been warned of his danger by various parties, and that he was quite aware of it, is sufficiently evidenced by the fact of his own averments that he complained to the defender Barrowman and to the roadsman that the roof was insecure and unsafe. He therefore went to the place of danger with the full knowledge of the danger, and reckless of consequences.

He no doubt alleges, and endeavours to prove, that the defender Barrowman and his two subordinates assured him of the perfect safety of the place in question, and that he was thereby induced to incur the risk which proved so unfortunate to him. And if he had succeeded in his proof on this point, it rather appears to the Sheriff that he must have succeeded in the present action, for he would have been quite entitled, notwithstanding the warning he had received, to rely on the superior skill and experience of Barrowman and his roadsman, in assuring him of his safety, and, relying upon their skill and assurance, it could hardly have been contended by the defenders that the accident was attributable to his own fault and

rashness.

But, unfortunately for him, he has not succeeded in his proof. All the parties referred to, Barrowman, Grant, and Stewart, deny upon oath that he complained to them of the insecurity of the roof, or that they gave him any assurance of safety.

And their denial is better supported than the opposite assertion of the pursuer and M'Ghee, because it is proved, to the satisfaction of the Sheriff, by John Morris, one of the pursuer's own witnesses, and by William Kennedy (page 62), William Matthews (pages 63 and 65), John M Waters (page 66), and Allan Fettes (pages 67 and 68), witnesses for the defenders, that the pursuer frequently after the accident made statements to the effect that no one was to blame for it but himself, and he made these statements calmly and deliberately.

As the accident, therefore, was not the result of the defenders' negligence alone, but would not have happened but for the pursuer's own culpable rashness in exposing himself to danger which he knew to be imminent, the Sheriff has, upon the authorities above referred to, assoilzied the defenders from the pursuer's claim.

and craving warrant, in terms of sect. 72 of the Act, for Thomson's removal to a public hospital. A certificate by two medical practitioners, in the terms required by the Act, was presented along with the petition. The SheriffSubstitute thereupon granted the following warrant:—

The Sheriff-Substitute having considered the foregoing petition, with the certificate therewith produced, hereby ordains William Henry Thomson, mentioned in the said petition, to be forthwith removed, under the charge of William Hay, chief constable of Elginshire, from the prison of Elgin, and conveyed to Gray's Hospital, in Elgin, in order that he may be treated therein until he, the said William Henry Thomson, be again fit to be recommitted to the said prison, 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 William Henry Thomson, until he shall be so recommitted or otherwise dealt with as aforesaid: Ordains the petitioners to cause the said William Henry Thomson to be visited from time to time by the surgeon of the prison, and to report to the Procurator-Fiscal of Court when the said William Henry Thomson may be again fit for recommitment to the said prison, in order that he may be recommitted to the same, under the warrant of commitment mentioned in the petition: Authorises the said Procurator-Fiscal, if he shall think proper, to cause the said William Henry Thomson to be also visited from time to time by such other medical practitioner as he may direct, and for these purposes grants warrant to all concerned.

Agents for the Prison Board-GRANT & JAMIESON,

21ST APRIL, 1864.

SHERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON AND STRATHERN.)

THOMSON.

Act. C. B. ROWAN, Ayr. All. A. M'CLYMONT, Cumnock.

20TH APRIL, 1864.

SHERIFF COURT, 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, with concurrence of the Procurator-Fiscal, for removal to hospital of an untried prisoner, in consequence of disease, threatening immediate danger to life, which could not be treated in the prison.

THE Elgin County Prison Board, as administrators of the prison of Elgin, with concurrence of the ProcuratorFiscal, presented a petition, stating that William Henry Thomson, a prisoner in the said prison, under a warrant of commitment until liberated in due course of law, proceeding on a petition, at the instance of the ProcuratorFiscal, charging him with the crime of forgery and uttering, was suffering from disease, threatening immediate danger to life, which could not be treated in prison,

yard on the Clyde, where a vessel was to be launched, there was moored another vessel belonging to a foreign owner. As the vessel to be launched was large, and it was feared a collision might take place, application was made to the harbour-master to move the vessel out of the way-it was moved a number of feet eastward. Application was made to the master to move it farther off, but this was refused, as he had not power. The launch took place, but the tackling gave way, and the new vessel ran into the berthed vessel and damaged her. a summary action to have her repaired under judicial authority, at the instance of the master, and for relief— Held (1) That the action was competent in a summary form, and at the master's instance; and (2) That the shipbuilder was liable in the damages done to the injured vessel.

In

THE S.S. steamer "Brandon" was lying on the north side of the Broomielaw, at a berth assigned to her by the harbour-master, nearly opposite the building-yard of the respondents. The defenders launched an iron screw steamer, the "Cortes," which, from some defect in the tackling or management, ran into the "Brandon," and caused considerable injury to her hull and fittings. The injuries were ascertained and reported on by mutual consent, but when called on to have the repairs executed the defenders refused. Thereupon the pursuer, as representing his owner, who was a foreigner, brought the

present action, craving a remit to a shipbuilder named, or other properly qualified shipbuilder, to execute the necessary repairs, and a decerniture for the amount. Appearance was entered, and the defence stated in a minute as follows:

Preliminary.—The action as laid is, in the circumstances, incompetent, being in a summary form.

On the Merits.-Admitted that on 17th December last the respondents launched a screw steamer, called the "Cortes," into the Clyde from their building-yard, and that a steamer called the " Brandon," which was lying nearly opposite the respondents' yard at the time of the launch was slightly damaged by the "Cortes" having come into contact therewith. Admitted also that the respondents, without admitting liability, had agreed, under reservation of all their pleas, to the survey referred to in the petition being made, and that they declined to repair the injury sustained by the "Brandon." Quoad ultra, a denial of the whole averments in the petition and of liability for the cost of the repairs in question, it being specially denied that the collision was caused by defects in the respondents' arrangements for launching their said vessel, or in the tackle or other appliances used by them at the launch, or by negligence during the launch on the part of the respondents or others for whom they are responsible; and explained that all the accustomed and necessary appliances were used, and due care and precaution exercised by the respondents in connection with the launch; and, in particular, that the respondents, prior to the launch, requested the harbour-master to get the vessels on the opposite side of the river from the respondents' yard removed out of the way of the launch, and that two of the depute harbour-masters, and also the person or persons in charge of the "Brandon," were specially urged by the respondents to remove the said last-named vessel to a place of greater safety, but they failed to do so. The damage complained of was occasioned by the negligence of the petitioner or others representing him and for whom he is responsible. Further, explained and averred, that in a great many of the details specified in the surveyor's report, the “Brandon” had been damaged or was defective prior to the collision.

The record having been closed, and parties' procurators heard, the Sheriff-Substitute pronounced the following Interlocutor:--

Having heard parties' procurators on the closed record and their respective pleas, Repels the preliminary defence, and under reservation of the rights and pleas of parties, but of their consent as to the nomination of the following shipbuilders, remits to Messrs Barclay, Curle & Co., shipbuilders, Glasgow, forthwith to repair the damages alleged to have been done to the steamer "Brandon," by the launch complained of in the petition, to the extent, and so far as these are detailed in the survey, of date 26th December last, produced, and immediately on execution of such repairs, to lodge a report and particular account thereof in the hands of the Clerk of Court; farther, and before answer, allows the pursuer a proof of his averments in the petition relative to the cause of the damage sustained by said steamer, and to the defenders a proof of their averments in defence: Allows them a conjunct proof respectively, and grants diligence at their instance against witnesses and havers, and commission to any of the Depute-Clerks of Court to take the depositions of havers, to receive productions, certify exhibits, and to report forthwith, and appoints the process to be enrolled first court day, that a diet may be fixed for said proof proceeding.

NOTE. The screw steamer "Brandon" belongs to a foreign owner, and at the Broomielaw, the vessel, quoad its owner, are said to have been sustained. To have the vessel repaired, lies in a foreign port, and where the injuries complained of and made again fit for sea, is the primary object of the present action; and incidental to that object, there is involved the question whether the defenders negligently caused the injuries, and are consequently bound to repair them. It was objected for the defenders that this was little else than a claim of damages, and the action ought to have been brought in an ordinary form. But the Sheriff Substitute views the execu important conclusion, and the maritime character of the subtion of the repairs under judicial authority the essentially ject prima facie shows the urgency for having these repairs executed, and whereby farther loss to all concerned may be Brownlie, 29th January, 1846; Logan, 14th January, 1841; saved. These features distinguish this from the cases of and Jackson, 20th June, 1848, cited in support of the preliminary defence. This seems one of the class of cases justify. ing summary action, noticed in Barclay's M'Glashan, p. 391, immediately sought, is to obtain execution of the repairs, where alleged recent wrong has been done, and the redress without which the vessel cannot again sail.

Proof was thereafter led and concluded, and after a hearing the Sheriff-Substitute pronounced this farther

Interlocutor:

and whole cause, and made avizandum, Finds, in point of Having heard parties' procurators on the concluded proof fact, that, on the morning of 17th December, 1861, the steamship "Brandon," of about 1000 tons burthen, and whereof the pursuer was then master, lay berthed at Finnieston Quay, on the north side of the Glasgow harbour, and opposite the defenders' ship-building yard: Finds, that the vessel had been so berthed by the harbour-master, and had lain there for some time before under arrestment, at the instance of creditors, and it was then in charge of a keeper appointed by them: Finds that the defenders had completed in their said yard a large screw steamer, about 300 feet in length, named the "Cortes," and of above 2000 tons burthen, and of which intention they had given notice to the harbourand which they had arranged to launch that day at flood-tide, master, with a request that the vessels then berthed in the harbour, opposite their launching ways, should, as a measure of precaution, be removed farther up or farther down the river, and so as to be out of the line of the launch: Finds that the "Brandon" was in consequence, and by the order and under the superintendence of the harbour-master, shifted eastward from her berth, stern foremost, on two occasions then between 30 and 40 feet farther, and until, in the opinion before the launch on said morning-first, about 140 feet, and of the harbour-master, she was in a safe place, and was rather farther off than he had been accustomed to remove vessels opposite said yard on the occasion of previous launches: Finds that the "Brandon" was moored to the quay in this new berth, with her bows pointing westwards down the river, and there were other vessels lying close astern, and a small river steamer-the "Jupiter"-lay alongside: Finds, that immediately before the "Cortes" was launched, the defenders became apprehensive that the "Brandon" and the "Jupiter" were not sufficiently out of the way of the launch, their purpose being to give the vessel a run in the river of 350 feetthe Clyde being there about 340 feet wide-and the defender, Mr James Thomson, crossed to the north quay and urged one of the harbour-masters and Kennedy-the person having charge of the "Brandon"-to remove her still farther east: Finds that Kennedy refused, because he had no power or right to remove the vessel, and the harbour master, who alone had the power, declined, because shifting farther east would have involved the displacing additional vessels astern, and because he deemed the "Brandon" safe and sufficiently removed already: Finds that the defenders retained their view, that the "Brandon" was not in a secure position; nevertheless they proceeded to launch the "Cortes," but immediately before, or, as soon as she entered the river, the launching tackle, both amidship and at the stern, successively gave way and broke, and farther control over her was lost, and she crossed the river upwards, towards, and came in collision with the "Brandon" on the port-bow, and caused the whole damages enumerated in the report, No. 6 of process,

"

with the exception of the removal of the metal half round which had been done before: Finds that of consent of parties, the damages so sustained were repaired by Tod & M'Gregor, shipbuilders, Glasgow, and their account, amounting to £52 88 2d, was paid by the pursuer on 23d September, 1862, (No. 17), the defender having denied liability: Finds, in point of law, that the defenders acted rashly and improperly in launching so large a vessel as the "Cortes' within the harbour of Glasgow, while vessels were, in their opinion, within the line of the launch, and capable of being injured, through failure of the tackle; and they are besides responsible for the damages which followed, the precautions taken and tackle used by them having proved insufficient safely to launch and control the vessel after reaching the river: Therefore repels the defences, and, in respect, the expense of repairing said damages have already been defrayed by the pursuer, finds the defenders bound to relieve them thereof: Finds them accordingly liable in payment to him of said sum of £52 8s 2d, and with interest thereon from said date of pay ment by the pursuer: Finds the defenders liable in expenses, allows an account thereof to be lodged, and remits the same to the auditor to tax and report, and decerns.

NOTE. Under the harbour regulations, the berthing and shifting of vessels in cases of launches within the harbour, or for any other purpose, could only be done by the direction and permission of the harbour-master. The pursuer, or the person in charge, were therefore in no respect to blame whether the "Brandon" was actually removed sufficiently out of the range of the launch or not. How far the defenders were relieved of responsibility by having required the harbour-master to comply with their desire to shift the "Brandon" still farther east, is a question not properly arising with the pursuer. They were clearly not warranted in launching their large ship in a thronged harbour, in the face of seen danger to the shipping lying there. That danger both the defender, Mr James Thomson, and the foreman, Burns, dreaded; and the excuse made, that delay in launching would have lost them a tide and caused the defender inconvenience and expense, is inadmissible. If delay and cost were suffered by the act of the harbour-master in unreasonably or unjustifiably refusing to shift vessels to safe moorings, they had their remedy against the River Trustees; but whether the harbour-master's opinion was sound, that the "Brandon" had been removed far enough, guided as that opinion was by former experience of such launches, need not be inquired into at present. It is acknowledged by the defenders themselves, that had their tackle not failed, they could have brought up and turned the vessel before it had gone three-fourths across the river. That tackle, however, did fail, and they knew from previous instances befalling themselves when heavy vessels were launched, that the tackle sometimes proved insufficient, and broke, on which account the greatest care and precautions were necessary to secure the safety of adjacent shipping. The defenders, no doubt, seem to have expended a good deal of skill, and to have employed apparently strong cables, ropes, and appliances, and to have fastened them with a considerable show of security; still there were weak points, and the lash ings of the chain cable to the main-mast amidships was one of them, and almost as soon as the "Cortes" was set loose on the launching ways, her enormous weight and the impetus she gathered snapped every coil of these lashings at once, causing the cable intended to control her to fall overboard, and, throwing too much strain on the ropes composing the stern tackle; these were in turn broken, and all control was lost. Prima fucie, such an occurrence is practical evidence of insufficiency, notwithstanding the opinion of skilled witnesses given to the contrary; but how to account for the failure was a puzzle. One of the defenders' witnesses (Duncan, p. 64) suggests that "the kind of tackling to be used for a launch depends a good deal on the position of the yard and the declivity of the launchingways.' The length of the defenders' launching ways was 320 feet, and the declivity was, as a mean, three-eighths of an inch in a foot throughout (proof, pp. 49, 50). Now, whether this, considering the vessel's weight and length, was too considerable a decline, giving too much velocity and corresponding strain on the guiding cables at first, or not, it otherwise does not appear how the lashings yielded. If that was the cause, there was an error in calculation on the defenders' part; if it was not, they have failed to show that the yielding of the tackle was a result against which they were unable to provide; and in either view, aside from the fault in launching under

the circumstances at all, they are liable to repair the damages which they occasioned.

The defender appealed, and the Sheriff thereon pronounced the following judgment:

peal upon the Interlocutor appealed against, and made avizanHaving heard parties' procurators under the defenders' apdum, and considered the record, proof adduced, and whole of the expense of repairs executed, under judicial authority, process, Finds that this is an action concluding for payment upon a steam vessel called the "Brandon," whereof the pursustained by her while lying in the harbour of Glasgow, suer is master, in consequence of damage alleged to have been they are responsible, in the course of launching a large screw through the negligence of the defenders, or of those for whom steamer built by them, called the "Cortes," of about 300 feet in length, and of above 2000 tons burthen, and the defences that the damage done was entirely owing to the pursuer's own carelessness and negligence, or of those in charge of the vessel: Finds it shown by the plan or drawing produced, that the "Cortes," which was the vessel that was launched, came in slanting direction from the defenders' building yard, on the south side of the Clyde, into the river, directly in the line of the "Brandon," which was berthed on the opposite side, and which was less than one-half of the size of the "Cortes:" Finds that the length of the defenders' launching ways, or slope, was 320 feet, and the declivity was 3-8ths of an inch to the foot throughout: Finds it proved that the defender, Mr James Thomson, shortly before the launch, urged upon Kennedy, the person then in charge of the "Brandon," the farther removal of the vessel out of the way of the launch, but he declined to do so, unless ordered by the harbour-master appointed by the Clyde Trustees, who had charge of the berthing of vessels, who declined to order the removal of the "Brandon," as he thought it was sufficiently out of the way of the "Cortes" at the place she had been berthed: Finds that the "Cortes," while being launched, was held back in the usual way, and at first went off very slow, but gathered velocity as it went down the slope, and at length came with considerable velocity against the "Brandon," which she struck, and caused the damage, the repairing of which is now sued for: Finds that the "Brandon" could easily have been moved out of the way farther up the river, although it would have displaced the berthing of the other vessels above it: Finds that if the tackling used in launching a vessel stands, it is not necessary, in the general case, to move the vessels from the opposite side, but this is generally done, to meet the case of some of the tackling giving way, which sometimes occurs in the launching of large vessels, in spite of every precaution that may be taken: Finds that, on the occasion in question, the "Cortes" was secured by tackling round midships, and also with cables round the stern, which were well fastened on the shore to logs weighing six or seven tons each: Finds that the tackling and chains were so disposed that they became taut successively, and the strain on the cables was brought on gradually: Finds that when the "Cortes" got into the water the tackling round the main-mast gave way, and the logs on the shore were brought down to the blocks, in consequence of which all control of the vessel was lost, and she came down upon the "Brandon," and caused the damage sustained by her: Finds that the "Cortes" sustained no damage whatever by the collision: Finds that, with the exception of the lashings at the main-mast, which gave way, the tackling was sufficient and skilfully arranged: Finds that, in consequence of the represen tations of the defenders, the "Brandon" had been, in an early part of the day, by orders of the harbour-master, moved 140 feet or thereby up the river from where she had been berthed, and the defenders, in order to avoid all risk of danger, desired both Kennedy, who was in charge of the "Brandon," as well as the harbour-master, half-an-hour before the launch took place, to move the vessel still farther out of the way, but both Ken nedy, as well as the harbour-master, who alone could order the removal of it, and had the entire charge of the berthing of vessels in the harbour, declined to do so, as it would cause the moving of all the vessels on the north side of the harbour, and he was besides of opinion that it was sufficiently out of the way at the spot she was lying at, in consequence of which the launch went on as the vessels lay: Finds, in these circumstances, that the defenders were in fault in launching their vessel directly down on the "Brandon," as shown on the

plan, when they themselves were aware of the danger, and apprehensive it would be hazardous to the "Brandon," and had represented that to the person in charge of that vessel as well as to the harbour-master, and by not having furnished tackling sufficient for the launching of the vessel, as was proved by its giving way at the midships, and thereby causing the damage done to the "Brandon," and have therefore rendered them selves responsible for the cost of the repairs proved to have been made by Messrs Tod & M'Gregor, under the authority of the Court, and paid for by the pursuer; therefore adheres to the Interlocutor appealed against in toto, and dismisses the appeal.

The con

Railway Company-Public carrier-Railway Company and Canal Traffic Act-17 and 18 Vict., c. 31, sec. 7-Mercantile Law Amendment Act, 19 and 20 Vict., c. 20, sec. 17.—An animal was consigned to the defenders for carriage from Glasgow to Dumfries, but its value was not declared in terms of the 7th section of the Railway Company and Canal Traffic Act, 17 and 18 Vict., c. 31. The animal was destroyed by fire caused by sparks from the railway engine. tract between the company and the consigner was that the latter "undertakes all risk of loss, injury, and damage, and other contingencies in loading, unloading, conveyance, and otherwise, whether arising from the negligence, default, or misconduct on the part of the company, or their servants, or of any other person or persons whatsoever, or from defects or imperfections in the station, platform, or other place of loading or unloading, or of the carriage, engine, train, or railway, or by or upon which such animal may be loaded or conceyed, or from any other cause whatever." action against the railway company for the full value of the animal, the defenders pled (1) that its value had not been declared at the time of the consignment, and (2) the action was excluded by the terms of the contract-repelled; and held that the terms imposed on the consigner were not just and reasonable, and decree given for the full value claimed, with costs.

THE summons in this case concluded as follows:

In an

Therefore the defenders ought to be decerned to pay to the pursuer the sum of £20 sterling, being the value of a live sow or pig belonging to the pursuer, and £4 sterling as the value of a box or carriage in which said sow was placed, both of which were destroyed by fire by and through the fault, neglect, or carelessness of the defenders or their servants, or others for whom they are responsible, or wilfully and intentionally in the following circumstances, namely: On the 31st July last the defenders received from the pursuer a live sow or pig belonging to the pursuer, which was enclosed in a carriage or box also belonging to the pursuer, and made for the purpose of holding the said sow or pig, enclosed in the said

carriage or box, was so received by the defenders, to be forwarded by them by railway on the pursuer's account to Dumfries, where the pursuer intended to exhibit the said sow or pig at the Highland Agricultural Society's Cattle Show, and when so received the pursuer declared that the value of said live sow or pig was above £2 sterling, or at least gave them to understand that it was above that value, and this the defenders' servants knew, or might have known, from its size and appearance, and from the circumstances under which it was placed under their charge, and the directions which were given them in regard to it, and the purpose for which it was for. warded by railway, which was known to them; that the pursuer was then told by a servant of the defenders that it would be conveyed by railway from Glasgow to Dumfries in a covered railway carriage belonging to the defenders, as it would not be safe to forward it in an open carriage on account of danger from fire from the locomotive engine which was used by the company in taking on the said train; but notwithstanding, the defenders, by themselves, or servants, or others for whom they are responsible, placed the said live sow or pig, enclosed in said box, in an open railway carriage, and, in place of using coke, as required to do by law, for the locomotive which propelled the train, of which the said railway carriage formed a part, coal was used by the defenders, or their servants, or others for whom they are responsible, and the straw in the box, in which the said sow or pg was burned to death, and the carriage or box in which it was, was destroyed and both rendered worthless-with the lawful interest of the said two sums of £20 and £4, amounting together to the sum of £24, from the date of citation till payment, and with expenses.

The pursuer pleaded-1. The Act 17 and 18 Vict., c. 31, does not exempt the defenders from liability for loss and damage arising from the gross or culpable neglect or carelessness, or the wilful default of their servants, or others for whom they are responsible, and the defenders are therefore liable to the pursuer for the sums sued

fot.

2. But in any view, as the defenders by their conduct and actings ignored and set aside the terms of the Act referred to, they are not entitled to claim any immunity which it confers on railway companies.

3. Separatim. The conditions alleged to have been made by the defenders as to receiving, forwarding, and delivering animals, etc., not being just and reasonable in the sense of the Act, the defenders are not entitled to found on them in defence to the pursuer's claim.

The defenders pleaded-1. The pig destroyed having, by the orders of the pursuer's servant in charge of it, been put into an open carriage in place of a covered one, in consequence of the pursuer having failed to give the defenders notice of his intention to forward his pigs in crates instead of in the usual manner, the defenders are not responsible for the consequences of the accident.

2. The straw in the crate containing the pursuer's pigs having caught fire in consequence of the pursuer's servant refusing to allow the defenders' servants to cover the crate with a tarpaulin, the defenders are liberated from the loss occasioned by the death of the pig-the culpa, if any, being that of the pursuer's servant, and not of the defenders'.

F*