Court for the sum paid to account; and on the other hand, the defender has failed in establishing his allegation that the pursuer was to do the whole business for a sum not exceeding £20: Modifies the defender's expenses to one-half, and allows the taxed amount to be deducted from the sum decerned for by the Interlocutor under review, and appoints an account of the expenses to be given in and taxed by the auditor, and alters the Interlocutor complained of accordingly, and decerns. NOTE.-The Interlocutor now pronounced is pretty nearly the same as the one originally pronounced by the Sheriff-Substitute, which appears to have been subsequently altered into finding the defender liable in expenses, although the reasons assigned for subjecting him in costs are the very reasons why he should get expenses from the pursuer. The sum taxed off the account sued for being above a third of the professional charges, evidently gives the defender a right to his expenses, modified, as above, in respect of his failure to prove the special agreement. In England, an overcharge in an attorney's bill of one-sixth of the account, renders the attorney by statute liable in the costs of the action; and in Scotland it was fixed by the case of Clyne v. Spence, 7th December, 1827, that an overcharge to the extent of a-fifth rendered the agent claiming the account liable in expenses. The pursuer's account for conducting the cessio has been taxed by the auditor on the medium scale, which makes the difference mainly between the sum demanded by the pursuer and the sum allowed by the auditor. It was stated that the debts given up in the cessio were above £13,000, and the assets £900, and in these circumstances the pursuer contended that the suitable scale to adopt was the one for cases above £100, whereas the auditor had adopted the scale from £25 to £100. The auditor held that, as there were no pecuniary conclusions involved in the cessio, the proper scale to adopt was that from £25 to £100, and the Sheriff thinks he was right in doing so. But though this seems to be the right view, yet the matter was one open to difference of opinion. On the other details of the account charged, the Sheriff adheres to the auditor's report; and although he entirely absolves the pursuer from any tortious proceeding in a matter open to difference of opinion, yet, as the opinion formed and acted on by him is contrary to the opinion of the Court, the defender is entitled to modified expenses. The Sheriff would have given the defender twothirds of his costs, as originally awarded by the Sheriff-Substitute, were it not that he has evinced no inclination to pay over what is justly owing, but on the contrary has denied everything he could, and paid the sum decerned for, ad interim, only after an appeal to the Sheriff and the decree was extracted, which evinced a litigious spirit, even in matters beyond reason able dispute.

10TH DECEMBER, 1863.

SHERIFF COURT, LANARKSHIRE-GLASGOW. (MR SHERIFF BELL.)

THE PAISLEY HERITABLE PROPERTY INVESTMENT

SOCIETY V. J.W. GUILD (Henderson's Trustee) & Others. A Building Society raised an action of maills and duties, calling the tenants in the property, certain postponed Bondholders, and the Trustee of members, who had become bankrupt. The pursuers stated their debt to be £2000, no deduction having been given for contributions made by the members, which it was maintained were forfeited in terms of the society's rules-Held by the Sheriff-Substitute, and acquiesced in, that the contributions must go, pro tanto, in payment of the bond, but that the profits accruing on the shares were confiscated; and in respect of the pluris petitio, the pursuers were found liable in half expenses to the defenders.

THE pursuers raised this action of maills and duties against the tenants of the property described in a dis

position in security, in their favour, and produced in process, for payment of the rents of their several houses, and also against certain other defenders for their in

terests.

The only defenders who appeared and stated a defence were Messrs Moody & M'Clure, writers in Glasgow. Their defence was-Preliminary

(1) No title to sue; (2) All the parties interested have not been called. The party Henderson, mentioned in the summons, should have been cited. The party Guild, although elected, has not been confirmed trustee on Henderson's sequestrated estate; (3) The action was incompetent, irrelevant, and unnecessary. Merits-(4) A denial that the defenders are principal debtors in the bond of disposition in security founded on; (5) A denial that the sum concluded for is due under the said bond, and explained that on or about this date, (11th January, 1861), the defenders acquired the subjects in question from the said William Henderson, conform to disposition granted by him in their favour herewith produced, at which date, or shortly thereafter, the said bond and disposition in security had been extinguished to the extent of £1600 or thereby, by payments made by the said William Henderson in name of instalments paid from time to time on eighty shares held by him in the said building society, and it was for the value of said shares advanced to the said William Henderson, amounting to £2000, that the said bond and disposition in security was granted. The defenders have always been willing to receive a transfer of the said shares, and have frequently desired the pursuers or their law agent to prepare the same, but the pursuers, or those acting for them unwarrantably refused to do so, although the defenders had consigned the whole arrears due by the said William Henderson in connection with the said eighty shares. The defenders have all along been and still are willing to pay whatever interest is found to be due under the said bond after applying thereto the sums already paid on account of the said shares; (6) The preliminary pleas are repeated.

The record was then closed on this minute and the summons. On a hearing, the 1st and 3d preliminary pleas were of consent repelled; but the second was sustained, and Henderson was ordained to be called, as a party, by supplementary summons. This was brought and conjoined with the principal summons; but as no appearance was made for him, he was held as confessed. A proof was allowed habili modo of the amount that the bond of disposition, in security for £2000, had been extinguished to the extent of £1600 or thereby, by payments made by Henderson, and the pursuers a conjunct probation. This proof having been led, and parties heard thereon, the Sheriff-Substitute pronounced the following Interlocutor, which has been acquiesced in by the pursuers:

thereafter made avizandum with the whole process, Finds Having heard parties' procurators at several diets, and that this is an action of maills and duties, in which the pursuers conclude against certain defenders for their interest, and also against the tenants of the heritable subjects specified and described in the bond and disposition security No 5-1, in said pursuers' favour, for payment by the said tenants of the rents, maills, and duties of their several possessions, "or at least of so much of the said rents as will satisfy and pay the

pursuers the principal sum of £2000 sterling, interest thereof at the rate of 5 per cent per annum, from and since the 5th August last, 1861, liquidate penalty, and termly failures, all specified and contained in" said bond and disposition in security: Finds that the only parties who have entered appearance as defenders are Moody & M'Clure, writers, and the individual partners of that firm, who acquired the said heritable subjects from the original owner, Henderson, conform to disposition No. 7-1, dated 11th Jan., 1861, being of posterior date to the pursuers' bond No. 5-1, which was granted in October, 1857: Finds that the said defenders deny in their minute of defence that the principal sum of £2000 is due to the pursuers under the bond, and on the contrary, aver that said bond "had been extinguished to the extent of £1600 or thereby, by payments made by Henderson in name of instalments, from time to time on eighty shares held by him" in the pursuers' society: Finds that this averment being denied by the pursuers, the defenders were allowed a proof of it habili modo by the Interlocutor of 26th June 1862: Finds that proof having been led accordingly, and parties heard thereon, a remit was made to an accountant, by Interlocutor of 18th Nov., 1862, to consider the proof and whole productions, and to report what amount of subscriptions had been paid by Henderson, who had become bankrupt, to account of said eighty shares, and also what sum was due to the pursuers by Henderson on the footing of a settlement of accounts taking place on the principle of Rule 26 of the rules and regulations of the pursuers' society, of which No. 6-1 is admittedly a printed copy: Finds that the accountant made under this remit the report No. 16, in which he states-1st, that Henderson had paid as at 5th August, 1861, being the last date of any payment made by him, the sum of £832 as subscriptions towards the eighty shares; and 2d, that the sum payable by him to the pursuers for the redemption of the property contained in the heritable bond was at 3d Feb., 1862, £1162 2s: Finds that, whilst both parties admit that the above report is substantially correct, two questions have been raised by the pursuers, and one by the defenders, which require adjudication before decision can be come to on the merits: Finds that the pursuers contend, in the first place, that the amount of the fort nightly subscriptions paid by Henderson to account of the eighty shares held by him cannot be imputed in extinction pro tanto of the loan of £2000 advanced to him, but might, if not forfeited, be imputed to the acquisition of a certain interest in, or a certain number of shares of, the society, which acquisition might be claimed by the trustee in Henderson's sequestration as an asset of the bankrupt estate, whilst it cannot be founded on by the defenders as in any way affecting the pursuers' right to recover the whole of said loan out of the heritable subjects held in security thereof: Finds, however, that the first and fundamental rule of the pursuers' society, as contained in No. 6-1, is as follows"This society is established under the provisions of the Act of Parliament 6th and 7th Will. IV., cap. 32, for the purpose of raising a stock or fund, by fortnightly payments, of one shilling upon each share, said stock or fund being for the sole purpose of enabling each member to receive out of the funds of the society the amount or value of his share or shares therein on dwelling-houses, or other real or heritable estate, to be secured to the society in the manner mentioned in said Act:" Finds that the regulations which follow the above point out how the shares are to be applied for, and what entry-money and fortnightly subscriptions are to be paid by members, and also what interest is to be paid upon advances in addition to the said fortnightly subscriptions; and then it is provided by rule 34 that, where the sum of £25 for each share has been fully paid up to, and realised by, the society, or its sections, the trustees shall deliver up to the member who has so paid the "title deeds and other documents relating to the particular security or securities granted by such member in favour of the society, and also execute and deliver at the expense of such member all necessary receipts and discharges in their favour, acquitting and discharging them of the advances made to them by the society, and releasing and disburdening the several properties of the respective securities granted over the same:" Finds that it is also provided by Rule 26 that where any member wishes to redeem his property before the whole amount of his shares is paid up, he "shall be allowed to do so on payment, in one or more sums, of the subscriptions and interest that would have become due thereon," thus indicating that the

subscriptions already made to account of the shares were to be taken as payment pro tanto of the loan on the properties: Finds still farther, that it is instructed by the excerpts, No. 12, from the pursuers' ledger, that the pursuers have been in the habit of so dealing with the member's fortnightly subscriptions, seeing that the pursuers state in the entry of said excerpts, under date 4th Feb., 1862, that a bond granted by Henderson for a loan of £1200 had been redeemed by payment of interest thereon and of the said subscriptions; and the same result is brought out in the pursuers' minutes, of date 27th January, 1862, contained in the excerpts No. 8-1, and in the statement No. 7-10, in both of which documents the sum of £1156 17s 3d, is set down as the sum upon the payment of which Henderson would be entitled to a redemption of the property on which the £2000 had been advanced, thereby giving him credit for his fortnightly subscriptions as payment of the balance; therefore finds that the pursuers are in error in their contention that the £832 paid by Henderson in subscriptions did not go towards the extinction of the £2000 loan: Finds that it is contended by the pursuers, in the second place, that having exercised the right of forfeiture against Henderson com. petent to them under the provisions of Rule 25, they are no longer bound to give credit for the said £832 paid by him, even though they had been otherways under any obligation to do so: Finds it instructed by the minute of date 4th March, 1862, in the excerpts No. 8-1, that the pursuers of that date declared, in terms of the said rule, Henderson's "right, title, and interest in the properties on which the said society had made the advances forfeited:" Finds that the words of the rule, in virtue of which the above forfeiture was declared are, "If said interest on the subscriptions remain in arrears for six months, then it shall be in the power of the committee, by a minute under their hand, to forfeit all right, title, and interest which such member has in the property; and such member shall thereupon cease to be a member of the society, and forfeit any privilege or advantage which he might otherways have been entitled to as a member thereof: Finds that there is nothing in these words implying that where a forfeiture is declared, the society is entitled to confiscate the whole subscriptions previously paid by the member, or that they are not bound, on realising the heritable security, to give credit for the amount of such subscriptions: Finds that the said words, if they had been meant to assert for the society an absolute and irredeemable right to said subjects on the above footing, would not have been available in a question with second bondholders or subsequent disponees; but finds that the words were not so meant, as is sufficiently instructed by the first clause of the last sentence of the rule itself, which is--"Should any surplus remain after satisfying the society's claim, the same shall be paid to the member: Finds, therefore, that although by the forfeiture Henderson lost all privileges and advantages to which he was entitled as a member of the society, it had not the effect of reviving to the full amount the original debt of £2000, which had been liquidated to the extent of £832: Finds that it is contended for the defenders that in addition to the said £832 Henderson was entitled to credit for the farther sum of £235 58 of alleged profits due to him as a member of the society; but finds, first, that there is no sufficient evidence of any such sum of profits having arisen; and second, that even if it had, the profits fairly fell under the forfeiture declared against Henderson in consequence of his being more than six months in arrears, seeing that by said forfeiture he was lawfully deprived of any privilege or advantage which he might otherways be entitled to as a member: Therefore finds that the pursuers are not bound to give credit for the profits, if any such existed: Finds, upon the whole, that the pursuers are bound by their own statement, as contained in the said minute of 27th Jan., 1862, and in the document No. 7-10, and that the sum of £1156 17s 3d, being £3 4s 1d less than the sum brought out by the accountant, is the sum now restingowing to them as heritable creditors of Henderson: Finds, therefore, that the conclusions of the summons fall to be restricted accordingly, and decerns against the defenders, the tenants in the subjects, to make payments to the pursuers as libelled, of so much of their rents as will satisfy and pay the said sum of £1156 17s 3d, with interest thereon as libelled, and liquidate penalties and termly failures effeiring thereto: Finds, as regards expenses, that on the one hand there was a large pluris petitio on the part of the pursuers, and, on the other, there was a demand on the part of the defenders for a much larger amount of credit than they have succeeded in

made the pretended purchase by him in the full knowledge of the previous sale to the pursuer: Finds that the said David Fraser at the time, and in the presence of the exposer, of the defender, of the said Alexander Duncan, and of others assembled at the roup, openly and loudly protested against the said re-exposure and pretended sale to the defender: Finds that the said David Fraser, on behalf of the pursuer, tendered payment of the said lambs to the exposer on the first or second day following the roup, while the lambs were still in the possession of the exposer, and demanded delivery of them, but that the same was refused on the ground of the claim made by the defender: Finds in law that the re-exposure and sale of the said lambs to the defender was, in the circumstances, a fraud upon the pursuer: Finds that the said re-exposure and sale was instigated and promoted by the defender, or at least that the defender was a party thereto and acting therein: Finds that the defender, in consequence of the said fraud, in the full knowledge of the same, and in continuance thereof, acquired and took possession of the said lambs, and still retains them: Finds in law that the pursuer has a right of action against all or any of the parties concerned in the said fraud for redress against the same: Finds in law that under the present action the pursuer is entitled, under the findings above set forth, to obtain delivery of the said lambs from the defender, but that the pursuer has not set forth grounds relevant and sufficient to sustain the conclusion for the value thereof, failing his obtaining such delivery, or for loss and damages in the premises: Therefore decerns the defender to deliver and give up to the pursuer, in terms of the conclusion to that effect; quoad ultra, assoilzies the defender from the conclusions of the said summons: Finds the pursuer entitled to his expenses, allows an account thereof to be lodged, and when lodged, remits the same to the auditor of Court to tax and to report, and decerns.

NOTE. The defender maintains three pleas of a dilatory

nature.

The first of these is, that having acquired the lambs at a public roup, having paid the price and obtained delivery, the sale can only be set aside by reduction in the Court of Session. The Sheriff-Substitute is of opinion that such a plea as this is not applicable to a question in regard to moveables, which have not been transferred on any probative or privileged title, more especially where, as in the present instance, the right of the defender has been protested against and challenged all along.

The second dilatory plea of the defender is, that the pursuer having obtained decree against the exposer for delivery of the lambs, is now barred from proceeding against the defender. The lambs, however, being in the possession of the defender, the decree in question has been unavailing; and it is not alleged that the pursuer has been in any way paid or compensated for the loss sustained by him. On that ground, and on the grounds in law stated in the Interlocutor, the defender's second plea has also been repelled.

The third dilatory plea of the defender is, that the judge of the roup having been appointed by the articles of roup to dispose of differences arising at the roup, and having so decided in favour of the defender, it is not competent to review or disturb his decision, which was in favour of the defender, and is final. The provision in the articles of roup is, that the judge should "settle and determine all differences between the exposer and purchaser or purchasers, or between the offerers themselves in relation to the roup." The Sheriff Substitute is of opinion that the provision in question does not apply to such a case as the present. There was no difference as between offerers in the sense of the articles of roup. The bidding, in the first instance, had entirely ceased, and the auctioneer had declared the pursuer to be the purchaser. The duties of both auctioneer and judge in regard to the lambs in question thereupon came to an end; and it is going entirely beyond the scope of the articles of roup to maintain that either the auctioneer or the judge was entitled to undo his own act, to review his own decision, to seize the effects which he had just sold to the pursuer, and to bring parties into the field with whom the pursuer had nothing to do, and with whom he objected to have anything to do on that footing. There was, therefore, no competition within the terms of the articles of roup between the pursuer and the defender. Neither was there any question within the terms of the articles between the exposer and the pursuer. It is not alleged that the exposer denies that the lambs were knocked!

down to the pursuer. The exposer's own testimony to the contrary is in process. If, therefore, the pursuer was the purchaser, he is entitled to the lambs. If he was not the purchaser, he is not within the articles. On the whole of these grounds the Sheriff-Substitute repels this plea also. With regard to the facts of the case, the preponderance of reliable testimony, as well as the whole inferences from the circumstances, are clearly in favour of the pursuer; Leslie, Mantach, and Duncan, who are the leading witnesses for the defender, are not even consistent with each other on various material points.

With regard to the law applicable to the general question on the merits, it is distinctly laid down by Professor Bell, in his Commentaries, vol. i., p. 288, that where a person sells property, and before the purchaser's right is completed, sells it a second time, he commits a fraud upon the original purchaser.

When the second purchaser is a party to the fraud, he puts himself, as regards the original purchaser, under the same liabilities as the seller. This principle was expressed by the Lord Chancellor in the recent case of Cullen v. Thomson's Trustee, 1862-iv. M'Q., p. 432, in which his Lordship laid down that all persons directly concerned in the commission of a fraud are to be treated as principals.

If the defender had not interfered with the pursuer, the pursuer under the jus ad rem vested in him in regard to the lambs in question, and if they had remained in the possession of the seller, would have had a jus actionis against the seller, under which he could have obtained delivery of the lambs from the seller. But the defender having interfered with them, and having by a fraud upon the pursuer, to which the defender was a party, obtained possession of them from the seller, the pursuer, upon the principle above set forth, has the same right of action against the defender as he would otherwise have had against the seller.

No defence has been stated against the present action on the ground that the seller has not been called as a party, but even if there had, the Sheriff-Substitute does not see that it could have been sustained unless in so far as regards his interest in the price of the lambs, as to which, however, no question has been raised.

The pursuer has made no allegation in his condescendence as to the value of the lambs, or as to the quantum of damage occasioned to him by the acts of the defender, and the SheriffSubstitute has therefore been unable to give effect to the alternative conclusion for value and damages.

This Interlocutor was appealed by the defender, and on considering the appeal, Sheriff Bell pronounced the following judgment:

The Sheriff recalls and varies the Interlocutor appealed against: Finds, in point of fact, that, on 19th August, 1861, the two lambs referred to in the summons were exposed for sale by public roup: Finds that, by the articles of roup, Alexander Duncan was "appointed auctioneer and judge of the roup, with power to settle and determine all differences which may arise between the exposer and purchaser or purchasers, or between the offerers themselves in relation to the roup:" Finds that £3 for the lot were offered by David Fraser on the part of the pursuer: Finds that this was higher than any other offer made at the time: Finds that the said lambs were knocked down to the pursuer by Alexander Duncan, the auctioneer and judge of the roup, the pursuer's name entered in the roup roll as purchaser, and the lambs let loose from the circle: Finds that a short time thereafter Alexander Duncan again put up the same lambs for sale a second time, alleging that there had been two equal offers made at the time the lambs were knocked down to the pursuer: Finds that this was a false and a fraudulent statement: Finds that the defender knew it to be false: Finds that the defender was actively concorned in inducing Duncan to put the lambs up a second time for sale, and either himself first suggested or adopted and participated in the proposal to carry that transaction through under the false and fraudulent pretence that there had been two equal offers: Finds that Fraser, for the pursuer, made timeous offer of the price: Finds that James Smith, the owner and exposer of the lambs, refused to deliver them either to the pursuer or defender until the dispute should be settled: Finds that after about two

months the defender, in Smith's absence, got the lambs into his hands without the consent or knowledge, and against the express orders of Smith: Finds no evidence that the lambs were delivered to the defender by any person entitled to act for Smith in such a matter, or by whose actings Smith was bound: In respect of the facts found as above, and also of the reasons assigned by the Sheriff Substitute, and in the annexed Note, repels the whole defences, so far as they are dilatory and applicable to the second alternative conclusion of the summons: Finds, in point of fact, that the first alternative conclusion of the summons requires that the defender be decerned to deliver and give up to the pursuer the two lambs aforesaid: Finds that this conclusion is supported in the condescendence and record, on the alleged ground that the lambs were the property of the pursuer, and upon no other ground distinct or separable therefrom: Finds that the lambs were not delivered to the pursuer, and did not become his property: Therefore assoilzies the defender from the first conclusion of the summons, as explained by the condescendence and pleas in law: Finds it averred in the condescendence that the defender retains the two lambs to the great loss of the pursuer: Finds that he does retain them: Finds that the lambs were worth at least 9s sterling more than the price bidden for them by the pursuer: Finds, in point of law, that the defender is liable in damages to the pursuer, to the amount of 9s sterling, as aforesaid: Finds the defender liable in expenses of process: Allows an account to be lodged and taxed, and decerns.

NOTE. It is painful to have so much litigation about so paltry a matter as the present. But the pursuer may think that he is doing a service to the public. And the defender might have alleged, if he had pleaded his cause differently, that his character was at stake. But he has utterly shut himself out from any such explanation. If his object had been to vindicate his character, he could only do so by courting inquiry. And the ground he takes is that no inquiry is competent in this process, or in any court. He desires to rest on what he calls the final decision of the auctioneer, and to shut out all investigation of the fraud alleged against both the auctioneer and himself.

The Sheriff-Substitute, however, has rightly decided that the action is not excluded by the proceedings of the auctioneer. He had power to decide disputes between the exposer and bidders, or between the bidders. But his powers with respect to the two lambs in question were finally exhausted when he knocked them down to the pursuer, and had them entered as his in the roup roll. That was his final decision. He had no power at all to review it. He had nothing further to do with the lambs. He was empowered to sell them, but not to sell them twice over. His putting them up to sale a second time was not a decision at all, not even in point of form. There was no dispute in existence to be decided at the time he did so. It was not even alleged that two offers had been actually made; and his putting them up a second time was not even in point of form a judgment or decision between two offerers. It was a lawless and fraudulent proceeding, in which he acted as auctioneer, and not as judge at all.

The Sheriff-Substitute is further right in the views which he has taken generally of the evidence and the facts thereby established. This is eminently a case where testimonies are to be weighed, not counted. But there is very little difficulty in seeing which are to be believed, and which received with qualifications.

It is no defence that in an action against James Smith the pursuer alleged fraud on the part of the auctioneer. It is proved that both the auctioneer and the defender were concerned in fraudulent proceedings. And the averment in the previous action that one of them was so concerned, is no admission that the other was not.

Although the pursuer holds a decree for delivery against Smith, it is not for the defender to plead that the pursuer's

is no necessity for an action of reduction in the Supreme Court. The defender procured an apparent sale to be made to him on fraudulent pretences by an auctioneer whose powers were exhausted, and who acted in bad faith; and he thereafter did not obtain legal delivery, but got the lambs into his hands by a trick. There is nothing here that requires to be solemnly reduced.

In short, the Sheriff agrees with the Sheriff-Substitute in almost every particular.

But he doubts whether the pursuer has a direct action for delivery, as his action is laid in the present record. The pursuer did not obtain delivery. The property, therefore, did not pass to him. He acquired no jus in re. His right was to demand that the exposer should deliver the lambs on receiving payment of the price. This was a right as against Smith, arising ex contractu. With the defender there was no privity of contract. Against him the pursuer had no right ex contractu. Whether he would have had any right to demand actual delivery from the defender if he had pleaded such a right as arising out of the decree which he, the pursuer, holds against Smith, the exposer, or as arising ex delicto, or quasi ex delicto, the Sheriff declines to form any opinion. Those questions are not raised by this record. No such right has been intelligibly pleaded. The pursuer rests his claim for delivery by the defender, not on the decree against Smith; not on contract with the defender, or on delict or quasi delict, but upon completed property jus in re, which clearly he has not.

The case of Cullen v. Thomson's Trustee, 1862, M'Queen, iv., p. 432, referred to by the Sheriff-Substitute, shows that participation in fraud subjects the participator to such an action as was there under judgment. But it does not show that participation in fraud, such as here occurs, has the effect of transferring the actual property of things sold to the purchaser without delivery, or gives him a vindicatio rei, or a direct action for delivery in a process expressly laid upon averments of jus in re.

The usual grounds upon which action for delivery of goods is maintained are either contract, or property, or possession, or delict, or quasi delict, combined with property or possession. In this way either contract, or property, or possession, is in general an element of the media concludendi. Here, however, it is not averred that the pursuer had any contract with the defender, or that he was in possession of the lambs; and it is clear they were not his property. The Sheriff does not decide that there are no other grounds upon which a direct action for delivery can be maintained; but if there are, the legal grounds, the propositions in law, upon which this is to be done, must at least be stated, and the pursuer has stated no propositions in law to support his demand for delivery, but such as assert a full and complete jus in re, which clearly he had not.

The pursuer, however, has a clear right to reparation of the loss arising from the delict of Duncan and the defender. And no doubt delivery of the lambs would be a species of repara tion. But as the action is laid, it would be something more. If the pursuer obtained delivery by way of reparation under this summous, and there were no further judicial or extrajudicial proceeding, he would not only have the lambs, but their price also. Besides, in that part of the summons which concludes for reparation, it is not delivery of the lambs but an equivalent in money for the loss sustained that is sought. And in dealing with this, it is enough that the 6th article of the condescendence avers that the proceedings narrated resulted in the great loss of the pursuer, while this loss is proved to the amount of at least nine shillings sterling. Act. GRANT AND JAMESON. Alt. ALEX. FORBES.

18TH DECEMBER, 1863,

to the decree against Smith becoming operative; and he cannot both say I will hold the lambs, and make it impossible for Smith to deliver them to the pursuer, and yet at the same time maintain that the pursuer has no action against himself, because he has got a decree against Smith which the defender persists in making it impossible for Smith to obtemper.

(SHERIFFS BELL AND SMITH.)

JAMES FRENCH v. JARVIE AND SMITH.

WM. ROBERTSON v. D. MILLAR.