafions, to reftrict individuals in the ufe of their property; which "restraints of law are not defigned to hurt property, but rather to fecure and strengthen it, by inhi " § 4. NUISANCES แ biting our licentiousness in the exercise of it," &c. "The Restraints "law fuffers no person to use his property wantonly to his on the right of property. neighbour's prejudice; intereft enim republica ne quis re fua "male utatur. But where the proprietor's act is of itself lawful, though it should be in its confequences detrimen"tal to his neighbour, utitur jure fao. Hence he may law"fully drain his swampy or marshy grounds, though the "water thrown off from them by that improvement should happen to hurt the inferior tenement; but he must not "make a greater collection of water than is neceffary for "that purpose; feeing fuch use would be merely in emula- Must not “tionem vicini2;” or build a fence, by the fide of a river, to act in emuprevent damage to his ground by the overflow of the water, cini. though thereby a damage should happen to his neighbour, by throwing the whole overflow, in time of flood, upon the oppofite fide. " Is like manner, a proprietor was found intitled to build a draw kiln for burning lime, upon the very extremity of his grounds, although it made his neighbour's dwelling very unpleafant. lationem vi WHAT ufe may be legally made of a running ftream, is Running principle of this decifion must have water. $4. NUISANCES Nuisances within burgh. sometimes a matter of difficulty. We had before occafion to notice the act of parliament against steeping lint in running water, and fir George Mackenzie's idea, that no fuch prohibition would be competent at common law; but the court of feffion have fince pronounced two decifions rather of an oppofite tendency; confidering that the "primary use of "water being in drink, no proprietor was intitled to employ "the water paffing through his ground in any purposes "which could defeat that primary use to others who had "before enjoyed it "." PROPERTY within borough is under still greater reftriction; as the magiftrates may there prevent ufes of property which could not be interfered with in the country. Thus a fencing school; a blacksmith's forge, in an upper ftorey, though vaulted; a wright's' fhop, and timber-yard d; the flaughtering of cattle in a back area; a printing-house in the floor of a tenement f; have been all found by the court of feffion to be nuisances within borough. "it is enough if it renders the en- a Nov. 1791, Miller against Stein, b February 24, 1756, Fleming againft Ure. Falconer. C May, 1794, Palmer against Macmillan. In this cafe the court found the defender intitled to expofe his meat for fale in the front area (about nine feet wide in front, divided from Nicholson's street, Edinburgh, by a parapet wall), provided he erected a shed over the place on which it was hung, and paved the area with ftones. f March 2, 1802, Robertson against Pillans. But the learned reporter remarks, that "fome of the judges 66 were moved by certain fpecialties "in the cafe." Still more any encroachment on the public street. Sir W. Forbes against Ronaldson, March 3, 1783. Sometimes even though fup June 20, 1756, Kinloch against ported by 40 years poffeffion; July & Robertson. Fac. Coll. 1780. Dict. vol, iv. Pub. pol. Is like manner the buildings are regulated. A fpecial act, indeed, was paffed, regulating the mode of building in the town of Edinburgh 2. But, at common law, magiftrates can prevent any thing taking place in the principal streets that is offenfive. Thus, a building in a principal ftreet, with piazzas below for the merchants to walk, and for commodities to be expofed to fale, was ordered to be removed, as an encroachment on the public street ". By the English law, no action lies for removing a public or common nuisance, but an indictment only. Our law does not adopt this principle; but here, as well as in the whole doctrine of servitudes, is guided by the very different principles of the civil law. Thus the intrufion on the high ftreet of Montrose by piazzas, and the erection of shops in the piazzas, High Street, Edinburgh, both above mentioned, were removed at the instance of private citizens. 2 1698, c. 8. Feb. 27, 1762, Magistrates of Montrose against Scott. |