probation of the execution on this
gound is competent in the Sheriff
Court,
...99

Damages-

Collision-Pilot-Pilotage not being
compulsory on the River Tay at
Perth, the fact that a pilot was on
board a vessel charged with injury
to another vessel by collision, would
not be a good defence. Circum-
stances in which held in an action
of damages for injury to a vessel by
collision with another, that the colli-
sion did not take place " through
recklessness, culpable negligence, or
gross carelessness," and defender
assoilzied, with costs,........... ..94
Slander-Privilege-veritas convicii

-

--In an action for slander, separate
charges were libelled. The de-
fenders pleaded the veritas and pri
vilege. Circumstances in which,
held, that certain of the charges had
not been proved by the defender to
be true, but were privileged; while
another charge was not privileged,
and held to have been made falsely
and calumniously, and damages
awarded, with modified expenses,85
Reparation-A servant carelessly left
a horse and cart on a public street,
without any one in charge. The
horse backed the cart into and broke
a large pane of plate glass. In an
action to recover the value, it was
pleaded that the defender was only
liable in the value of an ordinary
pane of glass. Plea repelled, and
decreet given for actual value, ...40
Personal Injury Reparation - A
miner had his leg broken by a fall
from the roof, more than twelve
feet beyond his "brushing," but
though he knew the spot was dan-
gerous, he continued to work under
it and was injured. In an action
for reparation--Held, that as the
accident was occasioned by the rash-
ness or carelessness of the workman,
defenders were assoilzied,.........74
Reparation-Trust-An action of
damages was raised against the
Trustees of the River Clyde, who
are constituted a Trust by various
Acts of Parliament, to which action
the Trustees were called by their
clerk, and by implication the con-
clusions were against the Trustees
qua Trustees and Trust funds, there
being no personal conclusions. In
defence it was pleaded, inter alia,
that neither the funds of the Trust,
nor the Trustees, as Trustees, were
liable in damages caused by the cul-
pability of their servants. Defence
sustained, and action dismissed, 42
Collaborateurs-Action of damages
by a workman against a master for
injury dismissed, the injury having
been occasioned by a fellow-work-
......157
Real-damnum fatale Damages
awarded for goods injured by an
overflow of water caused by the
bursting of a pipe through the
increased pressure of the new
Water Works in Glasgow-Held
that the accident was not a dam-
num fatale, but preventable,...146.

man,

Reparation - Relevancy Probable
Cause In an action of damages it
was not substantively averred that
the slanderer's statement had been
made falsely and calumniously.
Objection-that the libel was there.
fore irrelevant - repelled. Facts
and circumstances held sufficient to
infer malice and want of probable
cause,
..139
Breach of Promise of Marriage- Cir-
cumstances in which modified
damages given, and costs on the
lowest scale,
Real-damnum fatale-During a gale
a chimney stalk fell and injured the
property of a neighbour. In an
action for the loss, the defence, that
the stalk fell ex damno fatale, or
from the force of the wind, repelled,
and held that the cause was the
faulty construction of the stalk, 168

Defamation

..........92

Damages-Relevancy-
Probable Cause, want of-A party
accused of theft was taken to the
police office and searched, but no
charge made, and was thereupon
liberated, raised an action of damages.
The summons did not aver want of
probable cause-Held that the libel
was irrelevant,
............111

Deposit Pledge - Articles were de-
posited in security for a specific pur-
pose, in terms of a letter holograph of
the pledge. The specific purpose was
not accomplished, but other and sub-
sidiary purposes having a similar end
in view were begun. In an action
for re-delivery of the pledge, the de-
fence, that the subsidiary purposes
were covered by the terms of the
letter of deposit, repelled, .........164

Decree by Default-Poinding-What is
Implement?-1st and 2d Vict., cap.
119, sec. 18th-16th and 17th Vict.,
cap. 80-Held by the Sheriff-Substi
tute that a poinding in virtue of a
decree by default does not bar either
the Sheriff-Clerk from granting sist of
diligence or the Sheriff from reponing
the defender,

.10

Disposition-Absolute-In Security-
Certain repairs were made on house
property at the request of parties who
had been formerly the owners and
were still believed to be so by the
tradesman. Bills were granted by
the late owners for the repairs, but
they became insolvent before the bills
became due, and they were ultimately
dishonoured. In an action by the
tradesman against the party to whom
the property had been absolutely dis-
poned, held (reversing the Interlocutor
of the Sheriff-Substitute) that the
party holding the property under an
ex facie absolute disposition was liable
for the repairs, and not the former
owners, though they were the em-
ployers,
..........1
Discharge-Interest-Circumstances in
which held that the discharging of a
sum without preserving a claim for
interest thereon, had the effect of dis
charging the interest, if such was
due, ་་་་་་་་་་་་་་
..........70

Expenses--
Consignation of-Reponing-Where
a libel concludes for expenses
against one defender, and against
another only in event of his appear-
ance, and decree in absence follows,
in terms of the libel, the defender
against whom no expenses are de-
cerned held entitled to be reponed
without consignation,.......... .41
Counsel Reclaiming petition and
answers were drawn by counsel.
After final judgment the Sheriff-
Substitute was craved to approve
of their employment. On his de
clinature, the Sheriff approved
thereof, and found the pursuer
liable in the costs of the appeal, 26
Extract-A party having extracted
a final decree of interdict without
getting his expenses taxed and
decerned for, held not to have
abandoned his claim for expenses,
and found entitled both to expenses
of process,.
..9
Table of Fees-At the calling of a

summons, the defender's ageut pro-
duced a minute and endorsed it on
the summons, but the case was
continued for a week, the record
not being closed. When again
called, the pursuer, by minute,
abandoned the action, and it was
dismissed with costs. The defen-
der's agent charged the fee under
C. of the table, as if the record had
been closed. This fee was dis-
allowed, and the fee for attending,
stating defence, substituted,......72
Taxation - Precognitions - Circum.
stances in which charges for precog
noscing witnesses allowed, al
though the written precognitions
had not been, previously to the
proof, exhibited to the clerk, and
initialed by him,
.....134
Land Clauses Consolidation Act,
8 Vict., c. 19, s. 50-Jury Valua-
tion Trial-Expenses, Taxation of
-Rule of Taxation of Expenses as
to (1) Counsel, (2) Agents, (3)

Engineers, Land Valuators, etc., 51
Executor Nominate - Dative - An
executor-nominate preferred to an
executor-dative, who had been appoin-
ted but not confirmed, and his
nomination recalled. Is reponing or
recalling the correct phrase in such
circumstances?.......... ...........121

In

Feu Contract-Plan-Feu Duties-
Retention-Liquid - Illiquid-The
defender held a feu off the pursuer.
The feu duties were in arrears.
an action of poinding of the ground,
the defender pleaded that the pursuer
was not entitled to payment, because
of failure to implement a condition in
the feu contract-Held that, as the
condition required an action of de-
clarator to establish it, defence
repelled, and decreet given for the
arrears of feu duty,
..55
Filiation-Payments previous to Birth
-Donation-Circumstances in which
held that payments made by a putative
father to the mother of the child pre-
vious to its birth were not to be held
as payments made towards its aliment,
but as donations,
........79

Under

Foreign Enlistment Act, 59th Geo. III.,
c. 9-Civil-Criminal-The Lord Ad-
vocate, qua common informer, prose-
cuted in Exchequer for the forfeiture
of a vessel called the "Canton," or
"Pampero,"
," built on the Clyde, and
seized by order of the Government,
on the allegation that she had been
armed, equipped, etc., for the service
of the Government of the Confederate
States of North America, in contra-
vention of the Foreign Enlistment
Act, 59th Geo. III., c. 69.
instructions from the Lord Advocate,
the Procurators-Fiscal of Glasgow,
qua Fiscals, presented a petition to
the Sheriff of Lanarkshire for warrant
to seize certain packages, the contents
of which were alleged to have been
intended for arming or equipping
the Pampero-warrant was granted,
and the packages seized and carried
away. Thereupon the petitioners,
from whose custody the packages had
been carried off, presented a petition
craving re-delivery, and interdict
against the defender opening the pack-
ages. The defence, that the packages
had been taken away "in the due
course of criminal justice," repelled by
the Sheriff-Substitute and the interim
interdict continued, on the ground
that the proceedings in Exchequer
were not criminal but civil, and it
was incompetent to make use of cri-
minal forms of procedure to aid in a
civil suit-Held by the Sheriff, on
appeal, that the proceedings in Ex-
chequer, being partly criminal and
partly civil, it was competent to grant
warrant to seize the packages in
modum probationis; but as the prin-
cipal proceedings were in the Supreme
Court of Exchequer, which was com-
petent to grant warrant to seize the
packages, procedure was sisted for
fourteen days to allow an application
for such a warrant, but if not then
applied for, the Interlocutor appealed
would be reverted to, and meantime
ordered the packages seized to be kept
in safe custody,
........59

General Turnpike Act, 1 & 2 William
IV., c. 43, sec. 37-Burial Grounds
(Scotland) Act, 18 & 19 Vict., c. 68,
sec. 22-Toll dues-Exemption from
-A carriage was hired to take a body
and the mourners to a burying-ground.
On its way to the dwelling-house, the
carriage passed through a toll-bar, and
toll dues were asked and paid. The
same carriage returned with the body
and the mourners, and passed through
the same bar on its way to the church-
yard, but no dues were asked. In an
action for repetition of the dues
charged and paid, decree given for
the sum sued for,
....63

Guarantee-In an action founded on a
written guarantee, it was pleaded (1)
the action incompetently directed
against the defender alone; no con-
stitution of the debt against the prin-
cipal debtor has been produced, nor
has he been discussed; (2) the prin-
cipal debtor has not been cailed as a
party to the action, repelled, ......180

Husband and Wife-Aliment-Separa-
tion-Jurisdiction-Held that an ac-
tion raised in the Sheriff Court, during
the sitting of the Court of Ses-
sion, by a wife against her husband,
setting forth that she had been obliged
to leave him on account of cruelty,
and concluding for interim aliment
"until a permanent arrangement of
the rights and interests of parties
shall be made by a competent court,"
is incompetent,..............
...101

Implement-seo Decree by Default.
See Poinding.

Landlord and Tenant-see Small Debt
Act.

Removing-Act of Sederunt, 1756-
Relevancy-The Act of Sederunt,
1756, applies to parties standing in
the relations of landlord and tenant
only; and in an action of removing,
the pursuer did not aver that the
defender was his tenant or the
tenant of his author. Action
dismissed,
..148
Sequestration Currente Termino.-
Circumstances in which a landlord
was held justified in applying for
and executing sequestration currente
termino,..
..162
Removing-Act of Sederunt, 1756—
A farm servant, occupying a dwell-
ing-house given to him as part of
his wages, is bound to remove at
the termination of his period of
service without warning given him
as if he were a tenant. Such a
servant is not a tenant, .........156
Lease-

Tenant'sobligationtoFence-Expenses

-

-The tenant of certain fields bound
himself to keep and leave the fences
in a good state of repair, but when
called upon by the landlord, he
failed to repair them. In a sum-
mary action at the landlord's
instance to have the tenant ordained
to repair the fences, the tenant was
held liable, and (reversing the
judgment of the Sheriff-Substitute)
also in expenses,
..138
Lease of Shootings-Right to Burn
Heather Interdict A tenant
under a lease of shootings granted
to him, "with the exclusive right
of burning heather on such part of
the moors as the tenant may think
proper," held not to be entitled to
interdict from burning heather
against the agricultural tenant of
lands over which the shootings
extended, on the ground that the
latter had burnt heather on various
pieces of uncultivated ground mixed
up with the arable portions of his
farm.

Title to Pursue Question-
Whether the lessee of the shootings
has, in such matter, a direct right
of action against the agricultural
tenant?
....72

Loan-Bankrupt-In an action for pay-
ment of a sum alleged to have been
advanced in loan by a party deceased,
founding on a bank draft made speci-
ally payable to the alleged borrower,
and endorsed by him-Held that the

draft did not of itself prove a loan,
but proof allowed by writ or oath, 102

-

Mandate-Stamp-A mandate to sue
an action does not require to be holo-
graph, tested, or stamped, ......150
Maritime-Foreign-Collision Oppo-
site to a building-yard on the Clyde,
where a vessel was to be launched,
there was moored another vessel be-
longing to a foreign owner. As the
vessel to be launched was large, and
it was feared a collision might take
place, application was made to the
harbour-master to move the vessel out
of the way; it was moved a number
of feet eastward. Application was
made to the master to move it farther
off, but this was refused, as he had
not power. The launch took place,
but the tackling gave way, and the
new vessel ran into the berthed vessel
and damaged her. In a summary
action to have her repaired under judi-
cial authority, at the instance of the
master, and for relief-Held (1) That
the action was competent in a sum-
mary form, and at the master's in-
stance; and (2) That the shipbuilder
was liable in the damages done to the
injured vessel,
.........78

Master and Servant-

-

Proof Parole - Presumption — A
farm servant sued his master for
wages. The master, in defence,
stated that he had paid a sum of
upwards of £13; had taken no re-
ceipt, but offered to prove payment
by parole. Objected, that parole
proof could not be admitted in pay-
ment of a sum above £8 6s 8d.
Circumstances in which a proof by
parole before answer was allowed
by the Sheriff-Substitute, and ad-
hered to on appeal by the Sheriff,125
A farm servant is not entitled to leave
his master's service, even to go to
a hiring market, without leave asked
and obtained, before twelve o'clock
noon of the term day,............115
Nuisance-Smoke of Furnace Abate-
ment Act, 20 & 21 Vict., c. 73 (1857).
-Construction-Master and Servant
-Held (1) That the proof of the cause
of the nuisance is laid on the respon-
dents; (2) Master liable for the acts
of his servant in causing a nuisance;
(3) Furnaces in connection with Nas-
myth and Condie hammers come under
the Act; and (4) The words, "as far
as possible," in the second section, to
mean, as far as a respondent can, con-
sistently with the carrying on his
work,
...........44

action against S for payment-Held
that F was the purchaser from K,
and action against S dismissed, ...32
Plea in Law-Definition of (See Pater-
son, 18th July, 1862),
..134
Procurator Admission A private
voluntary society of procurators before
a Sheriff Court have no power to
make bye-laws, making it a condition
of admission that candidates pay a
sum in name of entry money, or to
support a library,.
.126
Promissory Note-Voucher-Affidavit
defective-Correction of-Held that
a promissory note granted twelve
months prior to sequestration by a
bankrupt to his father, was not a
voucher sufficient to support a vote
by the father in his son's sequestration
without a statement in the affidavit
of the manner in which the debt
arose, and that an affidavit defective
in this respect could not be rectified
by amendment,
.......89
Process-

Debate Fee-A debate was ordered
on certain pleas, but before the
diet the defender intimated that
the craving for a hearing had been
fallen from. The pursuer's agent
attended notwithstanding, but no
appearance was made for the de-
fender. The pursuer's agent claimed
a full debate fee. Circumstances
in which only allowed two-thirds, 85
Dismissal of-A proof was allowed to

a defender, and on his craving, six
months were allowed to report. No
proof was taken. On the elapse of
three months the pursuer noved
that the action be revived; but as
the process was in the defender's
custody, no Interlocutor could be
pronounced. On the clapse of six
months, and no proof reported, on
the process being moved in, the
defender contended that the process
stood dismissed by the 15th sec. of
the Sheriff Court Act-Held by
the Sheriff that, in point of fact, a
step in process had been taken; but
as the defender was in mala fide,
the process was held as revived, and
decreet given,
...180
Proof-Witness-Deposition to lie in
retentis-A witness about to leave
the country was examined, and his
evidence was ordered to lie in
retentis. It was never formally
made part of the process, but was
laid up with it, though never sealed.
After the record had been closed,
and at the debate on the merits,
the agent for the party who had
adduced the witness referred to the
deposition; but this being objected
to, it was moved that the deposition
should at that stage be made part
of the process.
Motion refused,

and deposition ordered to be with-
drawn from process, ....... ....94
Prisons Administration (Scotland) Act,
1860-

Form of warrant on petition of County

Prison Board for removal to hospital
of a prisoner under sentence, in
consequence of his being afflicted
with a contagious disease, rendering
his removal necessary for the health
of the other inmates of the prison, 69

Form of warrant on petition of County
Prison Board, with concurrence of
the Procurator-Fiscal, for removal
to hospital of an untried prisoner,
in consequence of disease, threaten.
ing immediate danger to life, which
could not be treated in the prison, 78
Pauper-Aliment-" Needful Sustenta-
tion" what?-A woman, eighty years
of age, became chargeable to a parish,
and she was allowed aliment. Having
found a grandson of the pauper able
to relieve her, the parish sought repe-
tition and relief from him. He agreed
to repay what had been advanced, but
offered to take his grandmother into
his own house, and refused to pay to
the parish any advances made after
this offer. The parish, however, con-
tinued to relieve the pauper, and raised
an action against the grandson for
payment of the advances, and for re-
lief for the future-Held by the She-
riffs-Substitute that the offer of the
grandson was, in the circumstances,
sufficient "needful sustentation," and
relieved him from the advances made
by the parish subsequent to the offer.
The Sheriff reversed, holding the offer
to take the pauper into his house by
the grandson not sufficient, and found
him liable in the sums of aliment sued
for, and also in expenses,

..23

Poinding--Implement of Decree-Re-
poning-16th and 17th Vict., c. 80-
Poinding having followed on a decree
in absence, held that implement had
taken place, and reponing note re-
fused,

Personal injury--

.41

Damages-Contractor-Circumstan-
ces in which a tradesman and his
employer were held liable in dam-
ages to the representatives of a
party killed in consequence of in-
juries received from negligence in
carrying on certain operations, 107
Reparation-Damages awarded for
injuries sustained from defective
machinery,
.......116
Police-Statute-

Common Law-A
summary petition, founded alterna-
tively on Statute and Common Law,
held relevant, although the statute
founded on was erroneously cited, 112
Police-Officer-In a summary action
against a police-officer for delivery of
a piece of cloth taken possession of
by him for the purpose of criminal
justice, and lost, or delivered up to
the wrong party without the warrant
of the police magistrate, held liable in
restitution, or alternatively in pay-
ment of its value, with costs, ......122
Pauper-

Bastard-Parent and Child -- The

father of a bastard contributed to
its maintenance till its twelfth year.
It afterwards fell into bad health
and destitution, and came to be
chargeable to the parish of its birth
settlement, and thereafter died. In
an action by the parish against the
father-Held that he was liable in
repetition, and decree, with ex-
penses, given,.........
.87
Settlement A foreign husband dying
without having acquired, or having
lost his residential settlement, his

widow and children fall back on
their birth settlement.

A father who had no residential
settlement in Scotland at the time of
his death, found that his daughter,
being nearly blind from birth, and
incapable of earning her own sub-
sistence, and unable of acquiring an
industrial settlement, fell not on
the parish of her mother's birth,
who was a Scotchwoman, but on
the parish of her own birth, ...152

A pauper was born in the parish
of L. He resided in the parish of
G for four years and four months,
and died. His widow and chil
dren continued to reside in the
parish of G for upwards of three
years without becoming paupers.
They thereafter became chargeable.
G gave relief, reserving claim from
L. In an action by G against L
-Held (by the Sheriff-Substitute)
that continued residence of the wife
and children in G could not be
added to the residence of the hus-
band, so as to eke out a residential
settlement of five years. Reversed
on appeal, and held that a residen-
tial settlement may be acquired by
a wife and children by combining
the residence of the husband and
that of the wife, so as to complete
the statutory period, .........117
From age and destitution, a pauper
had become chargeable to a parish.
In his old age he had married, and
had a young family. In an action
by the Inspector against a son of
the first marriage for reimburse-
ment, the defence, that the son was
not bound to maintain his step-
mother, and brothers and sisters by

-

the half-blood, repelled,.. ....90
Parent and Child-Bastard, custody of
-Jurisdiction-The mother of a bas-
tard child, who had, with the putative
father's consent, given it out to nurse,
sued the father for restitution of the
child. The father objected, that the
Sheriff was incompetent to determine
the custody of the child. Objection
repelled; and on a proof, the defender
ordained to deliver up the child, 143
- Pauper · Summons
Parish
Rele-
vancy-A wandering beggar, whose
parish of settlement was unknown,
was relieved by the inspectors of
several parishes in which she hap
pened to be. One of these parishes
brought an action of relief against
two other parishes who had relieved
the pauper for repetition; but neither
of which, it was alleged, was her
parish of settlement-Held that there
were no averments relevant and suffi-
cient to support the conclusion, and
action dismissed,
.26
Poor-Wife neglected by her Husband
-Held that an able-bodied married
woman, with three children under ten
years of age, neglected by her hus-
band, and in a state of destitution,
was, notwithstanding the husband
being an able-bodied man, entitled to
parochial relief for herself and
children,
..84
Paraphernalia-

Held that a chest of drawers purchased
by a woman before marriage with

14

her own funds, and exclusively
used by her after marriage for
holding her wearing apparel, is not
inter paraphernalia, but forms part
of the goods in communion, and on
the husband's bankruptcy, belongs
to his creditors,
Bankrupt Vouchers-A stockbroker
claimed to rank and vote on a
bankrupt estate on a stated account,
which consisted of balances of sums
paid for the bankrupt in conse
quence of stock and shares in joint
stock companies, bought and sold
by the broker for the bankrupt.
On the settling days, balances were
carried to account, and the rules of
the Stock Exchange required that
brokerage should be charged on
turnovers, but these were not
vouched-Held that, as the account
was not properly vouched, the
broker's vote was bad, and
rejected,
15
Proof Circumduction-Appeal -16th
and 17th Vict., c. 80, sec. 19-In the
course of a proof the defender in the
cause left the Court without assigning
any reason, although his agent wished
to examine him as a witness at a cer-
tain stage of the proof. The defender's
agent moved for a prorogation, in
respect the defender had left before
being examined. The motion was
refused, and an Interlocutor circum-
ducing the term for proving against
both parties was pronounced. This
was appealed, but appeal dismissed as
incompetent, under 19th sec. of 16th
and 17th Vict., c. 80,

...30

Railway Company-
Detention-Damages-In an action
against a railway company for
detention and loss, circumstances in
which held that the company was
not liable,
.105
Public Carrier-Carriers' Act, 1 Wm.
IV., cap. 68-Certain brittle mate-
rials were packed in a railway truck
specially hired by the senders. They
were moved by the railway com-
pany, without authority, into an-
other truck, and on their arrival at
their destination they were found
broken. In an action of damages,
held that the contract was special,
and did not come under the Valua-
tion Clause of the Carriers' Act, 110
Railway Clauses Consolidation (Scot
land) Act, 1845-Penalty-Tra-
velling 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
travelling without a ticket.
Cir-

cumstances in which held that the
traveller was not liable in the pen-
alties,...
........161
Railway Passenger-A railway pas-
senger was let into a carriage titled
third class, by a servant of the com-
pany, but differently constructed,
and charged higher fare. At the
station for collecting tickets, the
passenger was charged the differ-
ence of fare between the two car-
riages, and on his refusal was forci-

bly ejected, and given in charge to
the police as having been guilty of
disorderly conduct, and resisting
the railway servants. In an action
of damages-Held that the railway
companies were liable for the con-
duct of their servants, and damages
awarded, with costs,
17
Carrier--Letter Mandate-A letter,
ordering goods, containing postage
stamps, was alleged to have been
left with the porter of a railway
company to be forwarded.
It was
lost. In an action for restitution
-Held that the railway company
was not liable, even had it been
proved that the porter had received
the letter, because that would have
been contrary to the Post Office
Acts; and, as acting for the com-
pany, he could not involve them in
an illegal transaction,
..69
Public Carrier-Railway Company
and Canal Traffic Act, 17 & 18
Vict., c. 31, sec. 7-Mercantile
Law Amendment Act, 19 & 20
Vict., c. 20, sec. 17-An animal
was consigned to the defenders for
carriage from Glasgow to Dumfries,
but its value was not declared in
terms of the seventh section of the

Railway Company and Canal Traf-
fic Act, 17 & 18 Vict., c. 31. The
animal was destroyed by fire caused
by sparks from the railway engine.
The contract between the company
and the consigner was, that the
latter "undertakes all risk of loss,
injury, and damage, and other con-
tingencies in loading, unloading,
conveyance, and otherwise, whether
arising from the negligence, de-
fault, or misconduct on the part of
the company, or their servants, or
of any other person or persons what-
soever, or from defects or imper-
fections in the station, platform, or
other place of loading or unloading,
or of the carriage, engine, train, or
railway, or by or upon which such
animal may be loaded or conveyed,
or from any other cause whatever."
In an action against the railway
company for the full value of the
animal, the defenders pled (1) that
its value had not been declared at
the time of the consignment, and (2)
the action was excluded by the
terms of the contract, repelled; and
held that the terms imposed on the
consigner were not just and reason-
able, and decree given for the full
value claimed, with costs,
.8
Reduction and Damages-Small Debt
Act A decree was obtained in the
Small Debt Court, in absence; a charge
and poinding followed. An action of
reduction was then raised in the Court
of Session. In defence it was pleaded
(1) That a rehearing had not been
obtained; and (2) the Justiciary Court,
and not the Court of Session, was the
proper tribunal. Defences sustained,
and action dismissed,..
Reparation-Personal Injury-Mutual
Fault-An ironmoulder was injured
by the overturning of certain moulds
filled with liquid metal-Held, that as
both pursuer and defender had con-
tributed to the injury, no damages

.68

were due, and defender assoilzied, but
no expeuses given,..
..97

Rules recommended for appeals, especi-
ally applicable to summary action, 113

Receipts-Reduction-Held that re-
ceipts signed by marks, while the
receiver could subscribe her name,
having been found invalid as legal
vouchers, did not require to be reduced
by way of action, but might be set
aside by exception,
....38

Regimental Mess-Messman-Circum-
stances in which held that a regimen-
tal mess was not liable for debts
incurred by their messman to trades-
men,
..114

Sale-

Delivery, partial-Stoppage in transitu
-A sold to B a large lot of wheat,
for which and others he gave his
acceptance. The wheat was in the
custody of a storekeeper. B sold
300 bolls to H, who granted his
acceptance, and obtained a partial
delivery.
B became insolvent,
and on the same day he telegraphed
to H not to accept the draft unless
he had got the wheat. After get-
ting the telegram, H called on A,
and obtained a delivery order, with
the words written across, no sale."
Before delivery was obtained, A
had learned of B's insolvency, and
countermanded the delivery order.
In an action by H for delivery of
the remainder of the wheat-Held
that from the knowledge communi-
cated to H of B's circumstances,
he was in mala fides in applying to
A for the delivery order, and being
so, A was justified in counter-
manding it, and the storekeeper in
refusing delivery,. ....................127
Contract Weights and Measures
Acts. 5 Geo. IV., c. 74-5 and 6
Will. IV., c. 63-What is a Boll?

-

-Wheat and oats were sold in
stack for a slump sum, each stack
being guaranteed to contain a cer-
tain number of "bolls of good kept"
grain. On being thrashed out, a
deficiency was alleged in the num-
ber of bolls in weight-Held (1)
that under the Weights and
Measures Acts, nothing is said of a
boll as a measure, and it is left
uncertain what the weight is; (2)
in Glasgow and neighbourhood, a
boll of thrashed wheat is considered
to be four bushels of 60 lbs., equal
to 240 lbs., and a measured boll of
thrashed corn as six bushels of 40
lbs. each, or 240 lbs.; (3) in Glas-
gow, 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,...158

Sale by Auction—

Re-exposure-Fraud-Damages-At
a roup of farm stock, B having
come forward after a lot of lambs
had been put up and knocked down
to A, and having, in the knowledge
of this, prevailed on the auctioneer
to re-expose them, and on their
being so re-exposed, having offered
for and obtained possession of the
lambs-Held, in an action at the
instance of A against B, that B was
liable in damages to A.

Jus ad rem-jus actionis-Held
by the Sheriff (altering Interlocutor
of Sheriff-Substitute) that A, under
his jus ad rem, was not entitled,
under his action as laid, to decree
against B for delivery of the lambs, 5
Warrandice-Risk-A cow, bought

and delivered on the 6th, died of
"red water" on the 9th. Founding
on warrandice, the purchaser raised
an action for repetition. In defence
it was stated, that if any warran-
dice were given, it was only on the
day of sale and delivery, and did
not extend over the period between
delivery and death. Circumstances
in which defence repelled, and de-
cree given for repetition,.........120
Weight Measure-Breaking bulk-

On a sale of grain, the "out turn"
was guaranteed within one per cent.
measure, weight combined. On sam-
ples being weighed, a deficiency was
found, but the grain was retained
without objection for upwards of a
month; there was also a deficiency
by measure. In an action for the
deficiency-Held that the defenders
were only liable for the deficiency
by measure,
........173
Circumstances in which held that an
animal bought in public market
which had died within sixteen days
thereafter, had not died of any dis-
ease under which it laboured at the
date of the sale, and action for
repetition of the price and loss dis-
missed,
....133
Delivery Moveables Interdict-
Circumstances in which moveables
sold held to have been effectually
delivered, so as to protect the pur-
chase against a poinder, .........156
Salmon Fisheries Act, 25 & 26 Vict., c.
97, sec. 26-Held that, under the
26th section of the Salmon Fisheries
Act of 1861, water bailiffs are entitled
to seize illegal nets used in fishing,
before the person using them has been
convicted,
......147

Sequestration-

-

Competing hypothecs-Sequestration
was executed against a tenant in
February, 1863, for rent due for
the year commencing Whitsunday,
1862. He defended the sequestra-
tion process, which was not dis-
posed of till November, 1863. He
was warned away in April, and
removed at Whitsunday, 1863.
The landlord was not aware of the
removal till June. The effects had
been removed to another house,
occupied by a son of the tenant.
In the sequestration process war-
rant was obtained to bring back
and sell the effects removed.

The

the first deliverance, of which the
usual notices were given, calling on
claimants to lodge their claims one
month prior to 31st October. The
trustee having rejected the claim,
the creditor appealed, but Sheriff
affirmed trustee's deliverance, ...31
Small Debt Act, 1 and 2 Vict., c. 41,
sec. 15-

Decree-Implement-Poinding

exe-

cuted on a small debt decree held
to be implement to the effect of
barring the issue of a sist, .........7
Jurisdiction-Competency-Expenses

-Question-Is it competent to sue
in the Small Debt Court for expen-
ses of an ordinary action where a
decree has been extracted before
taxation of expenses? Circum-
stances in which held competent,
where a party had promised pay.
ment of expenses, and action lost
on the promise,
Shipmaster, powers of-Stores-Home
Port-The master of a barque, having

..........9

new landlord applied for interdict
against the sale. Held, that the
nexus of sequestration rendered the
first landlord's right of hypothec
special that there was no mora—
and that his right was preferable to
the second,
...112
Appeal-Bankruptcy Act, 1856, sec.
43-Mora-Limitation of Actions
--Sheriff Court Act, 16 & 17 Vict.,
c. 80, sec. 15-Falling Asleep of
Actions-In a bankrupt estate a
creditor claimed a preference. His
claim, as such, was rejected by the
trustee, but he was ranked as a
common creditor. The creditor
appealed. After the lapse of two
years, the appeal being undisposed
of, a dividend was declared. The
appeal was then taken up, to which
it was objected that the process
had, co ipso, been dismissed by the
lapse of time prescribed in the
Sheriff Court Act, 1853. Held,
that judicial proceedings in seques-
trations are excluded from the a ship's-husband, ordered stores in a
operation of the Sheriff Court Act home port. The master died, and
by sec. 43 of the Bankruptcy Act, the store merchants raised an action
and that an appeal in a sequestra- against the shipowners for the stores
tion does not fall by the lapse of supplied to the master-Held that it
six months,
.....138
was not proved that the master had
Oath-Alterations on-1. Objection special powers to order goods in a
to oath, on the ground of admitted home port; and that his having done
alteration in essentialibus after its so did not render the owners liable,
being subscribed, and outwith the and action dismissed,
...163
presence of the deponent and magis- Schoolmaster, Free Church-Appoint-
trate, sustained. 2. Objection to ment, terms of-In an action of
oath, ex facie, regular and com- removing against a Free Church
plete on the allegation, which was schoolmaster from his dwelling-house,
denied, of alteration or filling up in in consequence of his previous dis-
essentialibus after the oath was missal, it was pleaded that his
subscribed, and outwith the pre- appointment was ad vitam aut culpam
sence of the deponent and magis-
-Held that, except by special agree-
trate, repelled. 3. Objection to ment, schoolmasters of the Free
oath on the ground of admitted Church do not hold their appoint-
alteration after its being subscribed ments ad vitam aut culpam, and
and outwith the presence of the decerniture pronounced in the re-
deponent and magistrate, but not moving,........
.......108
in essentialibus, and the oath being Specific Appropriation-A debtor re-
complete independently of the al- mitted a sum to his creditor, along
teration, repelled, ..........57 with a statement of account, and
Joint obligants-Ranking for interest stating that the sum sent was to be
-Held, that a creditor who had in full of the account, and if not so
three obligants, conjunctly and accepted, the money was to be re-
severally bound to him by a cash turned. The money was not returned,
credit bond, and who had drawn and an action raised for the balance
from the sequestrated estates of
-Held that there was no specific
the three debtors' dividends, appropriation, and the creditor was in
amounting in all to 16s 9d per titulo to retain the remittance, ...130
pound on the amount of his debt, Slander-Damages-Relevancy-Privi-
with interest till the date of his
sequestration, was not entitled, on
a second dividend at the rate of
98 8d per pound being declared
from the estates of one of those
obligants, to participate in that
dividend to a greater extent than
38 24d per pound, to the effect of
drawing interest on his claim after
the date of sequestration down to
the date of payment, although there
were not funds sufficient to pay the
general body of creditors on that
estate 20s per pound on their debts
as at the date of sequestration, 113
Competition-Trustee-Personal Ob-

.20

jections,
Claims-Bankrupt Act, 19 & 20 Vict.,
c. 79, sec. 133-A dividend was
accelerated on 6th August, to be
paid four months after the date of i

lege-A minister brought an action
of damages against a member of his
church for slander-Held (1) that the
summons was irrelevant, in so far as
the word malicious was omitted, and
the record opened up to have the
word added; (2) communications made
by one member of a church to another
as to the character and conduct of a
candidate for the pastoral charge of a
congregation, are privileged, ......175
Subscription-Receipts-In an action of
count and reckoning, the respondent
produced certain receipts, some of
which were subscribed with the name
of the party receiver, while others
were signed with a mark. The pur-
suer objected to the receipts signed by
a mark, while there was evidence that
the party could subscribe her name.
On a proof, held that the party could