(Anderson v Anderson's Trustees, 19 R. 684, 29 S.L.R. ABERDEENSHIRE, 598, distinguished.) This was an action of interdict at the instance of Elizabeth Robertson, with consent of her husband, Robert Robertson, ship chandler, Aberdeen, against the trustees under a trust-deed for creditors granted by the husband, craving that the defenders be interdicted from selling sundry articles of furniture enumerated in the prayer of the petition, alleged to be the property of the female pursuer. The facts are fully set forth in the interlocutors and note of the Sheriff-Substitute (BROWN) and the Sheriff (GUTHRIE SMITH), which were as follows: ABERDEEN, 29th June, 1892.-Having considered the cause, finds in fact (1) that the pursuer was married to her husband subsequent to the passing of the Married Women's Property (Scotland) Act, 1881; (2) that it is alleged by the pursuers, but not admitted by the defenders, that the articles in question were her property prior to marriage; (3) that it is admitted by the pursuers that upon her marriage the said articles were removed to the house then occcupied by her husband, and since then have been twice removed to houses occupied by him; (4) that the pursuer's husband having fallen into difficulties, he, on 3rd May, 1892, granted a trust-deed for behoof of his creditors in favour of the defenders, and that the articles in question then formed part of the furniture of the pursuer's husband's house; finds in law, on the assumption that said articles were the separate property of the pursuer, that she, having lent or entrusted them to her husband within the meaning of sub-section 4 of section 1 of said statute, they form assets of the husband's estate in bankruptcy; therefore sustains the defences, recalls the interim interdict, assoilzies the defenders from the conclusions of the action; finds them entitled to expenses, &c. W. A. BROWN. Note. I feel myself unable to distinguish the present case from the judgment of the Second Division of the Court in Anderson v Leith, March 14, 1892, 29 S.L.R. 598, and had that case been before me when I had occasion to consider the crave for interim interdict, I could scarcely have granted it without hearing the parties. The pursuers strongly relied on the fact that the articles in question formed the wife's separate estate prior to marriage, whereas in the case referred to it was acquired after the marriage, but it does not seem to me that that difference has any other effect than to determine the period when the custody of the husband arises, and if anything it is a stronger case that that has existed since the marriage. It was further contended that a distinction falls to be drawn between money and the other estate of the wife, such as the articles in question, but that point was fully before the Court in Leith's case, which indeed is a judgment Robertson, &c. v June 29, 1892. Sheriff BROWN. Robertson's Sheriff BROWN. ABERDEENSHIRE per expressum to the effect that furniture belonging to the wife, if Robertson, &c. v entrusted to her husband, forms an asset of his estate in bankruptcy. Trustees. Finally, it was urged that the judgment above quoted should not June 29, 1892. be followed because there was here no public adjudication of bankruptcy, but there is no restriction in the application of the Act to any particular form of bankruptcy, and the pursuer herself alleges that her husband has convened his creditors. The only doubt I have felt is whether, the parties not being in full agreement as to the facts, a proof should not be allowed, lest it should prove that there were special circumstances which took the particular case out of the statute, but the judgment in the case of Leith is so absolute in its scope that in the end I have come to think no result would follow from this course but the incurring of much needless expense, the pursuer not condescending on anything of an exceptional nature. W. A. B. July 9, 1892. Sheriff GUTHRIE SMITH. July 27, 1892. Sheriff GUTHRIE SMITH. No. 17. ARGYLLSHIRE. Mackay v Crawford. ABERDEEN, 9th July, 1892.-The Sheriff having heard parties' procurators on the pursuer's appeal against the interlocutor of 29th June last and considered the record and whole process, recalls the interlocutor appealed against, allows both parties a proof of their averments on the closed record and the pursuer a conjunct probation, and remits the case to the Sheriff-Substitute to take the proof. J. GUTHRIE SMITH. Thereafter the defenders put in the following minute:"The defenders hereby judicially admit that the articles 'enumerated in the prayer of the petition were the property of the female pursuer prior to her marriage with the " said Robert Robertson," whereupon the parties renounced probation, and the following interlocutor was pronounced: ABERDEEN, 27th July, 1892.-The Sheriff having resumed consideration of the cause with the minute lodged for the defenders, discharges the order for proof; finds that the furniture being the property of the female defender prior to her marriage is not attachable by her husband's creditors or for his debts; therefore repels the defences; declares the interdict already granted perpetual; finds the defenders liable in expenses, &c. J. GUTHRIE SMITH. An appeal was intimated to the Second Division of the For pursuers-Mr. R. M. WILLIAMSON, Aberdeen. SHERIFF COURT OF ARGYLLSHIRE. DONALD MACKAY, Pursuer; ALEXANDER CRAWFORD, Master and Defender. Servant-Disobedience— Dismissal.—Circumstances in which held that a master was not justified in dismissing a servant for an act of disobedience without inquiring into the circumstances, where the servant advanced as a reason for his disobedience personal risk ARGYLLSHIRE. Observed (p. Sheriff) That a master is not entitled to dismiss This was a case in the Debts Recovery Court at Campbeltown. The facts appear sufficiently from the judgments of the Sheriff-Substitute (BELL) and Sheriff (M'KECHNIE): Mackay n Crawford. Sheriff BELL. CAMPBELTOWN, 28th September, 1892.-The Sheriff-Substitute Sept. 28, 1892. having considered the cause, finds in fact (1) that on the 10th of August of this year the pursuer was in the defender's service as a farm servant, on a six months' engagement from Whitsunday to Martinmas, at £15 10s. sterling of wages for the half-year; (2) that on the said 10th of August the pursuer was ordered by the defender to go with a scythe, along with a fellow-servant, to clean out the channel of the Machrihanish Water at a point described as "below the pit," not on the farm of the defender; (3) that the cleaning of said channel was a usual part of the work of the servants on the farm; (4) that the pursuer refused to obey that order, alleging that the water was then too deep for him to work in it without personal danger; (5) that the pursuer was thereupon dismissed by the defender with the tender of his wages up to date, which he refused; (7) that the water was on the day in question too deep for men to work in it without personal danger: Finds in law (1) that the pursuer was not bound to obey the said order, and was therefore wrongously dismissed by the defender; (2) that the pursuer is entitled to payment of his wages for the whole term of his engagement, along with board wages at the rate of six shillings a week from the date of his dismissal till the term of Martinmas following: Therefore ordains the defender to pay to the pursuer the sum of £18 16s. sterling in name of wages and board wages, as stated in the account annexed to the summons herein: Finds the defender liable in expenses, &c. RUSSELL BELL. Note. The pursuer here sues for a half-year's wages and board wages as farm servant to the defender, whose service he entered at Whitsunday of this year, and from which he was dismissed on the 10th of August following for disobedience. The pursuer alleges that his dismissal was illegal on two grounds; secondly, that to have obeyed the order would, in the circumstances, have been personally dangerous to him. The defender's farm is traversed by a stream called the Machrihanish Water, the channel of which is liable to get choked up with weeds and grass, necessitating its being cleaned out every autumn to prevent the fields being flooded after much rain, and it appears from the evidence for both parties that it was the custom on the farm for the menservants to do the cleaning, going into the water to do so, as part Mackay v Crawford. Sept. 28, 1892. ARGYLLSHIRE. of their ordinary work, and that it had been done by the pursuer himself under a previous engagement. It also appears that when the annual time came for cleaning out the burn, the point for Sheriff BELL. beginning work was at a part of the water not on the defender's farm, but some distance lower down on a neighbouring farm. On the morning of the 10th of August (a Wednesday) after breakfast, the pursuer was ordered, along with his fellow-servant, Joseph Colquhoun, to go down and clean the burn with a scythe at this point. Both men refused to go down and were at once dismissed by the defender. It only remains to consider the other ground on which the pursuer bases the justification of his disobedience, namely, that to have obeyed it would have been to endanger his life. He and Colquhoun had observed the state of the water at the bridge near the farm-house early in the morning. There had been rain on the Sunday and Monday previous and the burn was big, and from its condition there they judged what it would be at the place further down where they were ordered to work. They did not go down to that place to look at it before refusing to work, nor did the defender before dismissing them. Now, the pursuer and Colquhoun, along with the witness Kennedy, the same evening measured the depth of the water at the part where they would have had to work with an iron rod and a yard measure, and all three speak to having found depths of from 3 to 5 feet over, (Kennedy says), a distance of about 100 yards. There is nothing to discredit this evidence the defender took no soundings-and I think it must be accepted. The stature of the pursuer or Colquhoun is not in evidence, but from my own observation in the witness box, neither of them were tall men. Now, it can hardly be disputed that a man of medium height going, in his clothes, into a stream of even moderate velocity, and swinging a scythe to cut grass under water on an uneven bottom, varying from 3 to 5 feet in depth, is in a position of considerable personal risk, where a false step might well prove serious. As the burn was in spate the water would have been muddy, and it would be impossible, or at least difficult, to see where the deeper parts were. A man under 6 feet stumbling into a hole 5 feet deep would hardly have his head above water, even when standing erect, and would have had at the same time to withstand the current encumbered by a scythe. In such circumstances there is, I think, at least a possibility that one or both of the men might have been drowned. In refusing to listen to the men's remonstrances, and neglecting to examine the water for himself at the place where they were to work, but at once turning them off, the defender acted, I think, in a hasty and arbitrary No doubt he did not think the water was as high as the men afterwards found it to be, and I have no doubt either that he would not have given the order had he known the actual depth of the water, but he took on himself the risk of dismissing them manner. Mackay v Crawford. Sept. 28, 1892. without finding out, and this, it seems to me, is just the crucial ARGYLLSHIRE. point of the case, and where the defender's fault comes in. As far as the plea of personal danger goes, the pursuer's action must be regarded, not as a refusal to do the work absolutely or at any Sheriff BELL. time, but merely as a refusal in the circumstances, that is, when the water was dangerously deep. The farm was not then under water or in immediate danger of becoming so, for the water was then going down; it was not a case of emergency. I do not think it can be argued for the defender that the men were bound to have gone into the water and made practical proof of the depth, for they would then have run the risk of not getting out, or to have made their measurements, before refusing to go in. They judged its condition roughly from the look of it higher up, and the subsequent measurements made by them proved that their diagnosis was correct. If the view of the circumstances as disclosed by the evidence, which I have endeavoured to set forth, is correct, the element of personal danger to the servant was involved in obedience to the orders of the master, and it is well settled law that a servant is not bound to obey an order the execution of which involves him in any risk which is not within the scope of the contract. I think the risk of being drowned in a stream in spate in the act of doing work, though otherwise within the limits of his service, is clearly not a risk within the contemplation of a farm servant's contract. (Fraser, M. & S., 79.) R. B. The Sheriff, in adhering to the judgment of the SheriffSubstitute, appended the following note to his interlocutor: Sheriff M'KECHNIE. I allowed the appellant to lodge in writing an argument Dec. 13, 1892. against the judgment of the Sheriff-Substitute, and an able argument has been submitted in support of the appellant's contentions. The first contention is that the appellant did not give the pursuer an order to enter the water of the burn at any particular point. I think the evidence is to the effect that no particular point was mentioned in the order. It is, however, proved that there was a point at which it was usual to enter in order to clean the burn, and I think it is also proved that it would have been unsafe to commence operations at any other place. There is evidence to the effect that a particular point was mentioned, although I do not regard it as sufficient. The condition of the burn on the day in question was well known to the appellant, and his attention was called to it by the respondent and his fellow-servant. He declined to specialise his order, and he dismissed the respondent on the spot. This dismissal I regard as quite unjustifiable. The law appears to be this: if a servant has reasonable or probable grounds for fearing that obedience to an order by his master will expose him to risks not fairly within the meaning of the contract of service, he may disobey the order. I think the appellant contends for too much |