said gangway to the shed at the said wharf, and while being so engaged a tub or boin was suddenly lowered without due instruction, and in a culpable, negligent, careless, and reckless manner, on to said truck, by an engineman, also in the employment of said defenders, said tub or boin being attached to a steam crane on said wharf, whereby the said truck was thrown off the said gangway, along with the said Thomas Elliot, and fell upon the top of him, and caused him to sustain serious injuries on various parts of his body, and particularly on the ribs of his left side, as also several cuts and bruises on his head, and particularly a serious wound or injury upon his right eye, by cause of which injuries the said Thomas Elliot was obliged to be conveyed to the Royal Infirmary on or about the 25th day of February last, and where he remained till on or about the 8th day of March thereafter, the said injuries upon his body being partially cured, and also by cause of which injuries to his right eye, as aforesaid, the said Thomas Elliot has been obliged since his dismissal from the Royal Infirmary to attend, and is still attending, the Eye Infirmary, No. 76 Charlotte Street, and on account of which injuries the health and physical system of the said Thomas Elliot have been so severely affected as permanently to disable him and render him unable to earn a livelihood, with interest at the rate of five per centum per annum upon the said sum of £200 sterling from the date of citation hereto till payment, and with expenses. Appearance was entered, and the defence was set forth in the following minute: 1. A denial of the grounds of action libelled, and in particular a denial that the accident referred to in the summons, and consequent injury sustained by the pursuer, was attributable to any fault, negligence, carelessness, or recklessness on the part of the defenders or of any other person or persons for whom they are responsible, or that the defenders are in any respect responsible for such injury, and explained 2. That the occurrence in question, if not purely accidental, was the result of negligence or want of proper care on the part of the pursuer himself, while engaged, in common with his fellow-labourers, in the operation of discharging the cargo of salt referred to in the summons, for which, accordingly, the defenders are noways responsible. 3. The pursuer was the party in charge of the truck by means of which the salt was being landed, and it was his special duty to see that the tub in which the salt is raised from the hold of the ship was properly placed on the truck, or, in other words, that the truck was so placed as to receive the tub in a safe and properly balanced position; but this he neglected, though duly warned. on the occasion in question, and by allowing the tub to descend too near one end of the truck, the other end, at which he stood, was suddenly jerked up, and hence the accident. 4. All the machinery and apparatus employed in connection with the discharge of said cargo having been in good order and condition, and in every respect fit and sufficient for the purpose if properly used by the pursuer and the other workmen engaged along with him in that common operation, the defenders are subject to no responsibility, even if any of the pursuer's fellow-labourers were guilty of negligence, or carelessness, or recklessness, which is not admitted, and consequently no relevant ground of action has been libelled. 5. More particularly as the man in charge of the engine was working in concert with the pursuer and others in the common operations of discharging the cargo, any neglect, or want of care, or recklessness on his part, if any, would involve no grounds of responsibility on the part of the defenders, and no other ground of liability being alleged, the defenders fall to be at once assoilzied. 6. The injury sustained by the pursuer is moreover greatly exaggerated, and the claim set up extravagant, even had the defenders been to blame, which is denied. The record having been closed, and parties heard, the Sheriff-Substitute pronounced the following Interlocutor: Having heard parties' procurators on the closed record, Finds it libelled that the pursuer was injured on the occasion set forth in the summons when in the defenders' employment discharging cargo from a brig laden with salt, then lying at the south side of Glasgow harbour, and while he was occupied at or near a stage or gangway leading from said brig to the quay, in landing tubs of salt into a truck to be driven by him, instruction, and in a culpable, negligent, and careless manner in consequence of a tub being suddenly lowered without due on to said truck by an engineman, also in the defenders' employment-the tub having at the time been attached to a steam crane on the quay--whereby the truck which was being loaded was, along with the pursuer, thrown off the gangway, the truck falling upon him as stated: Finds that there is not in the summons any allegation that the appliances provided by the defenders and used on said occasion were insufficient, or that said engineman was unskilful: Finds, in these circum. stances, that as the engineman and the pursuer were simul taneously engaged in the defenders' service in the common work of discharging said vessel, they were collaborateurs, and therefore sustains the defences, and assoilzies the defenders: for the engineman's fault the defenders are not responsible; Finds the pursuer liable in expenses; allows an account thereof to be lodged, and remits the same to the auditor to tax and report, and decerns. Company, 17th June, 1858; House of Lords, 30 Jurist, p. 597, NOTE. The cases Reid and M'Guire v. Bartonshill Coal rule the present. There an engineman at a colliery was the cause of the occurrence out of which the action arose; and here the same description of workman appears to have and doing common work agreeably to the definition given in occasioned the pursuer's injury. They were fellow-workmen, the cases cited. "It is not necessary for this purpose that the workman causing, and the workman sustaining, the injury acts. The driver and guard of a stage coach-the steersman should both be engaged in performing the same or similar and rowers of a boat-the workman who draws the red-hot iron from the forge and those who afterwards hammer it into shape-all are engaged in one common work. So in this case directly to the common object of their employer in bringing as to the engineman and the miners-they are all contributing the coal to the surface." Per Lord Cranworth, 30 Jurist, p. 605. The defender appealed, but the Sheriff adhered. 29TH SEPTEMBER, 1864. SHERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON AND SMITH.) GEORGE SIMPSON v. JOHN WALKER-et è contra. Sale-Contract-Weights and Measures Acts-5 Geo. IV., c. 74-5 and 6 William IV., c. 63-What is a Boll? Wheat and oats were sold in stack for a slump The record having been closed, a proof allowed and led, and parties' procurators heard, the Sheriff-Substitute pronounced the following Interlocutor: sum, each stack being guaranteed to contain a certain num- | him, this loss the pursuer is bound to make good to the ber of "bolls of good kept" grain; on being thrashed out, defender; (4) In the whole circumstances, the pursuer, a deficiency was alleged in the number of bolls in weight being indebted to the defender, in place of the defender -Held (1), that under the Weights and Measures Acts to the pursuer, decree of absolvitor ought to be pronothing is said of a boll, as a measure, and it is left nounced, with expenses. uncertain what its weight is; (2) In Glasgow and neighbourhood, a boll of thrashed wheat is considered to be four bushels of sixty lbs., equal to 240 lbs., and a measured boll of thrashed corn as six bushels of forty lbs. each, or 240 lbs.; (3) In Glasgow, thrashed wheat is sold by the boll of 240 lbs., and "a boll" of wheat or oats means 240 lbs., unless measure is mentioned; but (4) When wheat or oats is bought or sold by the boll, without mentioning weight or measure, measure is only guaranteed; (5) That it is customary to sell wheat and oats either by weight or measure, and if in stack, by measure, and not by weight; (6) That grain bought in stack, the quantity guaranteed must be held as so many bolls by measure. GEORGE SIMPSON, civil engineer in Glasgow and a farmer at Milton Farm, raised an action against John Walker, farmer at Eastfield, near Springburn, on 7th June, 1861, for payment of £175, the price of certain quantities of wheat and oats sold and delivered; and on 17th June the same year, John Walker raised an action against George Simpson for payment of £100 83 8d, the price of wheat and oat straw sold and delivered by him. Appearance was entered in both actions, and they were conjoined on 20th November, 1861. Having resumed consideration of this conjoined process, with the proof and productions, and having heard parties' procurators thereon, Finds that, on or about the 28th Jan., 1861, the party John Walker purchased from the party Geo. Simpson six cows at the price of £63, which sum the party Walker paid at the time of purchase: Finds that the cows were to be delivered in a short time after the sale, but as disease broke out among Mr Walker's cattle, he requested could, Mr Walker to pay any loss that might be caused on the Mr Simpson to retain the cows and dispose of them as he best sale, and accordingly, early in the month of February, Mr Simpson sold off five of the cows to Mr Malcolm Stark, cowfeeder in Glasgow, for £55; and he admits on record that there was no loss on the sale of these five cows, but the sixth cow was not sold by Mr Simpson, as it was unwell, and it ultimately died in Mr Simpson's possession-Mr Simpson only claims £4 as the loss on this cow: Finds that, on 8th April, 1861, the party Simpson sold to the party Walker, for the sum of £425, seventeen stacks, then standing in his stackyard at Milton farm, and represented by him to consist of nine stacks of wheat and eight stacks of oats, Mr Simpson guaranteeing that there were twenty-one bolls of well kept wheat in each stack of wheat, and twenty-one bolls of well kept oats in each stack of oats, Mr Walker to get Mr Simpson's barn and mill, if required, when thrashing the corn and making it ready for market, and to pay him £250 then, and the remainder of the price on 1st June following, but Mr Simpson gave no guarantee that the wheat or oats were to be of any particular weight per bushel or boll: Finds that after the bargain was concluded Mr Walker, in terms thereof, paid £200 to Mr Simpson by cheque, 10s in cash, and Mr Walker the amount of an account due by him to Mr Simpson of £13 was credited with £50 to make up the sum of £250, and with 10s, which Mr Simpson discharged, and which is No. 4 of No. 11 of process. Mr Simpson then gave Mr Walker a receipt for the £250, No. 3 of No. 11 of process, and in which way Mr Walker was repaid the £63, being the price of the six cows bought by him on the 28th January, 1861: Finds that when the seventeen stacks of corn were taken possession of by the party Walker, it was discovered that only eight were wheat and nine oats, and Mr Walker claims a sum of £4 7s 3d, being the difference of value between wheat and oats, and the party Simpson's procurator at the debate did not dispute this claim: Finds that the party Walker has tain twenty-one bolls of well kept corn in each stack as guaranteed: Finds, therefore, that the party Simpson, under the action at his instance, is entitled to the price of the seventeen stacks of wheat and oats, being £425, under deduction of the sum of £250 paid on 8th April, 1861, and of £4 78 3d, the difference in value between a stack of wheat and one of oats, being a balance of £170 12s 9d in the Simpson pleaded-(1) The defender having made the purchases referred to, at the prices stated, is restingowing the balance sued for; (2) The defender having taken possession of nine stacks of oats, and eight stacks of wheat, and having proceeded to thrash and dispose thereof, without objection or intimation of any discrepancy in the number of wheat and oat stacks respectively, must be held to have been acquiesced in; (3) Non constat that there was any deficiency in the produce of the stacks purchased and sold; (4) But esto, that there was any such deficiency, the stacks having been taken possession of, and thrashed out, and the produce disposed of without any objection or opportunity afforded the pursuer for testing the quantity, quality, or weights, all claim for alleged deficiency is excluded; (5) In terms of the acceptance, the pursuer was entitled to have the benefit of the value of any "weaks" or less perfect produce set against any deficiency or produce otherwise; (6) The other claims set up, so far as not denied, being credited and extinguished in the other action, fall to be disal-party Simpson's favour: Finds that at the time of the sale lowed here. Walker pleaded-(1) By the contract betwixt the parties, the pursuer having guaranteed that there was a specified quantity of wheat and oats in the stacks purchased from him by the defender, he was bound to deliver the quantity so guaranteed before being entitled to the balance of the purchase price; (2) The stacks purchased by the defender not having turned out the quantities guaranteed by the pursuer, the latter must allow the defender a deduction from the purchase price for the deficiency in quantity undelivered; (3) The defender having sustained a loss upon the pursuer's failure to deliver the number of stacks of wheat purchased from failed to prove that the stacks of wheat and oats did not con of the seventeen stacks of corn, it was part of the contract that the seller, the party Simpson, was to get the straw of one of the stacks of wheat at the market price, less cartage, and it is proved that the party Walker delivered in Mr Simp less cartage of 418 8d per ton, amounts to the sum of £10 son's yard 5 tons 4 cwt. of straw, which, at the market rate 16s 8d: Finds that this five tons and four cwt. of straw was more than the produce of one stack of wheat, but it is not proved that the party Simpson objected to the quantity or his agents wrote to the party Walker the letter No. 11/7 of offered to return the overplus till 29th August, 1861, when process: Finds that the party Simpson admits that the party Walker, on 14th May, 1861, sold and delivered to him three loads of oatmeal at the rate of £2 2s 61 per load, which bolls of oats at the rate of £1 0s 9d per boll, which amounts amounts to the sum of £6 7s 6d, and on 20th May, 1861, six to the sum of £6 4s 6d: Finds that the party Walker has of it. As Mr Simpson has been successful on the principal points in dispute, and has not been indemnified for the whole of his loss on the transaction with regard to the cows, he is found entitled generally to the expenses of process. Both parties appealed, and after repeated hearings, the Sheriff pronounced the following judgment: failed to prove that he sold and delivered to the party Simpson the straw of the nine stacks of oats above referred to, and for which he claims £77 as the agreed on price: Finds that the party Walker admits that he purchased from the party Simpson certain malleable iron pipes, and a ton of potatoes, amounting, conform to account No. 10/8 of process, to the sum of £6 158: Finds that the party Simpson has failed to prove that he kept the cows sold by him to the party Walker for three weeks, or for a longer period than is usual for a Having heard parties' procurators at great length at differseller to do in such transactions: in law, Finds that the party ent diets, under their mutual appeals, upon the Interlocutor apSimpson having allowed the party Walker to leave the 5 tons pealed against, and made avizandum with the debate, and con4 cwt. of wheat straw in his yard and for his use, without sidered the record, along with the proof adduced by both parties, objection or offer to return the overplus from 8th April to and advised the conjoined actions and whole process, Finds that 29th August, he is bound to pay its price: Finds that the the summons in the action at the party Simpson's instance, which party Walker having agreed to pay the party Simpson for any was the leading process, concludes for payment of a sum of £175 loss that might arise from the sale of the six cows, he is liable as the balance of the price of nine stacks of wheat, and eight for the £4 claimed by Mr Simpson as loss on the cow which stacks of oats, purchased by the defender Walker from the was unsold, and which afterwards died: Finds, therefore, that, pursuer on or about 8th April, 1861, for the sum of £425 in under the action at his instance, the party Walker is entitled all, at the rate of £25 a stack, after deduction of £250 paid to to £10 168 8d, being the price of the 5 tons 4 cwt. of wheat account thereof at the time of the purchase: Finds that in the straw; £6 7s 6d, the price of three loads of oatmeal; £6 4s 6d, condescendence it is explained that it was eight, and not as the price of six bolls of oats under deduction of £6 158, the stated in the summons, nine stacks of wheat, and nine stacks price of the malleable iron and potatoes; and £4 for the loss of oats, in place of eight stacks, as stated in the summons, sustained on the transaction with regard to the cows, leaving which the defender purchased and took possession of, but as a balance of £12 13s 8d in favour of the party Walker, which the price of each stack was the same, this does not affect the balance of £12 13s Sd, being deducted from the sum of £170 cumulo amount concluded for: Finds that the contract was for 12s 9d due to Mr Simpson, under the action at his instance seventeen stacks in all, nine of wheat, and eight of oats, against Mr Walker, leaves a balance of £157 19s 1d, with written missives which passed between the parties, and under interest in terms of the conclusions of the summons; and in a guarantee that in each stack there was twenty-one bolls: the action Walker v. Simpson assoilzies the defender: Finds Finds that the pursuer Simpson, when examined as a haver, the party Walker liable in the expenses of this conjoined identifies the offer and acceptance produced by the deprocess, of which appoints an account to be given in, and fender, but states that the offer prefixed to his acceptance is remits the same to the auditor to tax and to report, and not the original offer which was sent to him, but a copy, and decerns. the real one had been lost: Finds that the offer, which is dated 4th April, 1861, and addressed by the defender to the pursuer, is in the following terms:-"Sir, I hereby offer to pay you the sum of £425 sterling for seventeen stacks standing in your stack yard, your property-nine of them is wheat, and eight of them is corn. You guarantee there is twentyone bolls of good kept wheat in each stack of wheat, and twenty-one bolls well kept corn in each stack of corn, and I am to get the use of your barn and mill, if required, when thrashing it, and I am to pay you £250 sterling on your acceptance of this offer to account of the above sum, and the remainder by the first of June next. I am, etc. (signed), JOHN WALKER:" Finds that the pursuer's acceptance of this offer, which is dated 8th April, is in the following terms:— "I accept your offer for seventeen stacks belonging to me at Milton farin, it being understood that should any stack contain more than twenty-one bolls I am to get credit for the surplus set against any stack or stacks that does not contain that amount, all weaks also to be credited according to value in like manner. I am also to receive the straw of one stack of wheat, less the cost of carriage, at the market rate. I acknowledge receipt of cheque for £250, cash paid to me, and the balance, one and fifty, to be paid on first June next. I am, (signed) GEORGE SIMPSON:" Finds that, in defence against this action, Walker alleges that when he took possession of the seventeen stacks specified in the missives, he found that, instead of there being nine stacks of wheat and eight stacks of corn, as stipulated for, there were only eight stacks of wheat, the remaining nine stacks being oats, and he claims a deduction from the price on that account of £4 78 3d, being the difference realised on the prices of the two kinds of grain-between a boll of wheat and a boll of oats: Finds that this deduction from the price was not disputed by the pursuer, and falls to be allowed: Finds that the defender farther alleges, in defence, that the eight stacks of wheat taken possession of by him, when thrashed, produced only 149 bolls, allowing 240 lbs. weight to the boll, and the nine stacks of corn yielded only 142 bolls, allowing 240 lbs. to the boll, or 291 bolls in all between the two, at these weights per boll, instead of 357 bolls, as guaranteed under the contract, there being thus a deficiency of 654 bolls, which, at the average price of £1 33 24d realised by him for the wheat and oats, amounts to £75 18s 9d, which sum he claims as a farther de duction from the price of the stacks concluded for: Finds it pleaded by the pursuer, in answer to this claim for deduction of £75 odds, that as the grain was sold in stack for a slump sum at so much each stack, without any guarantee as to weight, the defence founded on alleged deficiency of weight is irrele NOTE. The principal point in dispute between the parties in this conjoined process has reference to the guarantee that each of the stacks, whether of wheat or of oats, should contain twenty-one bolls of well kept corn. The onus of proving that they did not contain this quantity clearly lay upon the purchaser, Mr Walker. A boll is a measure consisting of four bushels as regards wheat, and six bushels as regards oats, and both these grains varying in weight according to quantity. Mr Walker has attempted to prove that a boll, either of wheat or oats means 240 lbs., making a bushel of the former weigh 60 lbs., and of the latter 40 lbs. He has shown that it is usual in the Glasgow market to sell wheat by that weight, and to call it a boll, but has entirely failed to show that it is a universal custom, or that it applies to corn of either description when sold in stack. Mr Walker has not attempted to lead any evidence that the stacks did not contain twenty-one measured bolls, and he does not pretend to say that he got any guarantee that either the wheat or oats should be of any particular weight. The next important point in dispute is with regard to the alleged sale of the straw of the nine stacks of oats by Walker to Simpson. As this sale is denied by Mr Simpson, the onus of proving it lay with Mr Walker. The evidence is conflicting; but the Sheriff-Substitute thinks Mr Walker has failed to establish this sale. In both of the above points of this case Mr Simpson has been successful. As to the transaction about the cows, Mr Simpson claims £6 6s for three weeks' keep of the six cows, and £4 for loss on one of them named "Glasgow." From the proof, it appears that these cows were sold to Mr Walker on 28th January, 1861, and five of them were re-sold to Mr Stark on the first week of February. Mr Simpson therefore had these five in his possession for a very short time after the original sale to Mr Walker, and it is proved that it is usual to keep cows so sold for a short time without charging anything for their keep. On the other hand, Mr Simpson lost more than he claims on the sixth cow, which never was re-sold and ultimately died in Mr Simpson's possess sion, but from the way the claim for this cow was made on record, the Sheriff-Substitute does not think that he can award any more than the £4 claimed for this loss. Mr Simpson has also been unsuccessful in resisting the claim for the price of the 5 tons 4 cwts. of wheat straw. He admits that under his bargain he may have been bound to take the wheat stacks, but that the quantity left for him was double the produce of one stack; the Sheriff-Substitute, however, thinks that as he allowed the straw to be built up in his yard, and never offered to send the overplus to Mr Walker till 29th August, he ought to pay for this straw; his agent offered at the debate to pay for half 66 vant, and that as the defender took possession of the whole stacks and thrashed them out, by himself or his own servants, without objection as to the quantity produced, and disposed of the produce without any communication with the pursuer, if the produce of the wheat and oats was less than what he anticipated, this must have been owing to carelessness on the part of the defender or his servants in the operation of thrashing, for which the pursuer is not responsible: Finds that besides this deduction claimed by the defender from the price of the stacks on account of deficiency, he has raised a counter-action at his instance against Simpson, in which he claims, first, £10 16s 8d as the price of six carts of wheat straw, being the straw of one of the stacks sold to Walker, which were delivered to Simpson, in terms of the missive, on 8th May, 1861; secondly, the sum of £77 as the agreed on price of the straw of the nine stacks of oats alleged to have been sold to, and taken possession of by, Simpson, on 11th May, 1861; thirdly, the sum of £6 7s 6d as the price of three loads of oatmeal, sold and delivered to Simpson, and £6 4s 6d, as the price of six bolls of oats, said sums amounting in cumulo to £106 88 8d: Finds that the sums claimed in this counteraction are denied by Simpson to be due, with the exception of the last two items of £6 7s 6d, and £6 4s 6d, which are admitted, under the explanation that they were given in liquidation pro tanto of a counter-account owing to Simpson for the keep and loss on some cows which had been sold to Walker, and some iron pipes and potatoes got by Walker, amounting to £17 18: Finds that in the leading action at Simpson's instance, seeing the grain was bought in stack and thrashed for a slump sum at so much each stack, under a guarantee merely that there were twenty-one bolls of well-kept grain in each stack, the real question at issue is whether each of the seventeen stacks really contained twenty one bolls of well-kept wheat and oats, in terms of the contract: Finds that as the whole stacks were taken possession of by the defender, Walker, and thrashed by him or his servants, without any interference on the part of the pursuer, the onus of proving that the stacks did not each contain twenty-one bolls, or 357 measured bolls in all, lay upon the defender: Finds that in determining the question it is necessary to ascertain what a boll really means: Finds that the term boll means a measure, differing, however, in different places, both in England and Scotland, and that in the Mercantile Tables of Glasgow it is set down as weighing 240 lbs.: Finds that in the Act 5 Geo. IV., cap. 74, and in the Act 5 & 6 Will. IV., cap. 63, anent Weights and Measures, nothing whatever is said as to the measure of a boll, and it is left uncertain what its weight is to be held to be: Finds it proved that in Glasgow and its neighbourhood a boll of wheat, when thrashed, is regarded as a measure consisting of four bushels of 60 lbs. each, or 240 lbs. in all; and a boll of corn, when thrashed, as a measure of six bushels of 40 lbs. each, or 240 lbs. in all: Finds it also proved that it is usual in the Glasgow Market to sell wheat, after it is thrashed, by weight; and that in Glasgow and the neighbourhood, where wheat, after being thrashed, is sold by the boll, it is understood to yield 240 lbs. to the boll, or 60 lbs. per bushel, and that when the expression a "boll" of wheat or oats is used, it is understood to weigh 240 lbs. unless measure is mentioned; but that when nothing is said about weight, and wheat or oats is bought or sold at so much per boll, it is only measure that is guaranteed: Finds it proved that it is customary to buy and sell both wheat and oats cither by weight or measure, and that when bought green or in stack it is common to sell by measure, and not by weight: Finds that, in the present case, the wheat and oats were purchased by the defender, Walker, in stack, and while unthrashed, for a slump sum, at so much per stack, without anything being said or guarantee given as to weight, the only guarantee being that in each stack there were twenty one bolls of good, well-kept wheat or corn respectively: Finds that there is no allegation by the defender on record, or any proof in process to instruct that the stacks did not each contain twenty-one measured bolls of well kept wheat and corn respectively: Finds, in these circumstances, that, although a great amount of evidence has been led by the defender to show the way in which the grain was thrashed; that every care was taken in the thrashing and weighing it, and that notes of the weights and the prices realised for the wheat and oats were furnished to the pursuer, and that, calculating 240 lbs. to each boll, there was a deficiency, according to that weight and the prices realised for the wheat and oats, to the amount of £75 18s 9d, as claimed by the defender, yet such proof is irrelevant, in respect that the grain was not purchased by the defender in a thrashed state, but in stack, for a slump sum, and no guarantee was given that the wheat or oats was to be of any particular weight per bushel or boll, but merely that each stack contained twenty one bolls: Adheres, therefore, to the Interlocutor under review on that point, finding that the party Simpson is entitled, under the action at his instance, to the price of the seventeen stacks, being £425, under deduction of £250 and of the aforesaid sum of £4 7s 3d, being the difference in value between a stack of oats and one of wheat, as admitted by the pursuer, leaving a balance of £170 12s 9d in the party Simpson's favour, under the action at his instance: Finds that, in the counter-action at Walker's instance, the chief matter in dispute between the parties is in regard to the £77 claimed as the price of the straw of the nine stacks of oats alleged to have been sold to Simpson and taken possession of by him: Finds, upon this point, that the sale is denied in toto by Simpson, and that the evidence given by the parties themselves is directly opposite to each other, and there is no proof to instruct that the straw in question was sold to Simpson or interfered with by him, and that the evidence tends rather to show that it was to the witness Turnbull, who swears that it was sold to him by Walker, along with some short straw, at £77 in all, and was carted away and sold by him to other parties: Finds that although this party Turnbull has since been convicted of reset of theft, there is nothing in his testimony to render him unworthy of credit, if no proof has been led to contradict or cut down his evidence, or to instruct that there was any understanding between him and Simpson in regard to this straw, or that the latter had sold the same to Turnbull, or got any IOU or money from him on account of it: Adheres, therefore, to the Interlocutor under review, on this point, finding that the sale of the straw to Simpson has not been proved: Adheres also to the Interlocutor in regard to the £10 16s 8d as the price of the six carts of wheat straw delivered to Simpson in terms of the contract for the seventeen stacks, and that for the reasons stated by the Sheriff Substitute: Adheres also to the Interlocutor under review, so far as regards the sum claimed by Simpson for the keep of the cows and loss sustained by the one that died, and also as regards the other items between the parties, for the reasons stated by the Sheriff Substitute, thus bringing out a balance in favour of the party Walker, under the action at his instance, which being deducted from the sum found due to Simpson in the action at his instance, leaves a balance due to Simpson, upon the whole transactions between the parties under the conjoined actions, of £157 19s 1d, for which, with interest as concluded for in the summons at Simpson's instance, decerns against the party Walker; and upon the question of expenses, adheres to the Interlocutor under review, for the reasons stated by the Sheriff-Substitute; therefore, upon the whole, dismisses the appeals for both parties, and decerns. For Simpson-WILLIAM BURNS. For Walker-JOHN STRACHAN. 4TH OCTOBER, 1864. SHERIFF COURT, PERTHSHIRE--PERTH. THE CENTRAL RAILWAY COMPANY v. JOHN THOMSON. Railway Company-Railway Clauses Consolidation (Scotland) Act, 1845-Penalty-Travelling without a ticket. A party travelled on the second-class carriage of a railway company in mistake for a third; at the end of his journey he offered third-class fare; this was refused, and he was prosecuted for travelliny without a ticket-circumstances in which held that the traveller was not liable in the penalties. THE accused is prosecuted under the 96th sect. of the Railway Clauses Consolidation (Scotland) Act, 1845, for the penalty of two pounds and costs, for travelling from L* Larbert Junction to Perth in a second-class carriage class carriage at Larbert without a ticket (which, indeed, without having previously purchased a ticket to entitle him to do so, knowingly and wilfully, and with intent to avoid the payment of the fare which he ought to have paid for so travelling. The facts are these:-Thomson, a cattle-dealer, in Perth, entered, without a ticket, a second-class carriage in the mail train at Larbert, and was conveyed to Perth. He had been drinking, if not absolutely drunk, and states he was in a great hurry to get into the train, and thought he had jumped into a third-class carriage. There was a third-class carriage, but only from Edinburgh and Glasgow, attached to the train, but no tickets could be got for such third-class at Larbert. On arrival at Perth he did not pretend to have a ticket, but offered at once to pay, as a passenger, for the third-class, in which class he usually travelled; but which was refused to be taken, and he is now sued for the penalty. He was no stranger, and was well known to the guards, and he had money sufficient to pay the higher rate. There can be no question but that Thomson is liable for the second-class fare. But it is not so clear that he is also liable in the penalty for merely refusing to pay for a second-class fare. The clause libelled is highly penal, and must be strictly interpreted. It is obviously meant to prevent the fraudulent use of a railway by persons "knowingly and wilfully, and with intent to avoid payment of the fare." It was not contended that every person who travelled without previously purchasing a ticket, but who offered payment of the fare on arrival, was, in addition, liable in the penalty. The error is in the officials allowing such persons to enter the carriage without first qualifying themselves by the purchase of tickets. If, without any falsehood or deceit, a passenger at once offers to pay at the end of the transit, the criminal intent is surely avoided. Thomson at once offered to pay for the fare of a third-class carriage, and the question is, whether his refusing to pay the difference for the higher grade renders him liable in the penalty for travelling "with intent to avoid payment of the entire fare?” The Sheriff-Substitute concedes that a person who by any false means endeavours to travel in a higher class of carriage than his ticket enables him to enter-such as entering it against challenge, or by deception, concealing himself in the carriage, altering the ticket, or passing from one carriage to another, or seeking to escape on arrival-might in all such cases be made liable in the penalty, as designing to defraud the company of the increased rate of fare applicable to the carriages in which he travelled, intending to defraud the company of the difference. But his doubt is, that where no false representation is made, or any deceit used, where the person, as here, is quite well known and law abiding, and having a ticket, or, what is equivalent, offering to pay the fare of a ticket, though of a lower grade, under the mistaken notion that he is not liable for the difference, can be brought up for the penalty applicable to an attempt to defraud as if travelling without paying any fare. Take the case that Thomson had entered the third he could not have purchased there), and had offered payment of the third-class fare on arriving at Perth, he could not have been liable in the penalty; and it is not easy to see how a different result must follow because he got into a second-class carriage, and offered payment of the fare of a third. He may bave, from the state he was in, made the mistake in ignorance. But, in every way, it rests with the pursuer to prove the intent to defraud from the beginning—that is, that Thomson intended to travel in a second-class carriage at the cost of third-class fare. The civil claim is undoubted. But the Sheriff-Substitute has ever opposed the intervention of the criminal law to enforce mere civil claims. Act. JAMESON. [8TH OCTOBER, 1864. Alt. SCOTT. SHERIFF COURT, PERTHSHIRE-PERTH. (SHERIFFS GORDON and DR BARCLAY.) THOMAS ROY v. ROBERT DUFF. Landlord and Tenant-Sequestration currente termino.— Circumstances in which a landlord was held justified in applying for and executing sequestration currente termino. THE defender was a draper in Perth, where he had two shops. He intended to give up one of them, and to snb-let it for the remainder of the year. With this view, he advertised a sale of the stock in the shop. The landlord thereupon demanded security for his current rent, which was refused. He then applied for sequestration, which was obtained and executed. The tenant consigned the rent, and the sequestration was removed. A record was made up, and proof led of the circumstances which was pled in justification of the application for and execution of the sequestration. Thereafter the Sheriff-Substitute pronounced the following Interlocutor: with the process, Finds that the merits of the action have Having heard parties' procurators, and made avizandum been satisfied by payment and consignation, which latter allows the pursuer to uplift: Finds, under the proved circumdefender liable in expenses, and remits the account thereof to stances, the sequestration was justified: therefore, Finds the the auditor to tax and decerns. NOTE.-Perhaps the case is a hard one. The defender's solvency seems beyond all question, and the stock subject to the hypothec of the pursuer is proved to have been most ample. Nevertheless, the rule of law is very clear; and so long as a party only demands his legal rights, he cannot be held in the wrong. exercise his right of retail in the usual and ordinary manner Where a shop is let for retail, the tenant is entitled to of such business; but not to exercise any unusual or extraordinary mode of disposing of his stock. The subjects are let for the gradual disposal of the stock, under the understanding that a corresponding addition will be made to comunder the name of "cheap sales," may be tolerated, which Even these annual lustrations pensate the like substraction. change of fashion and season imperatively demand, and sale," either by vendue or by retail, where the announcement where new stock takes the place of the old; but a "clearing is to "give up business," and the "whole stock to be sold off without reserve," is not the usual and ordinary mode of doing |