1851, of the whole game and shooting of every description in and upon the lands of Dallas, "with the exclusive right of burning heather on such parts of the moors as the tenant may think proper:" Finds that the other petitioner, Augustus King George, claims to be associated with the said Brownlow North in his rights under the said lease: Finds that the respondent is tenant of the farm of Auchness, and that the said farm forms part of the lands of Dallas: Finds that it is alleged by the petitioners that, on various occasions on and about the 23d day of March, 1863, the respondent, without authority from the petitioners, or either of them, burnt, or caused to be burnt, portions of heather on the moors of Dallas, in disregard and violation of their rights, and that he refused, or at least did not desist from burning heather as aforesaid, when called upon to do so: Finds that, upon the grounds so alleged, the petitioners craved interdict against the respondent from burning any heather upon the lands and estate of Dallas, and shootings thereof, during the currency of the petitioners' lease: Finds that it is not proved that the respondent burnt, or caused to be burnt, any heather upon the moors of Dallas, and refused, or did not desist from burning heather thereon when called upon to do so: Therefore recalls the interim interdict granted on the 27th March, 1863: Dismisses the action: Finds the respondent 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 report, and decerns.

NOTE.-The Sheriff-Substitute has all along entertained grave doubts whether the claim of the petitioners to the exclusive right of burning heather, assuming the lease between them and the landlord to be a good one, gives them any direct right of action in the Sheriff Court against a third party in the position of the respondent, and between whom and the petitioners there is not alleged to be any privity of contract as to any details or particulars not manifested by visible and continuous possession. A right, such as is claimed by the petitioners, of burning heather on ground of which the actual tenancy and occupancy is vested in the respondent, is not capable of being so manifested, and it is therefore difficult to see how the respondent can be held to be a party to it as regards the petitioners, unless he became so by express contract on his own part, or under reservation from him in favour of the landlord, assigned by the landlord to the petitioners, and the assignation of which has been formally intimated to him. Nothing of this kind, however, is alleged by the petitioners. The importance of the tenant or other grantee of the landlord being made a party to such a contract as the petitioners found upon, will at once appear when it is taken into view that the rights arising between a landlord and tenant under a current lease of shootings are merely personal, that no effectual jus in re is constituted on behalf of the tenant, and that in the event of the lands over which such a lease is granted being sold or disposed of, without reference to the lease of the shootings, and without previous knowledge of its terms by or intimation of them to the purchaser, there would be no valid claim by the lessee against the purchaser, either for the continuance of the lease until its expiry, or for damages in lieu of it. In the same way, without a legal privity of contract being set forth and established between the petitioners and the respondent, it is difficult to see how the action could have been maintained against him if it had been objected to on that ground. The title to pursue an interdict must be at least as good as would be necessary to maintain an action of damages, and it appears very doubtful how far the title set forth by the petitioners in the present action would sustain an action of damages against the respondent for burning heather on his own farm-the right to burn heather being a right which, apart from special contract, pertains more naturally to the pastoral and agricultural than to the sporting tenancy. But the respondent has not thought proper to state any objections on this ground to the title of petitioners to sue in the action, and the Sheriff-Substitute therefore does not think it necessary, considering the view he has formed of the case otherwise, to express any concluded opinion upon this point.

The respondent has stated in the closed record some pleas against the validity of Mr North's title, as between him and the proprietor of the lands and shootings of Dallas, but at the oral debate, he expressly stated that he passed from these pleas, and both parties thereupon took up the discussion of the case upon the merits.

The respondent is charged with having set fire to seventeen separate spots or patches of moor ground on the moors of Dallas. These spots or patches are all shown upon the hand sketch, No. 6/4 of process, and the extent of the whole of them is between 8 and 9 acres.

The respondent admits that he set fire to ten of the spots or patches of ground shown on the sketch, but he denies that the ground of any of these spots or patches forms any part of the moors of Dallas. These ten spots are coloured red on the sketch referred to, and the extent of them, altogether, is only 3 roods and 24 perches.

Before going further into the case, it falls to be determined whether or not the ten spots so burned, or any of them, form part of the moors of Dallas in the sense of Mr North's lease. The petitioners brought forward as witnesses on their side a small but able corps of experts, who swore that, in their opinion, the ground in question was moor ground, while on the other side, the respondent adduced a numerous and not less skilful array of sportsmen, factors, and practical men, who, with almost equal unanimity, gave their opinion that the ground in question was not moor ground. The Sheriff-Substitute has no doubt that as many more witnesses on either side as might be wanted could have been got, as the matter is by no means free from difficulty, and might be open to a great variety of opinions given in perfect good faith, but perhaps formed with less caution than was ultimately exercised by the gamekeeper of Cawdor, who, after defining a moor to be what he called the "principal hill," and finding this proposi tion to be untenable, expressed his desire to "know what a moor was considered to be," before answering any more puzzling questions upon the point. Testimonia ponderanda sunt non numeranda, however, and it is necessary to be guided rather by the facts on which so many opposite opinions have been founded, than by the opinions themselves.

The arable land in the respondent's occupancy appears, from the sketches produced by both parties, to consist of a series of small fields of very irregular size and shape, situated along both banks of a small burn, and extending in a westerly direction from the farm houses of Auchness, but not for any great distance. The series of fields are not contiguous. Each field is for the most part separated from the next field by broken ground intervening, part of which has never been cultivated, and part of which has been so to a limited extent. There is, unfortunately, no scale given with the sketches, but judging by the eye, the proportion of uncultivated ground mixed with cultivated ground within lines traced along the outside edges of the arable fields on both sides of the burn, may be about half-and-half. The broken ground intervening between the arable fields is partly covered with clumps of whins, partly with star grass, and partly with heather. Some of the whins are the produce of seed sown by the respondent since his entry to the farm, which was in 1841, although his present lease dates only from 1859. There is a farm road running through the series of fields which have been described, and very nearly in a course parallel to that of the burn which they flank.

The whole of the ten spots admitted to have been burnt by the respondent are closely adjacent to the fields, to the burn, and to the road. In most instances they are between the two latter, and in some instances they are so in places where the intermediate space cannot at the utmost exceed a few yards. The average extent of each of the spots so burnt is somewhat less than the tenth part of an acre.

The Sheriff-Substitute is of opinion that spots of ground of the nature which has been described, which are so closely mixed up with the respondent's arable land, and which are within a few hundred yards of his homestead, can never be held to be part of the moors of Dallas in the sense of the petitioners' lease. The petitioners' right of burning under that lease, it will be observed, is not co-extensive with their right of shooting. The right of burning is limited to the moors of Dallas. The right of shooting extends over the whole lands of Dallas. It is not enough, therefore, to make grounds in any part of the estate of Dallas fall within the petitioners' privilege of burning, that such ground be in a state of nature, and covered with heather. It must be shown to form part of the "moors," as that term is used in ordinary, in sporting, and in legislative language. In ordinary and sporting language, no man walking over such ground as has just been described, would be spoken of as being on the "moors." Ground is not necessarily either a moor or part of a moor,

although it may be of the description of ground known as moor ground. There might, for example, be a few acres of moor ground in the centre of an arable farm; but such ground would never be spoken of as a moor or even as part of a moor. Again, in legislative language, such as is used in Act 13, Geo. III., chap. 54, for the preservation of game, it is plain from the whole scope of the provisions as to burning "muirs," that the "muirs" treated of are mainly the nesting and the breeding ground of the muir-fowl. The present ground which, as has been shown, is situated within the limits of the industrial occupancy of the respondent, is not alleged to be nesting or breeding ground, and it appears to the Sheriff-Substitute that the burning for agricultural or pastoral purposes, which are the paramount uses of the ground, or even the burning for other purposes of a few small spots of such ground--the fire from which either could not spread or was prevented from spreading-cannot be held to have been either what is known as muirburn, or to have formed any substantial infringement of the rights claimed by the petitioners.

It was scarcely maintained by the petitioners that they could found much complaint on the burnings at the red spots numbered 1 to 9, both inclusive, but they contended very strongly that the fire at the red spot No. 10, which is not the largest of the ten spots, however, and which indeed cannot exceed a few yards in extent, was upon the moors of Dallas; that the respondent put, and left, that spot on fire, and that the fire was extinguished by the petitioners' gamekeeper, John Howieson. The description, however, which has just been given of the ground generally, includes the spot at No. 10, and it is unnecessary on that point to repeat the remarks which have been already made, but it may be mentioned that it has arable ground almost immediately outside of it; and, in addition, that the ground of the spot No. 10, was itself at one time, perhaps even so recently as the date of the petitioners' lease, arable ground, although it has since been allowed by the respondent to revert into natural grass and heath. With regard to the statement by Howieson, that the ground at No. 10 was left on fire by the respondent, and extinguished by him (Howieson), it is contradicted both by the respondent and by his son, the latter of whom was present along with his father, and both of whom say that they waited until the fire was out before leaving the ground.

The other seven spots which were burnt are coloured blue upon the hand sketch which has been already referred to. The petitioners allege that these also were set fire to by the respondent; but he denies having done so. The whole evidence adduced by the petitioners on this subject consists of the testimony of the witness John M'Intosh, who states that he saw the respondent set fire to the blue spots No. 5, 6, and 7; and of John Howieson, already mentioned, who states that the respondent admitted to him that he had set fire to the blue spot No. 3. These are merely individual statements in regard to separate occasions, which, without considerable corroboration, cannot be held to overbalance the denial of the respondent. They are not so corroborated in any way. So far, indeed, from being corroborated, great doubt is thrown upon the statement of M'Intosh by the testimony of the witness Alexander M'Lennan, who was, as well as M'Intosh, formerly a farm-servant on the respondent's farm, and who says that he saw M'Intosh himself set fire to one of the blue spots, and that the respondent came up and was angry with him for doing so. M'Lennan adds that on another day, when the respondent was from home, M'Intosh took matches and said that he was going to set fire to some more. The SheriffSubstitute is disposed to place considerable reliance on this evidence of M'Lennan, seeing that previously to his examination he had gone through what some people would consider rather a severe ordeal on the subject. It appears that one night since the present action was raised, he was brought by the other witness John Howieson to the house of his brother David Howieson, another servant of the petitioners, where he says that the Howiesons, animated no doubt by ardent zeal to discover the truth on behalf of their masters, gave him no less than "five glasses of whisky that he minds of," besides what he may have got that he does not mind of. In short, he appears to have been put into such a condition that, if he knew anything to the respondent's prejudice, he would probably have disclosed it, and, not having done so, so far as appears from the evidence, it is a fair inference that he had nothing to disclose. Keeping in view the incidents just mentioned-keeping also in view that an important part of

the statement of John Howieson, as to the extinction of the fire at No. 10, has been contradicted, as already noticed, and the general tone of Howieson's evidence; his unsupported statement as to the burning of the blue spot No. 3, must, as well as M'Intosh's, in regard to the other blue spots, be held to come far short of legal proof. There being, therefore, no legal proof that the respondent burnt any part of the ground shown by the blue spots on the sketch, it is unnecessary to consider specially whether or not any of those spots form part of the moors in question.

It appears that the respondent, in building a sheep fank, cleared and burnt some heather upon the ground of the fank. This is admitted by the respondent. There is no proof, however, that he burnt more than was necessary for the site of his fank. The situation of the fank is not shown on the sketch; but with regard to the present question, the Sheriff. Substitute does not think that it is of the least consequence where it is situated. He is satisfied that the clearing of the ground by burning, or otherwise, for the purpose of erecting a fank or other enclosure, permitted, or at least not prevented by the landlord, and where the fire is not shown to have extended beyond what was necessary for the site of the enclo sure, cannot be held to be burning of the moors in the sense of the petitioners' lease.

The Sheriff Substitute has not thought it necessary to take any special notice of certain reservations alleged in the record to have been made in favour of the landlord in the lease between him and the respondent. These reservations contain no reference to the petitioners; and it is not shown that the petitioners are connected with them in any way, or that any party other than the landlord has any right to insist against the respondent in regard to their observance.

Neither has the Sheriff-Substitute made any special or separate allusion to the petitioner Mr George, as his rights are admitted to be wholly contingent on those of Mr North.

In order to warrant a continuance of the interim interdict, it would require to have been shown either that the respon dent committed an illegal act in such circumstances as to excite apprehension of its renewal or repetition, or that he threatened to commit an illegal act. In the opinion of the Sheriff-Substitute, the petitioners have entirely failed to show or to prove the former. They have not even alleged the latter; and the respondent, so far from exhibiting any desire to do any act prejudicial to the claims of the petitioners, did not even move, as he might have done at a much earlier stage of the cause, for the recall of the interim interdict granted against him in the first instance, and which is now held to have been groundless.

Another consideration, even if there had been grounds for granting an interdict, is the difficulty of applying such a process to a subject so undefined in point of boundaries as the 'moors of Dallas," to which the petitioners now state that they restrict their claim for interdict, appears to be. The terms of an interdict-the breach of which involves penal as well as civil consequences-should always be so expressed that there should be no room for ambiguity as to the subject to which it is intended to be applicable. A man should have the means of knowing at the time, without doubt or difficulty, the limits of observance or violation of such a warrant, not merely as matter of opinion, but as matter of fact. If cir cumstances do not admit of the terms of an interdict being so expressed, parties must rely on the other, and more ordinary remedies of the law in event of any infringement of their rights. Act. ALEX. CAMERON. Alt. GREGOR & YOUNG. This case has been appealed.

19TH APRIL, 1864.

SHERIFF COURT, AYRSHIRE-AYR. (SHERIFFS CAMPBELL AND ROBISON).

JAMES PARK V. GEO. BARROWMAN AND JAS. MURDOCH. Damages-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 dangerous, he continued to work under it and was injured. In an action for reparation, held that as

connection with the construction already put on the 6th of the rules before referred to, warrants the conclusion, that as in point of fact the fall in question occurred outside the pursuer's brushing, that is short of where the rails ended, the consequential injury to his person resulting therefrom, must, in point of law, be attributed to himself: Finds that the pursuer is proved to have admitted to several parties that the injury was occasioned by his own fault entirely: Therefore, for these reasons, partly of fact, and partly of law, assoilzies the defenders from the conclusions of the action: Finds the pursuer liable in expenses; whereof allows an account to be given in, and remits the same, when lodged, to the auditor to tax and report.

NOTE. To explain the grounds of the present judgment more fully than is done in the preceding Interlocutor would only be to add a detailed commentary on the proof, which the Sheriff-Substitute thinks unnecessary. He may observe, however, that there is one point raised in the defences which has not been adverted to in the Interlocutor, because it was thought superfluous, however deserving of attention, namely, that of the responsibility of collaborateurs, suggested in the defenders' third plea in law. And the Sheriff-Substitute has only farther to remark, that for the legal bearings of the general question he has consulted Mr Hay's useful book on the "Law of Liability in cases of Accidents and Negligence." The pursuer appealed and reclaimed, and thereafter the Sheriff pronounced the following judgment:

Edinburgh, 29th October, 1863.-The Sheriff having heard parties' procurators on the pursuer's appeal, and considered the closed record, proof, productions, and whole process, Recalls the Interlocutor appealed from: Finds 1st, That the action is raised for reparation to the pursuer of a personal injury sustained by him through the alleged fault of the defenders, while the pursuer was in their service as an ironstone miner in No. 1 Craigstone Pit, which the defenders were working as contractors; 2d, That on the 9th day of February, 1861, the pursuer, while in the employ ment of the defenders as a miner in the said pit, had his leg broken, by and in consequence of, the falling in of a part of the roof of the said pit; 3d, That the seam of ironstone in which the said occurrence took place was wrought "long wall," and that according to that method the roof ought to be supported by upright props, and where necessary by planks placed horizontally along the roof above said props, and sup. ported by them; 4th, That in regard to that part of the roof which is along the ironstone face at which the miners are employed, and back therefrom to the distance of at least twelve feet, it was, according to the printed rules (No. 20 of process) in force at the said pit, the duty of the miners, of whom the pursuer was one, to prop up and secure their respective working places; 5th, That it is not proved that it was a rule or practice in observance in the said pit that the miners should make and keep secure the roof of the pit farther back than the said twelve feet from the working face; but that it is proved by the said printed rules that it was the duty of others than the miners to keep secure the roof of the main roadways; 6th, That in point of fact the falling in of the roof whereby the pursuer received his injury was at a place considerably beyond twelve feet from the working face of the ironstone in his working place, and was in one of the main roadways of the said pit; 7th, That the roof in that place was insecure, and required to be supported by upright props, and by planks placed horizontally along the roof in manner above mentioned, and that the roof fell in in consequence of the want of such or similar supports; 8th, That the pursuer, before the date of his injury, was warned by his fellow-workmen, and was aware of the insecure and dangerous state of the roof at the place where he received that injury, and that he alleges he complained of the state of the roof to the defender, Barrowman, and the roadsman in the pit; but his alleged complaints are not proved; 9th That the pursuer was in fault in voluntarily and rashly exposing himself on the said 9th day of February to the risk of injury by going or working as he did under that part of the roof which was insecure, and that he admitted to various parties shortly after the accident that he had himself to blame for it; 10th, That the defender, Barrowman, employed the pursuer and set him his work, that he took a personal superintendence of the workings in the pit, and was aware of the insecure and dangerous state of the

roof at the place in question before the pursuer received his injury; 11th, That it is alleged by said defenders that they had provided against the risk and danger arising from the state of the roof by an alleged contract with the pursuer that he (the pursuer) should perform certain operations in the pit to remove the insecurity; that this allegation is not proved, but that, on the contrary, it is proved that the defenders negligently suffered the roof to remain in an insecure and dangerous state until after the accident: Finds in point of law, that the defenders were bound to take all reasonable pre cautions for the safety of their workmen, and that in particular it was their duty to have provided for the security of the roof at the place in question, and that they were in fault in so far as they failed to do so: but Finds in point of fact, that but for the pursuer's own rashness in going or working where he knew the roof to be insecure, the injury complained of would not have been sustained: Therefore finds in point of law, that the pursuer is himself responsible for that injury, and that there is no good ground of action against the defenders, and on these grounds of fact and law assoilzies the defenders from the conclusions of the action: Finds the pursuer liable to them in expenses, of which allows an account to be given in, and remits the same when lodged to the auditor of Court to tax and report.

NOTE. This is an action by a miner for an injury sus tained by him in consequence of the falling in of a part of the roof of the pit.

That the pursuer's leg was broken by a fall of caulm from the roof of the pit is not disputed, and there can be no doubt that if the roof had been properly supported in the manner indicated by some of the witnesses the accident would not have occurred (Morris, pp. 18 and 24; Gillespie, p. 26).

The pursuer alleges that the fault lay entirely with the defenders, and that they are therefore responsible. The defenders, on the other hand, maintain-1st, That the pursuer had in point of fact specially contracted to secure the roof at the place where it fell, and that having failed to do so, the responsibility rested solely with himself; 2d, That the fall having occurred within the range of the pursuer's "brushing," which he himself, by the rules of the pit, was bound to secure, he himself must be responsible; 3d, That the defenders appointed skilful roadsmen to attend to the safety of the miners, and that if the fall took place through their fault the defenders were not liable; and lastly, That the accident hav ing occurred through the pursuer's own carelessness, the defenders were not liable.

1. With respect to the alleged special contract with the pursuer to secure the roof at the place where it fell, there is na difficulty. The defender, Barrowman, is himself the only witness who says there was such a contract. But he is directly contradicted by the evidence of the pursuer and M'Ghee. That contradiction seems to receive support from the evidence of several of the defenders' own witnesses; and the circumstance that the alleged contract was neither fulfilled nor, so far as the proof shows, in the course of being fulfilled on the part of the pursuer, strongly corroborates the contradiction. Farther, the statement as to the terms of the special contract as appearing on the record is very vague and unsatisfactory: and it does not in the least appear from the evidence that the contract would have had the effect if implemented of securing the roof. 2. With respect to the other defences the Sheriff has been greatly puzzled, and has more than once changed his views. But on the whole, he feels satisfied that the result at which he has at last arrived, coin. ciding as it does with that at which the Sheriff-Substitute arrived, is sound.

The pit in question, it appears, is worked on the "long wall" system; and the roof where the workers are engaged requires to be supported; in some places upright wooden props are sufficient, but in others, where the superincumbent stratum consists of caulm, or other material apt to fall, it requires to be supported by boards extending horizontally along the roof in addition to, and supported by, the upright props; and it was the want of such horizontal supports that occa sioned the fall in question. There seems to be no doubt upon this point.

That danger was apprehended at the place where the pur suer was hurt, in consequence of the state of the roof, and that by persons competent to judge of the matter, appears clearly enough. The witnesses, Morris, pp. 18, 24, and 25:

Gillespie, p. 25, and others observed the danger, and warned the pursuer of it. The defender, Barrowman, himself was quite aware of it, for he says in his deposition that the special contract he alleges to have been made with the pursuer was for securing the particular place at which the accident occurred against the falling in of "caulm," and the danger that was apprehended was fatally verified by the fall which actually occurred, and broke the pursuer's leg.

It is quite true that the defenders' witnesses, Stewart and Grant the one a roadsman and the other underground manager-say that they thought the roof safe. Their opinion, however, turned out to be very unsound, and according to their own account of it, they were not very well qualified to judge of the matter. Both of them say that they had nothing to do with that part of the roof, and it is plain from their evidence that they paid no particular attention to it; but their want of observation in regard to a matter with which they thought they had no concern cannot be held to neutralise or contradict the explicit testimony of witnesses who did direct their attention to the subject, and whose evidence the event corroborates.

Now, assuming that there was danger, and that it was known both to the pursuer and to the defenders, the question is raised, upon whom did the obligation lie of making the roof secure, upon the pursuer or upon the defenders?

It cannot be doubted, that when a master employs a servant in a work of a dangerous character, like mining, he is bound to take all reasonable precautions for the safety of that workman. He is bound to take care that the roof of the pit specially above the roads is kept secure, unless, indeed, by the known and recognised rules of practice of the pit, or of the district in which the pit is situated, that obligation is laid upon the miners themselves. In the present case, the defenders maintain, in the first place, that, according to the printed rules in force at the pit, the miners were bound to prop up and secure the roof in their respective working places, for 12 feet, at least, from the working face of the ironstone, and that the accident occurred by the falling of the roof within that space; and, farther, they maintain that the pursuer was bound, by the known practice in the pit, to secure the roof from the working face up to the place to which the rails were laid, although that might be 18 or 20 feet from the working face; and they also say that the roof fell within that space.

On the other hand, the pursuer, while he admits that he was bound to secure the roof to the extent of twelve feet back from the working face, denies that he was bound to do so beyond that distance, and maintains that the fall took place from seventeen to twenty feet distant from the working face, and in one of the main roadways of the pit.

Now, in the first place, the Sheriff is of opinion that it is sufficiently established by the proof that the fall which occasioned the injury did not take place within twelve feet of the working face, but about eighteen feet therefrom. This is deponed to by the pursuer himself (page 33); by M'Ghee, who worked with him in the place where the fall occurred (1 p. 40); by Gillespie, page 27, who heard the pursuer call for assistance, and found him sitting in the place where the accident occurred; by Johnstone, page 42, who took the pursuer's place after the accident, and repaired the place where the fall had occurred; and by Morris, page 18, who had generally good means of knowing and observing.

The defenders attempt to discredit this evidence by observing that these witnesses did not measure the space with a measuring line; that they may have been mistaken as to the measurement; and that two witnesses upon whom they themselves rely, actually measured the space, and found it to be only 10 feet or thereby.

These observations, however, are not entitled to much weight, for, in the first place, miners are, from the necessity of the case, accustomed to judge of distances in pits by the eye-the printed regulations make this obvious; secondly, the pursuer's witnesses above named had the best means of observation, and are not likely to have misjudged the distance by seven or eight feet; thirdly, four at least of these witnesses have no interest whatsoever in the case, and three of them cannot with any reason be accused of siding with the pursuer-judging from their evidence they seem, to say the least of it, to have no bias in his favour, and when they gave their evidence they were in the defender's service; fourthly, the contradictory evidence given by Grant and Stewart on the part of the

More than a year

defenders is extremely unsatisfactory. after the date of the accident, and just when they were about to give their evidence, they went for the first time to measure the distance between the place where the working-face was when the accident occurred and the place where the fall hap pened, and they make it only ten feet-that is, seven or eight feet less than the eye-witnesses at the time of the accident made it. When they so made their measurement it is not said that there was any mark whatever to indicate the place where the working-face was when the accident occurred. And it is obvious, from the evidence, that the working-face was, at the date of the measurement, wholly changed. Now, without knowing where the working-face was at the date of the acci dent by some unobliterated mark, they could make no proper or reliable measurement a year afterwards. Grant neither states that he knew the place where the working-face was nor how it could be known. It does not appear whether he took his measurement upon his own recollection of the place or upon that of other people, and Stewart's evidence is exposed to pretty nearly the same observation. In short, the evidence of Stewart and Grant is most unsatisfactory. They don't say that they made any estimate of the distance at the time of the accident. The probability therefore is that they made none, and they have failed to give any such data, in point of fact, in regard to the localities, as to render the measurement of any great value.

The Sheriff is, in these circumstances, therefore of opinion that the preponderance of evidence is decidedly with the pursuer.

As to the alleged obligation of the miners to maintain the roof up to the end of their brushing-that is, to the place to which the rails were in the present case laid-it is thought that there is no satisfactory evidence. In the first place, the printed rules were only published and enforced at the pit little more than a month before the accident occurred, and while they make the provision already alluded to in regard to the twelve feet, they lay no obligation upon the miner to prop up the roof beyoud that space; secondly, it is more than doubtful whether the rules in practice before the publication of these printed rules were binding upon the miners after their publication, and sufficient time had not elapsed from the date of the enforcement of the printed rules for any new practice to have grown up; thirdly, the witnesses who speak to practice and rules other than those contained in the printed document are not consistent among themselves, and the practices they speak to differ materially from, and in some respects are adverse to and inconsistent with the printed rules which the defenders themselves admit to have been in force; fourthly, in point of law, any practice to be binding upon miners must be well established and known, and cannot be held as proved when the witnesses differ among themselves in regard to the alleged practice.

The Sheriff has therefore held that the practices alleged by the defenders, other than those contained in the printed regulations, are not proved.

But further, even although they were proved, it would not follow that the defenders would escape liability on the ground of such practices in the present case, because it is expressly provided in the printed regulations so frequently referred to already, that the roads in the pit shall be under the charge of the roadsmen, who are taken bound to repair all damages and defects therein, and in the roofs above the roads. If, therefore, the accident occurred in one of the main roadways, it was the duty of the roadsman, and not of the pursuer, to secure the roof. And that the fall in question did occur in a main roadway is sufficiently proved by the evidence of John Morris, p. 19, of the pursuer, p. 32, M‘Ghce, p. 39, and of Andrew Donaldson, p. 44.

On this ground, the Sheriff has held that it was not the pursuer's duty to maintain the roof at the place in question, but the defenders'.

Still the defenders may not be liable in reparation. For, although the fall may have taken place through their negli gence, yet if pursuer's leg would not have been broken but for his own culpable rashness in working or passing under the insecure and dangerous part of the roof, they would not be liable. This seems to be settled by the cases Paterson v. Wallace & Co., 1 Macqueen, p. 748; and Crichton v. Keir & Crichton, 14th February, 1863, d Series of Session Cases, Vol. I., p. 407.

Now it appears, as already noticed, that the pursuer had