Abercromby. of the parties being agreed on the point, I should have had grave PERTHSHIRE. doubts of the competency of this appeal. How the reference was Gardiner v Lord worked out in Strang v Stewart I do not know; but having regard May 21, 1892. to the periods prescribed in the Act for the appointment of a sheriff JAMESON referee (fourteen days) and for his giving his award, I have some difficulty in seeing how, in many cases, an appeal to the Sheriff and the Court of Session can be taken consistently with the period appointed by the Acts for the referee giving his award (see Act of 1889, 52 & 53 Vict. c. 20, sec. 3.) My attention was not drawn to the periods prescribed in the Acts by either of the parties in the appeal, otherwise I would have ordered written pleadings immediately on the appeal being noted. The delay in disposing of this appeal by oral hearing unfortunately has been considerable, owing to my having been unavoidably compelled to put off the sittings I had fixed for the end of March till after the spring vacation. I think it well worth the consideration of the parties what course they will follow in the circumstances which have arisen. In a case decided in the Court of Session this week, a new petition was presented in order to get quit of a similar objection. A. J. An appeal was taken by the defender to the Second Division of the Court of Session, but it was afterwards abandoned, a compromise having been effected. For pursuer-Mr. ROBERT HISLOP (Messrs. YOUNG & HISLOP), For defender-Mr. MALCOLM FINLAYSON (Messrs. GRAHAM & ROBERT ANDREWS, Pursuer; JOHN M'LAREN, Defender. Prescription-Proof by writ or oath.-Circumstances in which prescribed debt held proved by defender's writ. In an action in the Ordinary Court for an account of £23 Os. 3 d., incurred in Ceylon from October, 1875, to December, 1882, the defender pleaded that it was prescribed, and could only be proved by his writ or oath. The plea was sustained, and the pursuer produced as the defender's writ certain letters written by him in reply to applications for payment of the account. In a letter to the pursuer the defender wrote regarding the debt-" It would be base on "my part to dispute it, but I must tell you plainly that if you force me at present I must and will. I am in em"barrassment at present, and am now on an "allowance, which leaves little over after paying necessaries; but I think we will be able to come to terms if you are 'reasonable and willing to take small instalments." In replying to a letter from the pursuer's agents intimating an action failing payment of the debt the defender wrote"Mr. Andrews' account may be due, but as he has not ren No. 12. PERTHSHIRE. Andrews v M'Laren. PERTHSHIRE. Andrews v Feb. 26, 1892. Sheriff GRAHAME. July 29, 1892. dered it for seven years I will plead prescription if action "is taken about it." The Sheriff-Substitute (GRAHAME) held that the writings produced established constitution and resting-owing of the debt, and gave decree for the sum sued for, with costs. The defender appealed, and the Sheriff (JAMESON) adhered. The following were the interlocutors and notes: PERTH, 26th February, 1892.—Having heard parties' procurators and advised the case, finds that in respect of the admission of the defender contained in the writs produced, it is proved that the account sued for was incurred and is resting-owing by the defender to the pursuer; finds, therefore, that the pursuer is entitled to decree therefor in terms of the conclusions of his petition, and decerns in his favour accordingly: Finds the pursuer entitled to expenses, &c. JOHN GRAHAME. Note. The defender's letter in the correspondence between him and the pursuer and his agents must be held to establish the defender's admission that the account sued for was incurred by him and is due to the pursuer. In none of the defender's letters does he take exception to the debt, and in his letter to the pursuer of date 25th March, 1891, he expressly states with reference to the pursuer's present claim that "it would be base on my part to "dispute it, but I must tell you plainly that if you force me at "present I must and will. I am in embarrassment at present." His only plea here is for delay in respect of inability to meet the pursuer's claim; and interpreting generally the defender's statements in his letters from the pursuer and his agents, to which they were replies, they must, I think, be held to amount to such an admission of the debt sued for as to entitle the pursuer to decree therefor. It was urged on behalf of the defender that the plea of prescription which, in his letter of 12th June, 1891, in reply to Messrs. Young & Hislop's letter of the 9th June, 1891, he stated that he would take was inconsistent with the admission of the debt; but it is clear that the defender, in stating he would take the plea of prescription, did not mean to deny the original constitution of the debt or to affirm that it was paid, but that he only meant to state what he thought was a bar to its payment being demanded in respect of that payment not having been asked within the prescriptive period. J. G. PERTH, 29th July, 1892.-The Sheriff having heard parties' Sheriff JAMESON. procurators and considered the cause, adheres to the SheriffSubstitute's interlocutor of 26th February, 1892, and dismisses the appeal; finds the pursuer entitled to additional expenses since the date of said interlocutor, &c., and decerns. ANDREW JAMESON. Note. I have no doubt that the constitution and subsistence of the debt sued for is, taking the debt as a whole, sufficiently proved by the defender's writ. I have felt difficulty on the point PERTHSHIRE. July 29, 1892. whether the defender is entitled to a proof of the objections to For pursuer-Mr. ROBERT HISLOP (Messrs. YOUNG & HISLOP, For defender-Mr. JAMES C. Dow, Perth. SHERIFF COURT OF BANFFSHIRE. ROSINA MALCOLM, Pursuer; JOHN M'GREGOR, Defender. Parent and Child-Aliment for bastard-Amount payable where father lives in different county from mother and child.-Held that aliment payable for an illegitimate child was according to the rate in force in the county where the mother and child lived, and not according to the rate in the county in which the child was born and the father was domiciled. An action was raised in the Banff Small Debt Court by Rosina Malcolm, Heronhill Terrace, Hawick, against John M'Gregor, Braco Street, Fife Keith, for £1 12s. 6d., being quarter's aliment at the rate of £6 10s. a year due by the defender to the pursuer on account of their illegitimate child. The defender admitted the paternity, and offered to pay aliment at the rate of £5 sterling, being the rate of aliment paid in Elginshire, where the child was born, as also the rate payable in Banffshire, in which county the child was begotten-that being the county also of the defender's domicile. The pursuer declined to accept the defender's offer, and maintained that she was entitled to aliment at the rate of £6 10s. per annum, being the rate admittedly paid in Hawick, where she and the child were living. After hearing parties' procurators, the SheriffSubstitute (GRANT) gave effect to the pursuer's contention, and held that the Hawick rate and not the Banffshire or Elginshire rate was what was due to the pursuer. The grounds of the judgment are given in the following note: No. 13. Malcolm v Dec. 23, 1892. The pursuer in this case sues the defender for aliment for their illegitimate child. Paternity was admitted at the bar; and the Sheriff GRANT. parents concurred in stating that the child was begotten in Keith, born in Elgin, and is now living with the mother, who is working in Hawick. The only question is whether aliment should be allowed at the BANFFSHIRE Malcolm v Dec. 23, 189 No. 14. LANARKSHIRE. Smith v Chisholm. admitted Hawick rate of £6 10s. per annum, or at the Banffshire annual rate of £5. The defender is domiciled in Banffshire and Isued in this Court. The first principle applicable to this class of case is that the parties are jointly liable for the aliment of their illegitimate child; the mother, having the custody, being entitled to sue the father for half the amount. Strictly following this principle, the actual amount necessary for aliment of illegitimate children varies in different sheriffdoms according to the cost of living, and every Sheriff Court has now a fixed rate founded on the experience of those best in a position to know. Hence the difference of the father's contribution in Banffshire and in Hawick. For the father it was contended that he is not liable for more than the local rate of his own domicile, especially when the child was begotten and born in it; and I concede the fact, for the purpose of argument, that this child was born in the jurisdiction because the rates in the neighbouring county of Elgin, where it was actually born, are identical with ours. I think this contention unsound, because the needs of the child are the first object to be considered before the conflicting interests of the parents; and this is best illustrated by the fact that the father, if the mother were dead or unable to contribute, would have to take the whole burden of aliment on himself. The needs of the child must be considered in the light of its present residence. It is in the custody of the mother, and she is at Hawick. She is entitled to live where she likes, or, as in her case is most probable, where she can best earn her living. I do not think that the fear expressed that women will emigrate to expensive localities to secure larger rates of aliment for illegitimate children is one that can be seriously entertained. Half the extra expense falls on the woman herself, and that, as far as I can see, is a practical safeguard. The local Court is the proper judge of the local rate; therefore I allow the rate current in Hawick to the pursuer in the case. For pursuer-Mr. ALEX. WATT, Banff. SHERIFF COURT OF LANARKSHIRE. Mrs. AGNES PATON or SMITH, Pursuer; ROBERT CHISHOLM, Defender. Retention-Hotel-keeper's lien.-Circumstances in which held that a person who assisted a guest in removing her property from an hotel was not liable for the account due by the guest for board and lodging. Debts Recovery Act.-Opinion that a hotel bill claimed against a party who removed the guest's goods could not be sued for under the Debts Recovery Act. The pursuer, who was proprietrix of an hotel, raised an Smith v Chisholm. action in the Debts Recovery Court at Glasgow against the LANARKSHIRE. defender for payment of an account due by Miss Vere M'Kie, who had been a guest in the hotel, alleging "for "which amount the defender is liable in respect that on '9th and 11th March, 1892, defender unwarrantably and "illegally removed from said hotel the goods and effects "belonging to the said Miss Vere M'Kie, and so defeated "pursuer's lien for payment of said account." The SheriffSubstitute (BIRNIE), after proof, gave decree for a small sum, but this judgment was reversed by the Sheriff (BERRY) on appeal. The following were the interlocutors in the case: pur Sheriff BIRNIE. GLASGOW, 25th May, 1892.-Having heard parties' procurators May 25, 1892. and made avizandum, finds that a Miss M'Kie resided in the suer's hotel for about twenty weeks preceding 11th March last, and that a sum exceeding £6 10s. remains due to the pursuer therefor; finds that on 9th and 11th March the defender obtained from Miss M'Kie possession of a savings bank book and order for payment and a receipt for luggage, and certain other small articles, and removed the same or caused the same to be removed from the pursuer's hotel; finds that the same were subject to the pursuer's lien, and that the defender removed them or caused them to be removed against the pursuer's remonstrances: Finds that he is liable in damages; assesses the same at £6 10s.; finds him liable in said sum, with £2 2s. of costs, and decerns. J. B. L. BIRNIE. Note. I think it proved that Miss M'Kie was in debt to the pursuer in a sum exceeding that found due, and keeping in view that the pursuer was a lady living alone with one female servant and a girl, I think her remonstrances were sufficient to render the defender liable; and further keeping in view that Miss M'Kie was of weak intellect, that he is liable both for the articles he personally carried out of the house and for those carried by Miss M'Kie when he took her away. I think also that this breach of the pursuer's lien renders him personally liable, whether he has a claim against Mr. Crossby, Miss M'Kie's uncle, or not. The articles carried away consisted of a savings bank deposit book, on which £6 had been received by the defender or Mrs. Crossby; a railway receipt for luggage, the value of which is unproved; and one or two other articles of small value. The real difficulty is as to whether the savings bank book and the railway receipt were within the pursuer's lien, and I have come to think they were. A hotel-keeper's lien is very wide. (See Roscoe on Evidence, 7th ed. 977; Story on Bailments, 9th ed. 476a; Innkeepers' Act, 1878, 41 Vict. c. 38.) Roscoe says it seems that the innkeeper has a lien on whatever goods he would be liable to answer for in case of loss, and Story, that the innkeeper some |