companied by express and actual negligence in fact." Powell, ut supra, p. 162, and authorities there quoted. See, in particular, the case of Vaughan v. Taff Valley Railway, Law Journal, Vol. xxix., p. 247, Exch.; see Green v. London General Omnibus Co., 29 L. J., 13 c. p.; see case Cowley v. Mayor of Sunderland, 30 L. J., 127, Exch.; Hole v. Sitting bourne Railway Co., 30 L. J., 81, Ecch.; Vaughan v. Taff Valley Railway, Law Journal, Vol. xxviii., p. 41, Exch., in which it was expressly found that the defenders were not responsible for damage from fire occasioned by sparks emitted from an engine travelling on their railway, and in which Chief Justice Cockburn said, "Where the legislature has sanctioned and authorised the use of a particular thing, and it is used for the purpose for which it was authorised, and every precaution has been used to prevent injury, the sanction of the legislature carried with it this consequence, that if damage results from the use of such thing, independently of negligence, the party using it is not responsible." The pursuer has not even attempted to show that the defenders' engine was improperly constructed, or that any thing could have been done which was not done to prevent the emission of sparks. In the whole circumstances, therefore, it is conceived that liability on the ground of fault or negligence, which is the only ground libelled, has not been made out. But, in the next place, even supposing it could be held that there was negligence sufficient to infer liability, the defenders were entitled to fall back, as they did, on the provisions of the 7th section of the Railway and Canal Traffic Act. By that section it is expressly enacted that "no greater damage shall be recovered for the loss of, or for any injury done to, any such animals" (horses, cattle, or other animals) "beyond the sums hereinafter mentioned-that is to say, for any horse, £50; for any neat cattle, per head, £15; for any sheep or pigs, per head, £2, unless the person sending or delivering the same to such company shall, at the time of such delivery, have declared them to be respectively of a higher value than as above mentioned; in which case it shall be lawful for such company to demand and receive, by way of compensation for the increased risk and care thereby occasioned, a reasonable per centage upon the excess of the value so declared above the respective sum, so limited as aforesaid, and which shall be paid in addition to the ordinary rate of charge." Now, the pursuer admits, and it has been so found, that he made no declaration of higher value, and consequently, no special contract to pay an increased rate was entered into. Any question, therefore, as to how such contract should be interpreted, or what effect should be given to it, does not here arise; and the positive enactment remains instructed that, failing such declaration, the owner, even where he can establish liability against the carrier, shall not be entitled to recover a larger sum for one pig than £2. It was contended, with some ingenuity, for the pursuer, that the above enactment being introduced with the words "provided always," was not a substantive enactment, but was only a proviso on the first proviso of the section; and reference was made to the opinion of Chief Justice Cockburn in the case of Peck, that the penultimate proviso in the same section was in this position. But however that may be, it seems impossible, upon a sound construction of the whole section, to hold the proviso now in question other than a statutory limitation of common law liability in favour of the railway and canal companies, and no dicta are to be found in any of the recent English cases to lead to an opposite conclusion. The defen ders accordingly, with the view of avoiding litigation, tendered, before the action was raised, not only £2 for the sow, but the farther sum of £4, being the value put upon the box by the pursuer himself, and these two sums having been consigned, are now to be paid to him. Negligence or no negligence, the pursuer could not in the circumstances have recovered more than this, and as he, notwithstanding, persisted in a pluris petitio, the defenders are entitled both to absolvitor on the merits and to costs.

under which the sow was carried, which the defenders caused the pursuer's servant to sign, and that the question, therefore, as to whether the regulations of the defenders for the carriage of the animal were just and reasonable, must be judged of from what appears in the contract itself: Finds, on this point, that it was a condition of the said contract that the owner of a domestic animal conveyed by the railway shall undertake "all risk of loss, injury, and damage, and other contingencies, in loading, unloading, conveyance, and otherwise, whether arising from the negligence, default, or miscon duct 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 in, by, or upon which such animals may be loaded or conveyed, or from any other cause whatever:" Finds, as is stated by the Sheriff-Substitute, that it has been finally settled by the authoritative decision of the House of Lords, reversing the judgment of the Court below in the case of Peck v. The North Staffordshire Railway Co., 12th September, 1863, English Jurist, Vol. 9, p. 914, that a railway company cannot limit its common law liability for the conveyance of goods, unless the Court of law under whose consideration the notice or contract of limitation is brought, shall find the conditions to be "just and reasonable," within the intent and meaning of the 17th and 18th Vict., c. 31, sect. 7; and the conditions which were there attempted to be imposed on the owner of the goods were held to be not just and reasonable, though they were much less unfavourable than the above quoted conditions: Finds that it is enacted by the Mercantile Law Amendment Act, 19th and 20th Vict., c. 20, passed in 1856, sect. 17, that "from aud after the passing of this Act, all carriers for hire of goods within Scotland shall be liable to make good to the owner of such goods all losses arising from accidental fire while such goods are in the custody or pos session of such carriers:" Finds, in point of law, that such being the statute law on the subject, and it being admitted and proved that the animal in question was burned and destroyed by fire while being conveyed on the defenders' railway, the defenders are liable for the proved value of the animal, unless they can show that their liability has been restricted to some lesser sum, by the pursuer having failed to give notice of its value in terms of the provisions of the Railway Companies and Canal Traffic Act of 17th and 18th Vict., c. 31: Finds, upon this point, that the pursuer has failed in proving that at the time, or before the contract for the conveyance of the sow was entered into, that he gave any notice of the value of the animal, or that it was worth more than £2, and therefore that his claim would have been limited to that amount, whatever its actual value may have been, if, in terms of the statute, the railway company's regulations for the conveyance of the animal had been "just and reason. able:" Finds, however, that the provisions in the regulations and contract above quoted were so far from being just and reasonable, that they were in the highest degree unjust and unreasonable, seeing they expressly threw upon the owner of the animal to be conveyed by the railway the responsibility not only of accidental losses, other than those flowing from the act of God or the Queen's enemies, but such also as arose from the negligence, default, or misconduct on the part of the company or their servants, or from defects in the station, platform, or other place of loading or unloading, or of the carriage, engine, or train: Finds that these clauses are directly contrary to the common and statute law on the subject of the responsibility of carriers, and as such, unjust and unreasonable: Finds that, as the statutory limitation of the common law responsibility of carriers is made conditional on the adoption of just and reasonable regulations by the com、 pany, the adoption of such just and reasonable regulations is a condition precedent of the limitation of the common law responsibility of the carriors for the full value of the goods, and, in the absence of such just and reasonable regulations, the common law responsibility for the full value of the

Having heard parties' procurators at great length under the pursuer's appeal upon the Interlocutor appealed against, proof adduced, and whole process, and having made avizandum with the debate, Finds that no special proof has been led as to the reasonableness or unreasonableness of the contract,

pany: Finds that, in the English Courts, it is a question for the Jury whether the regulations of a railway company are just and reasonable in the sense of the statute; and that in the Scotch Sheriff Courts, where the functions of a Jury as well as Judge are discharged by the Sheriff, the justness and reasonableness of such regulations falls to be determined by the Court: Finds it proved that Boyd, the pursuer's servant,

who had charge of the sow, remonstrated against a tarpaulin being put over the truck in which the animal was put, as proposed by the railway company's servants, but that his having done so does not relieve the defenders of their responsibility, seeing that the railway company or their servants were the masters of their own station and waggons, and were not obliged to adopt any suggestion of the pursuer's servant unless they chose, and that the danger of the straw in the waggon around the animal igniting by the sparks from the engine was so obvious, that they should not have allowed the animal to go away in its unprotected situation, and, if Boyd had insisted that it should do so, they should at once have refused to take the animal, or comply with his request: Therefore, alters the Interlocutor complained of, and finds the defenders liable in the proved value of the animal: Finds the value proved to be about £20, the sow in question having been an uncommonly valuable one: Therefore, decerns against the defenders for £18, as the value of the pig in question, along with £4. as the value of the box in which it was sent, with interest as libelled: Finds the pursuer entitled to ex penses of process, of which appoints an account to be given in and taxed by the auditor: Allows the £6 consigned in the Clerk's hands by the defenders to be uplifted and paid over to the pursuer, to be imputed in payment pro tanto of this decree, and decerns.

ANN HAY OR RIACH, Applicant, v. WILLIAM WATSON, Inspector of the Poor of the Parish of Rothes, Respondent.

Poor-Wife neglected by her husband.-Held that an able-bodied married woman, with three children under ten years of age, neglected by her husband, and in_a state of destitution, was, notwithstanding the husband being an able-bodied man, entitled to parochial relief for herself and the children.

THE applicant admitted that she was personally able. bodied, but maintained that her time and attention were required by her children to such an extent as to render her unable to earn a livelihood for herself and them. The other facts of the case appear sufficiently from the following Interlocutor and Note, viz:

The Sheriff-Substitute having considered the closed record, with the proof adduced and whole cause, finds that the applicant, at the date of the application, was a married woman, having her husband alive: Finds that three children of the marriage, all under the age of ten years-the youngest of them being an infant unweaned—then lived with the applicant: Finds that her husband was then, and has since continued to be, an able-bodied man, and that he was, and continues to be, able to procure and earn the means of support for himself, for his wife, and for the said children: Finds that he neglected to procure, earn, and supply such support to a sufficient extent to the applicant and the said children: Finds that, in consequence of such neglect, they had come to be, and were at the date of the application, in a state of destitution: Finds that such neglect and such destitution, with very slight and insufficient exception, continued from that time until the date of closing the record, and has not been shown to have since ceased: Finds in law, that during such neglect and such destitution the applicant is entitled to parochial relief for herself and for the said children: Therefore repels the defences, ordains the Parochial Board of the parish of Rothes instantly to proceed and determine the question of amount, and on this being done, supersedes the

order for interim support pronounced on 18th April, 1863: Finds the applicant entitled to her 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.-There does not appear to be any reason to doubt the evidence in process, that for two days preceding the present application the applicant and her children were entirely without food, and that they were then only sustained by having got a small quantity of meal and potatoes in charity, until the interim order for relief under these proceedings took effect. With this aid, with occasional small earnings by cone gathering, by harvest and field work, and with a harvest fee, as it is called, or a part of it, amounting to 20s or 303, received, along with some other small contri butions, from the husband, which, exclusive of the harvest fee, can scarcely be estimated at so much as 1s 6d a-week on the average, and so irregularly given that for two months pre ceding the diet of proof (16th Feb., 1864) the applicant only got about 2s 6d altogether, she and her children have come through, but they appear to have been frequently on the verge of starvation. They still appear to be sometimes for a day or two without food, more especially after a weekly payment of the interim allowance from the Board has been expended, and before another becomes due.

The husband seems to be a shocking sot, and there seems to be no doubt that his habitual intemperance is the only obstacle to his finding steady and remunerative work. He appears never to have had any difficulty in finding the menus of intoxication for himself, while his wife and children were left entirely without food. He admits being from time to time found lying drunk on the streets. His own father states that he has seen him take money given in charity out of the hands of one of his destitute children in order to enable him to procure drink; and his wife says that, when idle in the house, he takes whatever meat is going, including what has been provided out of the interim allowance hitherto paid by the Board. His position appears to be this-That being able to work and able to obtain work by which he could support his wife and family (it not being alleged that there was or is any difficulty in procuring work), he fails to work according to his ability; he misspends, in hurtful indulgence to himself, the greater part of what he does make; and instead of giving any reasonable sufficiency to his wife and family, he even takes from them a part of what they get otherwise. It appears to the Sheriff-Substitute that such conduct on the children as complete and as culpable as if, having money in part of the husband amounts to neglect of his wife and his pocket, he should squander it on himself, and leave them

to starve.

The 80th section of the Poor Law Act recognises the claim of a wife and children to relief, if the husband and father, she or they shall be thereby rendered destitute. The Sheriff being able to maintain them, shall "neglect" to do so, and if Substitute thinks that the whole of these conditions are met in the present case, and that it falls to the Board to relieve the present applicant on the same footing as was done in regard to "desertion," (which falls under the same provision of the Act), in the case of Hay v. Doonan, 25th June, 1851, 13 D., p. 1223. The Sheriff-Substitute does not think that any difference in the principle of the present case is made by the circumstance of the small pittances sometimes given to the applicant by her husband, if substantially he neglects to maintain her, as he undoubtedly does, although the amount of the relief to be awarded may be thereby affected to some small extent.

The same case of Hay v. Doonan, following earlier authori ties, goes to show that the applicant, in her circumstances, cannot be held to be an able-bodied person, to whom the Board are entitled to say, as regards herself and her children, that she has no claim against them, even if the 68th section of the Act, in regard to able-bodied persons out of employment, could be considered to be applicable to a married woman vestita viro, and incapable of entering into any valid contract for regular employment.

A preliminary defence of want of relevancy was attempted on the ground that it had not been substantively stated on the part of the applicant that her husband was able to maintain her. This fact, however, appears to be substantially involved in the other statements, and even if it were not, allegations from which it falls to be inferred are abundantly made by the

respondent himself. This seems to be a sufficient bar to such a plea on his part, more especially when it is taken into view that it is his duty, no less than that of the applicant, in a case of the peculiar nature of the present, to give the whole facts to the Court.

It should be kept in view that the Board, in considering the case of the applicant and her children, will be entitled to take into account all proper means of support which may be earned or received both by her and them, as the intention and effect of the present judgment does not go farther than to repel the defence of total non-liability which has been set up, and does not by any means go to exempt either the applicant or the children from the duty of making such reasonable exertions for their maintenance as may be in their power. The judgment has not been appealed.

Principal; but in the present case there really could be no
preparation required in a question so very simple.
Act. SCOTT.
Alt. PINKERTON,

10TH MAY, 1864.

SHERIFF COURT, PERTHSHIRE-PERTH, (SHERIFFS E. S. GORDON AND DR BARCLAY.)

GEORGE MAXTONE v. JAMES PORTER. Damages-Slander-Privilege-Veritas convicii. — In an action for slander, separate charges were libelled. The defenders pleaded the veritas and privilege. Circumstances in which held that certain of the charges had not been proved by the defender to be true but were privileged; while another charge was not privileged, and held to have been made falsely and calumniously, and damages awarded, with modified expenses.

OR YEARLY.

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

A WIDOW claimed possession of her portrait from the daughter and executor of her husband, who had included it in the inventory and confirmation.

The pursuer alleged that she had paid for painting of the portrait, and further, that it was paraphernal. A proof was allowed of the fact of payment, but none was led. A debate was then allowed on the legal pleas. The pursuer's solicitor attended, but no appearance was made on the other side. The pursuer's solicitor claimed, and was allowed by the auditor, a full debate fee. The defender objected, 1st, there was no debate; and 2d, the provision for allowing two-thirds of the debate fee, where notice had been given of falling from the craving for a hearing, applied only to debates sauctioned by the Sheriff-Principal, and therefore no fee could be allowed, or merely one for simple attendance. The Substitute allowed two-thirds of the debate fee by the annexed Interlocutor:

Having heard parties' procurators on the pursuer's note of objections, sustains the pursuer's objection to the extent of allowing the defender only two thirds of a debate fee, and therefore deducts six shillings and eightpence sterling from the taxed amount of expenses, and decerns for six pounds and sevenpence sterling.

NOTE.-Seeing that the pursuer raised the question that her portrait was paraphernal, independently of the fact of who paid for it, the Sheriff was compelled to allow her an opportunity to debate that point, but she might have dispensed with a hearing. The Substitute has adopted the saine rule as is provided by the table with reference to debates before the Sheriff, and, as a general rule, this seems equitable. No doubt, as stated by the solicitor for the defender, where there has been a previous debate before the Substitute, no farther preparation is necessary for the debate before the Sheriff

Perth. A sum of £2 18s 3d was, in Dec., 1862, abstracted from a desk, and some materials stolen from the business premises. Immediately after this occurrence, each partner gave notice of a wish to dissolve the partnership. The police made a search in each partner's house. While this was going on, the defender was alleged to have used the slanderous words charged in the libel.

The record was closed, and a proof taken. Thereafter parties' procurators were heard, and the Sheriff-Substitute (Dr Barclay) pronounced the following Interlo

cutor:

Having heard parties' procurators, and made avizandum with the process, Finds the words libelled in substance proved to have been uttered by the defender of and concerning the pursuer: but Finds, that if not entirely justified by the facts established in proof, they were, under all the then existing circumstances, spoken not in malice, nor without probable cause, and therefore do not subject the defender in damages: entitled to expenses, and remits the account thereof to the auditor to tax, and decerns.

Assoilzies the defender from the summons: Finds him

NOTE. This is an exceedingly painful case, and on which the Substitute has bestowed much consideration. In the ordinary case, calumnious words are presumed to be false; and proof of their truth, though in every case alleviating the offence, and mitigating the consequent award of damages, do not in all cases entitle the defender to absolvitor. It would not exempt a slanderer from the just consequences of his slander though he proved the substance thereof to be true, if he raked up from oblivion some long-forgotten fact, and sent it fresh into the world to blast the rising prospects of one who had, by years of virtuous life, atoned for some juvenile lapse in vice. Where the truth will justify, and where it will only go to mitigation, depends on no general rule, but on the special circumstances of each case. There are cases of privilege, which are either set forth in the original issue, or may arise at the trial. Wherever a party speaks in dis charge of duty, either as a public officer or as a private citizen, he is justly protected, unless malice be proved. A contrary rule would do more to undermine than to strengthen justice, and to slacken rather than to tighten the social bond. In all cases of privilege, an issue of malice, or want of probable cause, must be taken, or at least proved, where privilege incidentally comes out in the trial. In the present case, the pursuer, as if aware of the very delicate nature of his charge, expressly libelled malice. There is not a doubt but that the shop of the parties, then in ill-fated copartnership, was broken

against the pursuer are, that money was hid by him in his clock, and that the desk in the shop is supposed to have been opened by a key. In regard to the money, it must be kept in view that while £2 188 3d was taken out of the shop, only £1 8s 3d was found in the pursuer's clock. There was no trace of the difference, being £1 10s (£1 in a bank-note and 10s in silver), and no explanation has been suggested as to the way in which the pursuer could have disposed of it. The probability is, that if the pursuer took the money from the shop, he would have hid the whole of it in the clock. It may, at first sight, appear suspicious that the money was placed in the clock; but it must be kept in view that the pursuer at once disclosed to the police that money would be found there-a place not very likely to be searched for money by the police; that his wife speaks to his habit of concealing money in out-of-the-way places; and that even the defender himself admits that he has hid money belonging to the firm behind a picture hanging on the wall of a room in his house. Much reliance cannot be placed in the apparent correspondence between the number of half crowns found in the clock and the number spoken to by the defender as having been in the desk (at first the defender said there were six, not seven, half-crowns), or on the impression of the defender as to the shilling found in the clock, to which the defender's attention was called by one of the policemen. The shilling is not dark in colour, although it has been somewhat defaced. The defender appears to have had a strong belief that the pursuer must have been the person who took away the money; and however excusable in the circumstances to be afterwards explained, he rather hastily formed impressions and drew conclusions unfavourable to the pursuer. It would be unsafe to rely upon the circumstance that the desk did not appear to have been forced open. This, if true, would tell as much against the defender as against the pursuer, for each had a key to the desk; but it is possible that the lock of the desk had been picked. The chalk put under the door may have been crushed, if not by the opening of the door, at all events by the foot of a person who entered by the back-door, and who may thereafter have gone to the front door; for the lath at the back-door presented appearances of having been broken, so as to admit of the key of the back-door being turned in the lock. As to what passed in conversation between the pursuer and defender as to the possibility of effecting an entrance by the back-door, all that can be said is, that the possibility of entering the premises in that way was presented to the minds of both parties. In these circumstances it would be most unsafe to hold that it is proved that the pursuer abstracted the money from the shop. The third question is, were the statements made by the defender privileged, so that the pursuer, in order to entitle him to recover damages, must prove that the statements were made maliciously? The Sheriff must hold that the defender's statements to Davidson, the photographer, regarding the pursuer, were not made under circumstances which entitle the defender to plead that they are privileged. No doubt the statements were made in answer to some inquiry by Davidson regarding the occurrence; but a person answering an inquiry put by a person who has no right or even interest to require an answer, cannot claim for his answer the protection of privilege, although the cir cumstances under which the question was put and answered may tend to mitigate the damage. On the other hand, the Sheriff thinks, that, while the question is attended with difficulty, he is warranted in holding that the statements made by the defender in the houses of Moncrieff and Young were privileged, as the pursuer appears to have given to Moncrieff and other persons present, who were mutual friends of the parties, authority to make some arrangement of their differences and disputes, which necessarily involved the money said to have been abstracted. Fourth, This leads to the next question -viz., was the defender influenced by malicious motives in making the statements injurious to the pursuer's character? In the case of privileged statements, the existence of circum. stances which might induce a defender to suppose that he had probable cause for making his statements, goes far to contradict the existence of malice on the part of the defender. In the present case, while there is no doubt that the defender was not on the best terms with the pursuer, still there is as little reason to doubt that the defender not only seriously believed the truth of the accusation he made, but that the police, with their then knowledge of the facts of the case (additional facts have since been proved), thought there were reasonable

grounds for accusing the pursuer of the abstraction of the money. In addition to this, there was the fact that the pursuer had removed to his own house some lead and other materials from the shop; and although it may be doubted whether the boy Moncrieff is correct in his impression as to what the pursuer said to him, the defender was informed by Moncrieff that the pursuer desired him not to tell the defender that the pursuer had removed these materials. This communication by Moncrieff tended to give a suspicious character to the pursuer's conduct in removing the materials, which might not otherwise have attached to it; for it appears it is not uncommon for painters, partners of a firm, to take articles belonging to the firm for the purpose of being used in their own houses. In the present case, it is proved that the pursuer's house had bugs in it, and that paint was considered likely to remove them. There appears to have been more brushes in the pursuer's house than were required for the painting of the house, which rendered the pursuer's conduct more liable to suspicion. Having regard to the then state of the defender's knowledge of the facts bearing upon the accusation made against the pursuer, the Sheriff thinks that the charge was not made at the time without probable grounds; and if so, it cannot be held that it was made maliciously. Fifth, The only remaining question on the merits is, what amount of damages ought to be awarded to the pursuer against the defender for the statements made by him to Davidson? These statements were made by the defender in answer to inquiries by Davidson; and it must be kept in view that the police pointed at the money having been taken by either the pursuer or the defender, so that the defender may have been considered as defending himself. To some extent the defender had reason at the time for supposing that there were probable grounds for accusing the pursuer; and the conduct of the pursuer in regard to the removal, at all events, of the paint and paint-brushes, without communicating with the defender in regard to them, may have materially contributed to the impression which undoubtedly existed in the mind of the defender. Farther, the pursuer at the debate, while denying that he took away the money, contended that there were grounds for holding that it was taken away by the defender himself, in order to support a false accusation against the pursuer-a supposition that is unsupported by evidence, although the Sheriff cannot avoid condemning the impropriety of the defender in employing the apprentices of the firm to watch the pursuer, one of their masters. The defender ought rather to have called the attention of the police to the premises, and their watch would no doubt have been more successful. In the whole circumstances, the Sheriff thinks that he is justified in modi. fying the amount of damages to £10. The last matter is, what should be done in regard to expenses? The defender having been unsuccessful in his attempt wholly to justify the charges made by him against the pursuer, and the pursuer having been successful in establishing that the defender improperly accused him of taking away the £2 18s 3d, is entitled to expenses generally; but as the pursuer has not succeeded as regards two of the charges, the expenses have been modified to three-fourths of the taxed amount. Act. MELVILLE JAMESON.

11TH MAY, 1864.

Alt. ALEX. WILSON,

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

SCOTT v. M'GILL.

Pauper-Bastard-Parent and child.-The father of a bastard contributed to its maintenance till its twelfth year. It afterwards fell into bad health and destitution, and came to be chargeable to the parish of its birth settlement, and thereafter died. In an action by the parish against the father, held that he was liable in repetition, and decree, with expenses, given.