paid the bankrupt as the consideration for the deeds granted the following circumstances:-The pursuer is said to be by the latter, is in the circumstances incredible and contra- due the sequestrated estate of a grocer in Auchinleck the dictory: Therefore, and for the reasons stated by the Sheriff- | Substitute, dismisses the appeal, and adheres to the Inter- sum of thirty-one shillings. This he refused to pay, and locutor appealed against. M'Gavin (who was trustee on the estate) obtained decree in absence for the amount at the Small Debt Court at Cumnock. Upon this a charge of payment followed, and subsequently a poinding, but no sale. At this point an action of reduction was brought, upon the ground that the pursuer had not been cited to attend the Court on the day decree was taken against him. This the defenders (Cooper being the officer who acted in the matter) totally deniel, and they pleaded in limine that the pursuer had not exhausted his remedy in the inferior Court, and that even although he had, the Court of Session was not the proper appellate tribunal, but the High Court of Justiciary. They urged (1) That as the pursuer had not applied for a rehearing in terms of the Act, and within the period specified therein, any inquiry into the merits was now excluded. (2) That as the High Court of Justiciary was the appellate tribunal provided by the Act, and as every form of application to the Court of Session for the review of small debt decrees was excluded, the action was incompetent. (3) That as there was no averment in the summons relevant to entitle the pursuer to reduction or damages, or review by any mode or process whatever, the action was groundless.

1

NOTE. The bank stock which the witness, Dr Cullen, first stated was the main source from which he got the bulk of the £900, said to have been lent by him to Mrs Gilmour, is proved not to have been got by him till two months after the date of the alleged loan, and the same remark applies to the £298 said at first to have been got from a party in Airdrie. This is admitted by the doctor on his second examination as a witness for the defender, and it related to a transaction of some magnitude which had occurred only twelve months before. The account next given of the acquisition of the money by the doctor, from whom it is said to have been borrowed, is for the most part incredible or unvouched. It is rather a singular story that a medical man, such as Dr Cullen, practising in Airdrie, whose income from all sources, as he himself says, was £800 a year or so, should have got £298 from one patient, and £80 from another, and the fact of his account with the bank being overdrawn to the extent of above £200, and trifling sums of from £5 to £15 being paid in and drawn out at different times, is not very consistent with his having no less a sum than £900 hoarded up, and laid past in the house, or of such a sum having been realised in two years out of an income from all sources of only £800 a year. He had at this time borrowed £1200 on the security of his property building in Airdrie, which was worth perhaps £1800. After giving the doctor full credit for the desire to conceal the amount of his funds, in order to save them from the danger of being swept away by his liabilities on account of the coal and iron company with which he was connected, it is difficult to see how, in his circumstances, he could have £900 lying past him in the house, the more especially as the buildings finished in May, 1861, belonging to the doctor, had cost, including the price of the ground, £1500. It was shortly after this that the loan to Mrs Gilmour is said to have taken place; and the £1200 borrowed on the buildings could not repay the cost of its erection and purchase. It is proved by Mr Heudrie, the doctor's partner in the iron concern, that the doctor's share of the losses of the company was one-third of £1700, or £560, and that he was let off for £450, on the assurance from him that he could pay no more in May, 1860, a year before the date of the alleged loan of the £900, and he got a discharge in full from the company for that sum. The story, too, of the NOTE. In the circumstances in which this action of reducalleged payment of the money to James Gilmour on the tion of a small debt decree pronounced under the authority of Saturday night immediately before he absconded, is also the Sheriff Court Small Debt Act, 1st Vict., cap. 41, has been highly incredible, and inconsistent in many particulars. On brought, the pursuer might have had his remedy by obtaining the whole, it is impossible, in the circumstances, to hold that a rehearing in terms of sect. 16, or by appeal to the Circuit the bona fides and onerous character of the transaction under Courts in terms of sect. 31 of the Act. He did not, however, challenge has been established, and as the onus lay on the avail himself of these statutory modes of redress; and it defender to do this, in order to elide the interference from the appears to the Lord Ordinary that by sect. 30 of the Act he insolvency of the bankrupt and the deeds being reducible, is not entitled to maintain the present action. See the case under the Act 1621, the Interlocutor of the Sheriff-Substitute of Crombie v. M'Ewan, 17th January, 1861, 23 D. 333, and the other cases there cited.

must be adhered to.

Act. T. G. WRIGHT.

Alt. W. BELL LEECH.

1ST APRIL, 1864.

SHERIFF COURT, AYRSHIRE-CUMNOCK.

SMITH v. M'GAVIN AND COOPER.

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.

This was an action of reduction and damages raised in

Lord Ormidale issued the following Interlocutor, giving effect to the defence, and dismissing the action with expenses:—

The Lord Ordinary having heard the counsel for the parties, and considered the argument, sustains the two first pleas in law stated for the defenders in their preliminary defences, and in respect thereof dismisses the action, and decerns: Finds the defenders entitled to expenses, allows them to lodge an account thereof, and remits it when lodged to the auditor to tax and report.

It was admitted by the pursuer, and is clear from the sum mons, that he has no case for damages in respect of irregular diligence, so long as the small debt decree complained of stands unreduced; his claim for damages being wholly depen dent on the validity or invalidity of the decree.

Counsel for the pursuer-MR JOHN HUNTER. AgentsMORTON, WHITEHEAD, GREIG, W. S., AND JAMES MEIKLE, Writer, Kilmarnock.

Counsel for the defenders-MR DUNDAS GRANT. AgentsJOHN ROBERTSON, Jun., S.S.C., and A. M'CLYMONT, Writer, Cumnock.

This action of reduction and damages came to depend before Lord Ormidale, Ordinary, and we report it here because the judgment having been acquiesced in no report of it has appeared elsewhere, and it is of considerable importance under the Small Debt Acts.

4TH APRIL, 1864. SHERIFF COURT OF ELGINSHIRE. (MR SHERIFF MACLEOD SMITH).

THE COUNTY PRISON BOARD OF ELGIN-Petitioners. Prison's 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.

the letter, because that would have been contrary to the Post Office Acts; and as acting for the company he could not involve them in an illegal transaction.

THE facts of the case will be gathered from the Sheriff's decision:

This action concludes for the sum of 15s as damages sus. tained by the pursuer in consequence of the failure of the defenders, or their servants, to deliver a letter containing 120 penny postage stamps addressed, "An order for goods per railway, (to) Mr W. Russell, bookseller, Aberdeen," and delivered by the pursuer to the defenders, at Stonehaven station, on 23d Jan., 1864. The 15s claimed as damages is made up of 10s as the value of the postage stamps, and 5s as compensation for loss in consequence of the non-arrival of the goods which were ordered.

The facts so far as not admitting of dispute are these:-The pursuer's son took the letter containing the order and the stamps to the Stonehaven Railway Station, and gave it to the platform porter, who then put it among the private letters of the company to be carried and delivered along with them in Aberdeen. When the train by which it was to be forwarded, came to the station, the same porter took the letters for the north, (without, however, particularly observing whether the pursuer's letter was still among them), and placed them loose on the floor of the luggage van; and this is all that can be learned of its history.

THE Elgin County Prison Board, as administrators of the prison of Elgin, presented a petition stating that David Macintosh, a prisoner in the said prison, under a sentence of three months' imprisonment for the crime of falsehood, fraud, and wilful imposition, was afflicted with small-pox; that the same was a virulent and contagious disease, which rendered the removal of the said David Macintosh necessary for the health of the other inmates of the prison; and craving warrant, in terms of sec. 72 of the Act, for Mackintosh's removal to a public hospital. So far the parties are substantially agreed. They differ on A certificate by two medical practitioners, in the terms a very material point. The pursuer alleges that it is the required by the Act, was presented along with the peti-practice of the defenders to carry and deliver all letters, such tion. The Sheriff-Substitute thereupon granted the as that which he sent; and he says that they carry them following warrant:gratuitously, being content to do so in consideratoin of the profit which they draw from the carriage of the goods afterThe Sheriff Substitute having considered the foregoing peti-wards sent by them. This is a very important averment, and tion, with the certificate therewith produced, ordains David had it been proved would possibly have changed my view of Macintosh, mentioned in said petition, to be forthwith removed, tice of carrying letters for the public of any kind, and as the But the defenders deny that they are in the prac under the charge of William Hay, chief constable of Elginshire, from the prison of Elgin, and conveyed to Gray's Hos- pursuer led no proof of his assertion, it must be assumed to be pital, in Elgin, in order that he may be treated therein until groundless. he, the said David Macintosh, be again fitted to be recommitted to the said prison, to undergo the expiry of his sentence, without danger to the health of the other inmates, or until he shall be otherwise dealt with in due course of law: Appoints the said William Hay to take such steps as shall be necessary for the safe custody of the said David Macintosh until he shall be so recommitted or otherwise dealt with, as aforesaid: Ordains the petitioners to cause the said David Macintosh to be visited from time to time by the surgeon of the prison, and to cause the said surgeon to report to them when the said David Macintosh shall be fit to be recommitted to the said prison to undergo the expiry of his sentence with out danger to the health of the other inmates of the prison; and on such report being made, ordains the petitioners to cause the said David Macintosh to be recommitted accordingly, in terms of the original sentence, and for these purposes grants

warrant to all concerned.

Agents for the Prison Board-GRANT & JAMIESON.

4TH APRIL, 1864.

SHERIFF COURT, KINCARDINESHIRE—

STONEHAVEN.

(MR SHERIFF DOVE WILSON.)

DUNCAN v. SCOTTISH NORTH-EASTERN RAILWAY CO. Railway Company - 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

this case.

On the admitted facts of the case, I am of opinion that the defenders are not liable in the damages claimed. I think there was no contract between them and the pursuer to carry and deliver the letter in question, and I arrive at this opinion on the ground that it was beyond the powers of the railway Had porter to enter into any such contract on their behalf. the letter been an article which it was part of their duty to carry, within the scope of their ordinary business, I do not at all mean to dispute that the porter may not have been a proper person to receive it, or to say that it is necessary that a parcel should always be placed in the hands of an agent or other superior officer of a company, or still less to say that a servants to book an article duly placed in their hands. company would escape responsibility by the neglect of their peculiarity of the present case is that the letter was not an article which the defenders as common carriers were bound to carry, but was an article which they were actually prohibited from carrying. By the Act 1 Vict., c. 33, sect. 2, all carriers are expressly forbidden to carry letters, and though I find an exemption in favour of letters sent along with goods, I have not been able to find any exemption, such as was alleged at the bar to exist, in favour of orders sent for goods; and by the Act 1 Vict., c. 36, sect. 2, a penalty of £5 each is imposed upon the sender and the carrier of an unexempted letter carried otherwise than by post.

The

The carriage, then, of this letter by railway was illegal, and though I do not dispute that the porter may have had power to receive ordinary parcels on behalf of the defenders, I am very clearly of opinion that he had no authority to receive on their behalf an article which was to involve them in an illegal contract, and possibly subject them to a pecuniary penalty. Taking the widest possible view of the implied mandate which cannot be extended so as to cover transactions which cannot a servant of a railway company has to bind his employers, it be fairly brought within the ordinary line of his duties; and it is quite impossible to hold that this porter had power to bind his employers in such a transaction as the present, for that would just be to infer from his power to act for them in his ordinary and lawful duties, a power to bind them in unusual and illegal transactions. If the carriage of the letter

had been undertaken by an officer of the company, such as a station agent, who may be said to represent the company at his particular station, or if the pursuer had proved his assertion that the company were in the habit of carrying such letters, the case might have been different, but, looking on the transaction as it actually occurred, I think it plain that the receipt of this letter by the railway porter did not raise a contract by the defenders to the pursuer, that they would carry and deliver it. And if there be no contract, there is an end of this case, for no other ground has been stated on which the defenders can be rendered liable.

The result of this opinion is, that the defenders must be assoilzied, but as the action has been in some measure occasioned by the fault of their servant, expenses will not be allowed.

STATE FIRE INSURANCE COMPANY, v. SHERIFFS. Discharge-Interest.-Circumstances in which held that the discharging of a sum without preserving a claim for interest thereon had the effect of discharging the interest, if such was due.

IN June, 1861, the pursuers raised an action against the defender, on the allegation that he held 400 shares of their company, concluding for £100 as a deposit of 5s per share, and £100 as a call of 5s per share, with interest on each. The defender denied that he was a shareholder; but in the course of the action he paid the pursuer's official manager the amount of the deposit, and also the amount of the call, with interest on the latter. He also paid £9 as costs of the action. The official manager granted him a receipt for £208 15s "for amount of deposit and call of 5s per share, and interest on call to 2d October, 1862, in respect of shares for which he is alleged to be a shareholder, and also the sum of nine pounds, the ascertained costs of the proceedings against him in Scotland for recovery of the before-mentioned sums." Nothing was said in the receipt about interest on the deposit. Thereafter six months clapsed without

any steps being taken in the process, and it thus stood dismissed. The official manager then raised the present action for the interest on the deposit, on the allegation that it had been omitted to be charged in taking payment of the deposit. Several defences were maintained by the defender, and, among others, that no interest was due on the deposit, either at common law, under the company's contract, or under the Joint Stock Company's Act, and that even if due it was impliedly discharged by the pursuers taking payment of the deposit without any reservation of the claim for interest, the more especially as after the principal sums sued for in the former action were paid, no further steps were taken therein, and the same stood dismissed.

On appeal, the Sheriff pronounced the following judgment:

Having considered the appeal for the pursuers, with the process, and heard parties, recalls the Interlocutor appealed against, in so far as it sustains the defences; sustains the defender's third plea in law; quoad ultra adheres to the Interlocutor appealed against: Finds the defender entitled to additional expenses, and decerns.

NOTE. There are points of defence in this case into which the Sheriff does not think it necessary to enter. He decides the case on this ground—that the defender has already paid all that the pursuer thought fit to demand from him.

In October, 1860, the defender was officially informed by the company that the amount of his debt was £100 as deposit and £100 as call, and no demand was then made for interest either on the deposit or call. The "total amount" due to the company was then stated as £200; thereafter, in June, 1861, an action was raised for payment of these two sums of £100 each, and concluding also for interest on both. After some procedure in that action, the defender paid, in November, 1862, the sum of £217 15s. what that sum was composed. There was £100 deposit, £100 It is important to observe of for call, £8 15s for interest on call up to 2d October, 1862, and £9 for ascertained costs of proceedings in Scotland. It is plain that thus the whole alleged liability of the defender (with the exception of the special reservation at the end of the receipt) was concluded. It is now pretended that it was not observed by the official manager that interest was not calcu lated on the deposit, and that he did not advert to the fact that interest was due. This proposition is clearly untenable, and is shown to be so by the terms of the receipt; what was dealt with by the parties was the demand under the action. In that action interest on the deposit was concluded for, and the defender brought the case to an end by agreeing to pay the principal sums, and interest on the call with the costs of

the action.

Whether interest on the deposit was due or not it will not do to pretend now that the question of interest on the deposit was not in view of the parties, and that the defender did not, by his payment then made, satisfy the whole claim against

him.

Act. ROBERT ADAM. Alt. JAMES AND GEORGE COLLIE.

15TH APRIL, 1864.

STEWARD COURT, KIRKCUDBRIGHT. (STEWARDS HECTOR AND DUNBAR.)

ELIZABETH HORNEL v. WILLIAM CRAIG.

Filiation-Payments previous to birth-Donation.— Circumstances in which held that payments made by a putative father to the mother of the child previous to its birth were not to be held as payments made towards its aliment, but as donations.

THE pursuer raised this action for aliment of an illegiti mate child, of which the defender was alleged to be the father. The paternity was admitted in the record, and the only question which remained was the amount of aliment, and whether certain payments made by the defender to the pursuer, previous to the birth of the child, were to be imputed towards the aliment, or to be held as a donation, or given under certain conditions, to be fulfilled by the pursuer. The Steward-Substitute proThe Sheriff-Substitute pronounced the following Inter-nounced the following Interlocutor:locutor:

Having heard parties' procurators, sustains the defences, assoilzies the defender from the conclusions of the libel: Finds the defender entitled to expenses of process, allows an account, etc., and decerns,

Having considered the record and productions, Finds that the pursuer was servant to the defender, who is tenant of the farm of Milnthird, from Martinmas, 1861, till Martinmas, 1862: Finds that during that period the defender had, on several occasions, carnal connection with the pursuer, which