firm, having been examined on oath, emitted the following deposition:

. . . .

I am a partner of Messrs. Dewar and Angus, the defenders. Being shewn copy of a bill for £1976: 17:8, being No. 12 of process, and dated 18th October 1851, depones, The firm with which I am connected had transactions in business with the Leith Sugar Refining Company prior to the date of the bill now shewn me. These transactions, as far as I remember, were all settled before the date of the bill, but whether by cash or bills I cannot call to mind. That the bill shewn me had no reference to these previous transactions, and it had no reference to any transactions that took place at the date of the bill between Dewar and Angus and the Leith Sugar Refining Company. No advance in cash was made at the date of the bill by Dewar and Angus to the Leith Sugar Refining Company. The deponent's attention being called to the endorsement of the bill by Dewar and Angus, and being interrogated, If it was discounted by that firm? depones, It was discounted by them with the Western Bank. The proceeds of the bill when discounted were not handed by Dewar and Angus to the Leith Sugar Refining Company so far as I am aware.. John Cabbell and Company received, on 20th October 1851, the sum of £1950: 0: 5, being the proceeds of the promissory-note of the Leith Sugar Refining Company, which statement I am enabled to make from being shewn a receipt or acknowledgment bearing the above date, and acknowledging payment of the said sum, and at which I recognize the signature of " John Cabbell and Co.," as being in my handwriting. I was a partner of the firm of John Cabbell and Company at the date of the said letter, and also of the firm of Dewar and Angus. Interrogated, How the balance stood between the firms of Dewar and Angus and John Cabbell and Company at the date of the sequestration of the latter house in December 1851 ? depones, Dewar and Angus owed a considerable balance to John Cabbell and Company. As at the date of the sequestration of Cabbell and Company I considered the Leith Sugar Company to be indebted to Cabbell and Company, but I soon discovered that the balance was the other way. Interrogated, Did Dewar and Angus give any value to the Leith Sugar Refining Company for the promissory-note in question? depones, Negative. I know that Mr. Angus died last year, and there is no other partner but the deponent in the firm of Dewar and Angus. Interrogated for the defenders by the Solicitor-General.-I was a partner of the firm of John Cabbell and Company, and at the date of the bill I was in the belief that the Leith Sugar Refining Company were indebted to John Cabbell and Company. I did not consider the promissory-note in question to be an accommodation bill in the proper sense, as my impression was that both houses were indebted to John Cabbell and Company. That house applied to Dewar and Angus for a payment to account of their debt, which they stated was not convenient for them at the time, and might not be so for some weeks; to which Cabbell and Company replied, that Dewar and Angus might draw upon the Leith Company, and they would guarantee the draft, in consequence of which the promissory-note in question was drawn. Before that time Cabbell and Company had many transactions with the Leith Sugar Refining Company. The reason why Cabbell and Company guaranteed the promissory-note was, that the same not being a direct transaction between Dewar and Angus and the Leith Company, they declined to interfere without a guarantee. The Leith Company not having any direct transaction with Dewar and Angus, must have known that Cabbell and Company were to be the recipients of the proceeds of the draft. I remember of having requested, either verbally or by letter, the Leith Sugar Company to grant the note in question. At the date of the sequestration of Cabbell and Company in December 1851, they had received and held in their hands the proceeds of the promissory-note in question. The note has not been paid, and if paid, Dewar and Angus hold the guarantee of Cabbell and Company. I either wrote, as I said before, or spoke to the manager of the Leith Company, requesting him to grant the said note to Dewar and Angus on account of Cabbell and Company. If that had not been the case, it would have been an accommodation bill to Dewar and Angus, which it was not. My reason for not drawing on the Leith Company in the name of Cabbell and Company was, that we had too much of their paper in the circle already for the banks to take. Re-interrogated for the

pursuer. At the date of the promissory-note in question, I do not know that there was any stated account shewing the amount of the balance as between Cabbell and Company and the Leith Sugar Company. The Leith Company was awar that I was a partner of both firms of Cabbell and Company and Dewar and Angus. Interrogated, Whether the proceeds of the note were given or debited by Dewar and Angus to Cab bell and Company in extinction of the debt then due by Dewar and Angus to Cabbell and Company? Depones, The sum ei £1950:0:5 was paid by Dewar and Angus to John Cabtell and Company on the 20th October, as per receipt given in part payment of their debt, being No. 14 of process, which suz was the proceeds of the note in question. I remember, afte the sequestration of Cabbell and Company, of Mr. Schults being in Glasgow, and of conversing both with him and M Angus respecting the said note, and it was agreed by us all that the note should be taken up by Dewar and Angus." The Lord Ordinary pronounced the following inter locutor:

"Finds the oath negative of the averment that the promis sory-note was granted without value for the accommodation of the defenders: Therefore assoi!zies the defenders from the carclusions of the action, and decerns: Finds the pursuer liable is

expenses.

"Note. The averment of the pursuer on record, article 2, įo, 'that the promissory-note was granted without value, and sody for the accommodation of the defenders, who were the proper debtors therein, and bound to relieve the Leith Sugar Refining Company of the same.' After some procedure the pursuer referred the whole cause to the oath of the defenders. The only deposition is that of Dewar, his partner Angus having died s time ago.

"The deposition discloses the following facts. Dewar, sides being partner of Angus, was partner also of the house »í Cabbell and Company. In October 1851, when the note made, there were no transactions between Dewar and At and the Leith Sugar Refining Company. But there transactions between Cabbell and Company and the Leith Refining Company, and also between Cabbell and Compar Dewar and Angus. As between the two former the ba was supposed to be in favour of Cabbell and Company, thou this was an error, as afterwards ascertained. As between th two latter, there was a large balance due to Cabbell s Company by Dewar and Angus. Cabbell and Company ap to Dewar and Angus for a payment to account of their deit which it was not convenient for Dewar and Angus to make which Cabbell and Company replied that they might draw the Leith Company, and Cabbell and Company would guarante the note. The business appears to have been managed by Dewar, the partner in both companies, who swears that be either spoke or wrote to the manager of the Leith Compsty requesting him to grant the note to Dewar and Angus, on a count of Cabbell and Company; and he adds-' My reason ♪* not drawing on the Leith Company in the name of Cabbell a 7 Company was, that we had too much of their paper in the cir for the banks to take.'

"The promissory-note was endorsed by Dewar and Angus and having been discounted with the Western Bank, the pr ceeds were handed over to Cabbell and Company, who, of same date, granted a letter (which is made part of the eat Dewar and Angus, acknowledging having received the proceeds and guaranteeing due payment of the note.

"In December 1851, during the currency of the note, Cable and Company and the Leith Sugar Refining Company both came bankrupt, and Dewar then ceased to be a partner Dewar and Angus, which house remained solvent. Bena interest of the trustee for the creditors of the Leith Comp to make out that the note was for the accommodation of Dewa and Angus, and to resist the ranking for it (in name of in Western Bank) on the sequestrated estate.

"The hesitation the Lord Ordinary has felt in relieving Dewr and Angus, arises from the difficulty of disregarding the fa that they were indebted to Cabbell and Company, and that note originated in their not finding it convenient to mak payment to account. But the letter of guarantee is intelig * only on the explanation, that Dewar and Angus were th parties to the note, lending their name, and that Cabbell Company were the parties accommodated, who were to take 3 the note, if not duly paid by the acceptors. Mr. Dewar,

deposition, swears that Dewar and Angus declined to interfere without a guarantee.

"Unless the fact of no value having passed from Dewar and Angus to the Leith Company, when the note was made, combined with the other fact of indebtedness by Dewar and Angus to Cabbell and Company, should be held sufficient to draw after them the legal conclusions of accommodation to Dewar and Angus, the other parts of the deposition are wholly negative. Mr. Dewar states explicitly that it was not an accommo dation to Dewar and Angus, and further says, that the Leith Company must have known that Cabbell and Company were to be the recipients of the proceeds. These may be open to the observation of being his opinions merely; but they at least do not assist the pursuer, who has perilled the case on his oath." The pursuer reclaimed.

Horn, for reclaimer.-This case turns on the import of Dewar's deposition. Now, Dewar admits that Schultze and Company got no value for their acceptance, and that Dewar and Angus got the proceeds. He farther adds in explanation, that these proceeds were at once handed to Cabbell and Company, another firm of which Dewar was also a partner. No doubt, he says that it was requested for the accommodation of Cabbell and Company, and that it was so accepted. But the general result is, that Dewar and Angus, being debtors of Cabbell and Company, paid their debt with the proceeds of this bill. The bill was therefore granted for the accommodation of Dewar and Angus.

Solicitor-General, for the respondents.-The deposition must be taken as it is, and it distinctly avers that the accommodation was not to Dewar and Angus but to Cabbell and Company. The pursuers must make out that the bill was granted for the accommodation of Dewar and Angus. He has so restricted his statement on the record. It is not enough to make out that we gave no money for the bill, in order to shew that it was a bill granted for our accommodation.-Byles on Bills, 323. Suppose Cabbell and Company had asked Schultze and Company to accept a bill to Dewar and Angus, and suppose Dewar and Angus take the bill so accepted, that is value to Schultze and Company.-Allan v. Gallie, June 5, 1829. That is the case, whatever the result of any accounting may be between Cabbell and Company and Dewar and Angus.-Berry v. Murdoch, Feb. 15, 1822; 1 S. D. 326.

Penney, for reclaimer, was not called on to reply.

Lord President.-I was at first a good deal moved by the ingenious view which has been taken by the Lord Ordinary. But having now heard the case on both sides, I cannot hold this oath to be negative of the reference. On the contrary, I am clearly of opinion that the oath is affirmative of the reference. In the first place, the oath is explicit on this point, that no value was given. The next point to consider is-Whether this is made out to have been an accommodation bill? A good deal of difficulty arises on this point, owing to the position of Dewar. For Dewar was not merely a partner of Dewar and Angus, but also of Cabbell and Company; and in his deposition he does not speak entirely as a partner of Dewar and Angus, but also partly as a partner of Cabbell and Company. He says:-"I did not consider the promissorynote in question as an accommodation bill in the proper ense of the term, as my impression was that both houses were indebted to Cabbell and Company. That house applied o Dewar and Angus for a payment to account of their debt, hich they stated was not convenient for them at the time, nd might not be so for some weeks" Then, in that position f matters, Cabbell and Company, the creditors, suggest somehing to make it convenient for the debtors to pay. The bject of the suggestion is to pay part of the debt. That is a ansaction for the accommodation of Dewar and Angus:To which Cabbell and Company replied, that Dewar and

Angus might draw upon the Leith Company, and they would guarantee the draft, in consequence of which the promissorynote in question was drawn." In no other sense is this an accommodation to Cabbell and Company, except as impressing funds into the hands of their debtor. But this is truly an accommodation to Dewar and Angus.

Lord Ivory.-I am of the same opinion. It is clear from this deposition, that Schultze and Company got nothing for this bill; that Dewar and Angus got the proceeds, and applied them in extinction of their own debt to Cabbell and Company. That is complete evidence of accommodation. Now, what more is there in the case? At whose request was the note granted? At the request of Dewar and Angus. It was they who applied to Schultze and Company to grant this note. No doubt the deposition says that this request was made on account of Cabbell and Company. But Dewar and Angus make the request; and if Cabbell and Company received the money, it was through Dewar and Angus. Why did Dewar and Angus interfere, except for the interest they had to get their debt to Cabbell and Company paid? They got a guarantee from Cabbell and Company. Why did they get this guarantee, if it was not in view of their liability as parties accommodated by this bill?

Lord Robertson. I am of the same opinion. The oath is clearly affirmative of the reference. The substance of the transaction is, that Schultze and Company got no value for this bill; that Dewar and Angus got the proceeds, and paid their debt with it. That is surely accommodation to Dewar and Angus.

Lord Rutherfurd.-I have the pleasure of entirely concurring with your Lordships. I am clearly of opinion that the Lord Ordinary's interlocutor cannot be sustained. We are here in an action of relief. The trustee has been obliged to rank this bill on the claim of the Western Bank, by whom it was discounted. It is said that this bill was made up for the accommodation of Dewar and Angus. Perhaps it might have been said that the bill was granted for the accommodation of both parties. That would have removed But any objection arising upon the state of the record. it is clear, on this oath, that the party who got the benefit of this bill were Dewar and Angus, It is clear that Schultze and Company got no value. It was discounted by Dewar and Angus. It was put into their hands to discount. The proceeds were by them handed to Cabbell and Company, who were pressing them for payment. No doubt this may be for the accommodation of both parties. But the parties who substantially receive accommodation were the debtors who were pursued for payment. Some little difficulty arises from the double character of Dewar. But it is clear that Dewar and Angus alone were accommodated, and that Schultze and Company or their trustee must be relieved. The letter of guarantee supports the same conclusion. I have no hesitation in concurring with your Lordships.

Recal, and hold the oath affirmative of the reference.

Lord Ordinary, Handyside.-Act. Penney, Horn; John Rutherfurd, W.S. Agent.-Alt. Dean of Faculty (Inglis), Solicitor-General (Craufurd); Murray and Beith, W.S. Agents.L. Clerk. (F.H.)

23d June 1854. SECOND DIVISION.

JOHN HAY, Pursuer, v. JOHN THOMSON and CHARLES MANSON, Defenders.

Poor-Settlement-Held that the parish of the husband's and not of the wife's birth, is liable for the relief of the pauper widow. Expenses-Pauper-The City of Edinburgh Parish having raised an action to determine which of two other parishes was liable in repayment of relief advanced to a pauper, was found entitled to expenses in the Outer House by the Lord Ordinary from the parish found ultimately liable. The other parish having reclaimed, and no question being raised but as to the liability of the defenders, inter se-Held, that the pursuer was not entitled to any additional expenses subsequent to the decision in the Outer House. The question at issue here was-Whether the parish

of birth of a deceased husband or of the widow's own birth, is liable for her maintenance as a pauper? The action was raised by John Hay, as representing the City Parish of Edinburgh, for recovery of sums expended in relieving a pauper, Janet Garrie or Peebles.

Janet Garrie was born in Thurso, and her husband in St. Cuthberts. Peebles died in February 1848, without having any settlement by residence, and the City of Edinburgh Parochial Board having maintained his widow ever since, now claimed repayment either from the parish of St. Cuthberts or of Thurso.

The Lord Ordinary pronounced the following interlocutor:

Finds, in fact, that the pauper Janet Garrie or Peebles was born in the parish of Thurso, and was the wife of the deceased George Peebles; that her said husband was born in the parish of St. Cuthbert, and that there are no termini habiles for holding either the pauper's deceased husband, or the pauper herself after his death, to have acquired a residential settlement in the parish of St. Cuthbert, or in any other parish: Finds, in law, that the burden of the pauper's support falls upon the parish of St. Cuthbert, as the birth parish of her deceased husband: Therefore sustains the defences for the parish of Thurso, and assoilzies the defender Charles Manson, inspector of said parish, from the conclusions of the libel, and decerns: Repels the defences for the defender John Thomson, inspector of the parish of St. Cuthbert, and decerns against him in terms of the libel: Finds the parish of St. Cuthbert liable in expenses to the parish of Thurso, and also to the pursuer; appoints accounts of expenses to be given in, and remits the same, when lodged, to the auditor to tax and report.

Note.-The facts of this case are few and undisputed. The pauper Janet Garrie or Peebles, was born in the parish of Thurso, and her husband George Peebles, now dead, in the parish of St. Cuthbert. No residential settlement is alleged to have been acquired, or if acquired, to have been retained by Peebles at the time of his death in February 1848. The pauper has, from about the time of her husband's death, been an object of parochial relief, and, as such, has been receiving aid from the parochial funds of the City parish. The action is for repayment of these advances, and is directed against the inspectors of the two birth parishes. The question is Whether the birth parish of her deceased husband, or her own birth parish, is liable for the pauper's support?

"The principle recognized by the House of Lords in deciding the case of Barbour v. Adamson, was applied in circumstances different from those of the present case.

"The paupers, the liability for whose relief was in question, were the children of a party who had been transported, whereby, and not through his death, the children were left destitute; while here, the object of the action is to subject the husband's birth parish in liability for the support of his widow. It was not, and cannot be disputed, that the principle of the judgment applies to the case of the wife with as much force as to that of the children of a deserting or transported husband. The Lord Ordinary cannot read the judgment of the Lord Chancellor without arriving at that conclusion; and if so, is it not equally applicable where the destitution arises from the husband's death, whether the claim have regard to the relief of his widow or to that of his children? Take the case of children. Unless the principle of derivative settlement be acted on, the very evils would arise, the avoidance of which forms the reason of the judgment in Barbour's case. might occur instances where the destitute children had all been born in the same parish, but this would rarely happen when the deceased father's settlement was not residential, but a birth settlement. The general case would be that of a family of children born in various parishes, and the death of their father, if their own birthplace were to rule the question of settlement, must inevitably lead to their dispersion into different parts of the kingdom, and the consequent introduction of those social evils, the description of which occupies so prominent a place in the Lord Chancellor's observations. It is only by holding the children derivatively to have their settlement in the birthplace of their father, that the children can be kept together after his death; and there would be great

There

hardship and inconvenience attendant on any other rule. During the lifetime of the father, the family may have sunk into poverty through his illness and incapacity to support them, or, as occurred in the cases that have been decided, be may have deserted his children, or been transported. In all these cases the family, during his lifetime, have been receiving aid from his birth parish. So soon as he dies, are the children to be separated and dispersed throughout their several birth parishes? This must be the necessary result if the principle of derivative settlement be not held to fix the liability for their support on their father's birth parish, after, equally as before his death. This is fixed when the father's settlement was residential; and there is no reason, either in principle or ex pediency, for applying a different rule to a birth settlement. "Then, as regards the widow, the same reasoning is applicable her deceased husband's residential settlement is hers, and why not his birth settlement? During his lifetime she must le supported by his birth settlement, in the Lord Ordinary's view of the effect of the judgment in Barbour's case; and after his death is she to be sent to her own birth parish, while the chi dren are left to be supported by the parish of the father's birth? This would lead to that very separation of the family, and t those evils which are to be avoided in the case of the children, by holding them derivatively settled in their father's birt parish. The Lord Ordinary, therefore, cannot arrive at any other conclusion, than that the wife, equally with the childret, must follow the husband's settlement, whether that originates in residence or in birth.

"That practical difficulties may be felt with regard to the continuance or termination of the derivative right of sett ment thus acquired through the husband or father may true; but they are not greater in the case of the widow than that of children, and are, indeed, less so. For, assuming the wife to be identified with her husband in the matter of sett ment, the liability of his parish for her support would term nate only by her second marriage, or by her acquisition of industrial settlement through her own residence in an parish after her widowhood. In the case of children. conuection with their father's birth parish would termineTM their becoming capable to support themselves; and if i failed to acquire a residential settlement, and fell afterm into poverty, then it would be to their own birth parish, not to their father's, that they would be entitled and bou look for relief. Such cases of difficulty, however, can be salve only when they arise; and all that is necessary at present a to see that such difficulties are not of a nature which shrali prevent the recognition of a principle in other respects jectionable."

Thomson, for St. Cuthberts Parish, reclaimed, pis ing-That this case was distinguishable from the ease t Barbour v. Adamson, 30th May 1853, supra, XXV..] 419. A widow is not in the position of a pupil ehlshe is sui juris; and after the marriage is dissolved ar quires a new settlement by residence. Why, after th marriage is dissolved by the husband's death, should sa not recur to her own birth settlement? Barbour's ca is a reversal of what was understood to be the law pro viously, and it should not be extended beyond its near sary import. Hay v. Oliphant, 19th July 1852, sp Hay v. Scott, 23d Nov. 1852, supra, xxv. p. 33.

'The counsel for the Parish of Thurso was not cz upon.

Lord Justice-Clerk.-I confess I think this must be held # settled point, after the decision in the case of Barbour. T woman undoubtedly, by marriage, acquires her husband's sett ment, and, of course, after the husband's death the widow my acquire a new settlement. If a woman marries a Scotch who has no residential settlement, and then becomes a pa her claim is on her husband's settlement. Now, I do not th that the death of the husband produces any difference in gard to the wife's settlement, though, of course, being sun she may work to maintain herself, and so acquire a new set ment. In this case the man was a pauper when he died; by statute his birth settlement was his wife's settlement att. time. 1 do not say how far the case of Barbour goes, or dr not go; but I think this case is clear. It is not in the p

of the parochial authorities to separate mother and child, and the children's settlement here was the father's. I take the law of Scotland, as settled long before the case of Barbour, to be, that a wife acquires her husband's settlement by marriage, and that is decisive of this case.

Lord Murray.-I agree.

Lord Wood-I am of the same opinion. I do not say that, were there any difficulty in arriving at that result, the judgment in the case of Barbour in the House of Lords might not assist in removing it, thinking, as I do, that the Lord Ordinary's views of that judgment are well-founded. But I do not consider any such aid at all necessary. Irrespective altogether of Barbour's case, it appears to me that, whether you look at the law before the late statute, or with reference to its provisions, the birth settlement of the husband, if he has no other, is the settlement of his wife, not only during the subsistence of the marriage, but after the dissolution by his death.

It was not contended that, during the life of the husband, any distinction could be taken between his birth or residential settlement. But what was maintained was, that such distinction had place when the question regarded the liability for the support of his widow on his death; while it was admitted that the widow, if in poverty, would then have her settlement in the parish of her husband's residential settlement, it was maintained that she would not have it in his birth settlement it he possessed no other, and that in that case the parish of his own birth settlement is the one liable to relieve her.

I am not aware of any authority, and none has been cited, for this doctrine. I see no ground for the alleged distinction. If it were entertained, then it must follow, for the reasons explained by your Lordship, that in very numerous instances a widow would have no settlement through her marriage, because it must frequently happen that the husband shall have only a birth settlement at his death. Then, observe the position into which this would bring matters. If, for a number of years, the parties live together, the husband having only a birth settlement, and he then dies, his widow, if entitled to parochial relief, has no settlement in his parish, but falls on that of her own birth. if, again, the parties have lived on, and the husband acquires a residential settlement and then dies, ex concessis, the widow's settlement would be in the parish of that settlement, and not in her own birth settlement. But if they should still live on, and he shall lose his residential settlement without acquiring another, when his birth settlement would revive, and then dies, the widow's settlement would not be in the parish of his settlement, but in that of his birth. I have no idea that there is any ground in law for holding that the rights of a widow in the matter of settlement are subject to this kind of fluctuation, depensing on the varying character of the settlement which the husband may have at the time of his death. I apprehend that, on the contrary, the rule is general, and applies throughout, that while the husband lives the wife is settled in the parish of his settlement, and that she is equally so on his death, whether his settlement be a residential or birth one. And ssuredly the late statute gives no countenance to the opposite view, as birth settlement is there put at least upon an equaity with a residential settlement; and if so, and a birth setlement be the only one the husband had at his death, it is lifficult to understand how any distinction can be drawn beween it and a residential settlement, when the question is as o the derivative settlement of the widow through her mariage, and the liability to support her if in poverty. None an arise in respect of the wife's residence in either, for alhough it may be that they have never resided together in his irth settlement, that might equally be the case in regard to is residential settlement. Nor has any other reason been ssigned for it, which to my mind is at all tenable.

It was, no doubt, said that it had been decided that the marage being dissolved by the death of the husband, his widow ould afterwards acquire an industrial settlement for herself. hat is truc. But her power, when sui juris, of thus separating erself from her husband's settlement, is of no importance in the estion where her settlement is at his death, It, confessedly, onld not do away with her marriage settlement in the parish the residential settlement of her husband; and I am at a ss to perceive by what process of reasoning it can be of any ail in shewing that there is a distinction between his residenal and birth settlement, in relation to the settlement of his dow; or support the conclusion that where the husband had ty a birth settlement, it does not enure to the widow, and

that her maintenance, if a pauper, is a burden on her own birth settlement. I am therefore of opinion that the interlocutor of the Lord Ordinary ought to be adhered to.

Lord Cowan -These views have my entire approbation. I think this case would have been the same independently of the decision in Barbour's, though it might have been attended with some difficulty; but, taking it after the case of Barbour, there can be no room for doubt.

Clark, for the City Parish of Edinburgh, craved expenses.

Lord Justice Clerk.-Certainly not. It was not necessary for the pursuer to be here. It was a question between the defenders exclusively. No decision would have been pronounced against the City Parish in absence; and it is very desirable not to increase expenses in these cases.

Adhere.

Lord Ordinary, Cowan.-Act. A. R. Clark; J. Morgan, S S.C. Agent. For St. Cuthberts, Dean of Faculty (Inglis), J. Lorimer; J. R. Stoddart, W.S. Agent.-For Thurso, T. Mackenzie, Gordon; G. L. Sinclair, W.S. Agent.-R. Clerk.—(G.R.O.)

27th June 1854. FIRST DIVISION.

GROVER, BAKER and Co., and Mandatory, Suspenders, v. HUNTER and BARR, Respondents.

Title to Sue-Interdict-An assignation of a Scotch patent executed in England in the form of a mutual contract, but only signed by the assigner, held sufficient to entitle the assignee, upon caution, to interim interdict against a party alleged to be infringing the patent.

This was an application for interdict at the instance of the suspenders, the proprietors and patentees of a sewing machine, on the averment that Messrs. Hunter and Barr, hat, cap, and staymakers in Glasgow, were illegally making use of their patent machine. The question at issue was--Whether the suspenders had produced a suffieiently good ex facie title?

The patent for Scotland was taken out in name of William Edward Newton of 66 Chancery Lane, London, who assigned the patent to Messrs. Grover, Baker and Co., machine makers in Boston, America. The assignation was made out in England in the shape of an indenture or collateral deed, and had only been signed by Mr. Newton.

The respondents contended that the suspenders had not sufficiently instructed their title.

Answered.-The interdict is only craved upon caution, and parties in the Bill-Chamber do not require a formal proof of title. The deed of assignation is a good title in the law of England.

The Lord Ordinary passed the note, and granted interim interdict.

The respondents reclaimed, but the Court.

Adhered.

Lord Ordinary on the Bills, Lord Robertson.-Act. Sol-Gen. (Craufurd), E. Gordon; Horne and Rose, W.S. Agents.-Alt. T. Mackenzie; J. W. and J. Mackenzie, W.S. Agents.-L. Clerk. (G.R.O.)

27th June 1854.

FIRST DIVISION.

JAMES BARCLAY and OTHERS, Pursuers, v. JAMES
BUNTEN, Defender.

Partnership Joint-Stock Company-Transference of Shares -A holder of scrip in a cemetery company, who had paid the first call, but had not signed the contract of copartnery, sold

his scrip to another, who exchanged the original scrip certificates, got new ones in his own name, attended, and voted without challenge at a meeting of the company, but the regulations prescribed in the contract of copartnery as to the formal transfer of shares never were attended to-Held, in an action brought by a committee appointed to wind up the affairs of the company, that the original holder was no longer liable as a partner.

James Barclay, residing at Westfield Villa, Pollockshaws, and eight other gentlemen, designing themselves shareholders and surviving trustees of the Glasgow Cemetery Company, as duly authorized by, and representing the said company, and having power to wind up the affairs and discharge the debts thereof, raised the present action in the Sheriff-Court of Lanarkshire against James Bunten, wood merchant in Glasgow, as an alleged partner of the cemetery company.

It appeared that, in the beginning of the year 1845, there was formed in Glasgow a cemetery company, upon the joint-stock principle, called the Glasgow Cemetery Company, the capital of the company to be £20,000, divided into 10,000 shares of £2 each; and upon allocation of the shares, a deposit of 2s. 6d. per share to be paid. The defender, on his application, was allocated 100 shares in the company, upon which he paid a deposit of 2s. 6d. per share, and received a scrip certifi cate dated 5th February 1845. Upon allocation of the shares directors or trustees were appointed, ground was secured suitable for cemetery purposes, and to commence the business of the company a call of 5s. per

share was made.

The defender admitted that he paid this first call of 5s. per share, but stated that he never subscribed the contract of copartnery; and that he, prior to the second call becoming due, sold the shares allocated to him to John Binnie, builder in Glasgow, who got himself registered, and attended the meetings of the company. Mr. Binnie delivered up the defender's scrip, and got a new certificate in his own and his brother's name. He

is entered as attending and voting at the meeting of 1st November 1848, when it was resolved to dissolve the company.

In reference to this matter, it was admitted that Mr. Binnie did attend the meetings of the company and voted as a partner; but it was pleaded on behalf of the company that the defender had not complied with the rules as to transferring shares laid down in the contract,→ without which there could be no legal transfer.

4thly, The shares of the partners shall be held as personal property, and, as such, may be disposed of by assignation or testament at pleasure, with this stipulation, that in case of sales inter vivos, the name of the proposed purchaser and the intended price shall previously be intimated in writing to the secretary of the company for the time being, with an offer of the shares to the said trustees for the company's behoof at that price, which they shall be entitled to consider for eight days, at the lapse of which period, unless the offer shall have been accepted by the trustees, the sale as intimated may be carried into effect; and declaring that before any person acquiring right, by whatever manner, to any share or shares, shall be entitled to act or derive any benefit as a partner, the transfer, assignation, testament, or other title in his or her favour shall be produced to the secretary of the company, and a notice or memorandum thereof inserted by him in a book to be kept for that purpose, wherein the whole shares are to be entered numerically, with the name and designations of the shareholders; and for every such transfer or other title so entered after the first entry of the original partner, there shall be paid to the secretary such reasonable fee as the trustees may fix; and

The company ultimately turned out to be a failure, and preparations were made to wind up the affairs. The resolution to dissolve was carried, as above mentioned, in November 1848; and on 4th July 1849, at a general meeting, "it was remitted to the pursuerst, act as they should deem most expedient for the interess of all concerned." They made an extraordinary call t 15s. per share to pay the debts, and brought the present action against the defender for payment of this le, and also for payment of the second call of 58. a share previously made.

The defender contended-1st, That the pursuers ha no title to sue; and, 2d, That his shares having bea transferred, and the company having accepted ari treated the assignee as a partner, he was no longer liable.

The Sheriff decided in favour of the pursuers; and his findings upon the principal points pleaded in d fence are as follows:-In reference to the meeting d 4th July 1849

"Finds that it is immaterial that very few members attended this meeting, as a general meeting having been called in the usual way, the parties who did not attend absented the selves at their own risk, and those who did attend were entitled to act as representing the whole: Finds that at meeting the state of the company's affairs having been before the shareholders present, the propriety of assessing whole shareholders to an amount sufficient to clear off the la bilities of the company, and of raising actions against all faulters, was considered, and the meeting expressly rea that matter to the trustees, with full power to them t therein as they might deem most expedient: Finds th these meetings the pursuers were expressly invested company and its shareholders with power to raise such tion as the present, and with the precise character under they have raised it, as set forth in their summons: Fin the pursuers do not claim the assessment of 15s. per share call made under the contract of copartnery, but as an ment made by them upon the shareholders, under the p conferred upon them at the meeting of the 4th of July is Finds, therefore, that it is immaterial that the amount of said assessment is greater than what the contract permits called up at a single call: Finds that, although the said ment has been chiefly rendered necessary by the fact t trustees having purchased ground before a sufficient amount the stock of the company had been paid up to enable them pay the price without borrowing, yet the objects of the c pany were such as necessarily made the purchase of group first step in its regular operations, and they were author to purchase ground accordingly: Finds that, in making s purchase, the trustees were entitled to trust to their power calling up the stock from the shareholders, and they are blame if the refusal of the shareholders to respond to the compelled them to borrow money for the purpose of paying price: Finds farther, that it is now trite law that a chan mismanagement brought by a shareholder of a joint-sak company, against the trustees or directors of it, whilst found a claim against the trustees or directors personally affords no defence to a claim brought by them for bei! the company: Finds that the contract of copartneryst company, of which a copy forms No. 32 of process, dist lays down the procedure by which shares may be trans from the original holder of them to any purchaser from the effect of liberating the original holder from liability company Finds that, although the defender avers an proved that, in point of fact, he sold his shares to Mr. Binnie, he has not proved that the necessary forms were,

upon such entry being made, the party holding such tit be deemed a partner of the company in the same way or she had signed this contract, and shall become bound the conditions herein contained, and to relieve the party ferring of the whole debts and obligations of the compart in general, of all prestations incumbent on the partners