4TH JULY, 1864.

SHERIFF COURT, LANARKSHIRE-GLASGOW.

(SHERIFFS SIR A. ALISON AND SMITH.)

STEWART v. COMMERCIAL BANK.

Summary-Interdict-Expenses-Appeals, rules as to.-
An interdict was granted against a sale ex parte and
in limine, but after a hearing was recalled. Before an
appeal was noted the sale was carried through, and the
Sheriff-Substitute found the respondents entitled to ex-
penses.
On appeal, this was recalled, and expenses
found due to neither party.

NOTE. This case is a very important one in point of precedent on a very important point of form, because cases are constantly occurring in which an interdict is granted in limine by the Sheriff-Substitute before hearing both parties, and then recalled upon hearing them upon it; and the party who has been unsuccessful intends to appeal against the Interlocutor,, and indicates an intention so to do. In such a case it is some-. times no easy matter to say how matters are to be arranged in the interval, generally extremely short, at least in this Court, between the deliverance of the Sheriff-Substitute and the judgment of the Sheriff upon the appeal. On this point the following rules appear to be consonant with the statute and legal principle:-1. If the interdict has been continued by the Sheriff-Substitute without any limitation in point of time, of course it remains in force till recalled by the Sheriff. 2. If the interdict is refused or recalled by the Sheriff-Substitute, the party against whom it had previously been granted becomes reinvested with the right to proceed with the diligence, or

Rules recommended for appeals, especially applicable to other thing sought to be interdicted, and that even although

summary action.

THIS was a petition for interdict. Interim interdict had been granted, but on a hearing had been recalled. The day after the recall of the interdict, and before any appeal had been noted, the sale sought to be interdicted had been carried through. There was thus nothing to interdict when the case came again before the SheriffSubstitute, and he dismissed the action, and holding that the respondents had been successful in opposing the petition, he found them entitled to expenses by the following Interlocutor:

Glasgow, May 3, 1864.-Having heard parties' procurators on the closed record and whole process, In respect it is admitted that the only question that now remains is that of expenses; and in respect the respondents have been entirely successful in opposing the petitioner's craving for interdict, dismisses this action: Finds the petitioner liable in expenses, of which allows an account to be given in, and remits the same to the auditor to tax and report, and decerns.

This Interlocutor was appealed, and after a hearing the Sheriff pronounced the following judgment:

Glasgow, June 2, 1864.-Having heard parties' procurators under the pursuer's appeal, upon the Interlocutor appealed against, and whole process, Finds that the matter involved in the present process is merely the question of expenses, as the interdict granted in limine was recalled before the sale took place; and the sale so carried through was not in breach of any subsisting interdict, seeing the interim interdict, granted in limine, was on 2d March recalled by the Sheriff-Substitute on hearing both parties, and the sale was carried through on the following day, 3d March, at twelve o'clock, before the Interlocutor recalling the interdict had been brought under appeal, or any deliverance thereon was pronounced by the Sheriff: Finds that there was nothing illegal on the respondents' part, even although it had been intimated by the pursuer's agent, verbally, and in writing, to the respondents' agent, that he was going to appeal against the Interlocutor recalling the interdict, seeing that a declared intention to appeal, however explicit, cannot be held equivalent to the actual lodging of an appeal: Finds, however, that by carrying through the sale so shortly after the recall of the interdict, and after an intimation by the pursuer's agent of an intention to appeal, although no appeal had been lodged, the respondents withdraw from the Court the means of judging of the validity of the reasons alleged for applying for interdict, and compelled the Court, as was actually done, to refuse the craving for the interdict, not upon the merits of the demand, but on the ground of the sale having been carried through before the grounds for removing the interdict could be considered: Finds, in these circumstances, that the respondents, having by their own act deprived the Court of the means of judging of the merits of the application, they have forfeited their claim for expenses, which they unquestionably would have been entitled to if the application for interdict had been dismissed on its

own merits: Therefore, alters the Interlocutor, and finds no expenses due to or by either party, and decerns.

an intention to appeal is intimated in the most formal way, because nothing can suspend an Interlocutor once pronounced, except the actual lodging of an appeal. 3. If, therefore, the party applying for the interdict wishes to have the nexus continued before an appeal is lodged or discussed, what he must do is one of two things either instantly, on the Interlocutor recalling the interdict being pronounced, mark an appeal, and crave to be heard orally upon it, or move the Sheriff-Substitute, when the Interlocutor complained of is pronounced, to supersede execution upon it for a limited time, as for 24 or 48 hours, to give the party applying for the interdict an opportunity of being heard before the Sheriff upon the appeal. The Sheriff never fails to hear parties upon such appeals the moment the appeal is lodged; and it is by one or other of these methods only that the desired object of having the interdict continued or kept in force till the appeal is disposed of, because it can never be for one moment imagined that the recall of an interdict is to remain inoperative for seven days, being the period that a party under the statute has the right to lodge an appeal against any Interlocutor which can competently be appealed against.

NORTH OF SCOTLAND BANK v. WALKER'S TRUSTEE. Sequestration-Joint obligants-Ranking for interest.— Held, that a creditor who had three obligants, conjunctly and severally bound to him by a cash credit bond, and who had drawn from the sequestrated estates of the three debtors dividends amounting in all to 16s 93d per pound on the amount of his debt, with interest till the date of sequestration, was not entitled, on a second dividend at the rate of 9s 8d per pound being declared from the estates of one of those obligants, to participate in that dividend to a greater extent than 3s 24d per pound, to the effect of drawing interest on his claim after the date of sequestration down to the date of payment, although there were not funds sufficient to pay the general body of creditors on that estate 20s per pound on their debts as at the date of sequestration.

By cash credit bond, dated in 1859, Alexander Low, Alexander Walker, and James Low, bound themselves, conjunctly and severally, to pay to the appellants all sums that might be due on an account-current kept in the books of the appellants in the name of Walker, not exceeding in all £300 of principal, with interest till paid. The estates of James Low were thereafter sequestrated H*

on 7th March, 1862, and those of Alexander Walker and Alexander Low were sequestrated on 4th April, 1862. The appellants lodged claims for the sum due under the bond on the whole three estates; and drew thereon from James Low's estate 8s 4d per pound, from Alexander Low's estate 38 93d per pound, and from Walker's estate 4s 8d per pound-in all 16s 93d per pound. Upon a second and final dividend, at the rate of 9s 8d per pound, being declared from Walker's estate, the trustee admitted the appellant's claim to a participation in that dividend, under the qualification that the appellant should not draw more from Walker's estate than would, along with the dividends already received by them from the other estates, make up 20s per pound on their debt as at the date of sequestration; and quoad ultra he rejected the claim. The present appeal was then taken, on which a record having been made up, the Sheriff-Substitute pronounced the following Interlocutor:

Having considered the closed record, Finds, in point of fact, that the appellants claim to be ranked on the bankrupt estate of Alex. Walker, farmer, Mains of Hassiewell, for £299 4s 1d sterling, the amount of a cash credit bond granted by Alexander Low, James Low, and the said Alexander Walker (all of whose estates have been sequestrated), with interest to 4th April, 1862, the date of Walker's sequestration: Finds that on this claim the appellants have drawn from the sequestrated estates of the said Alexander Low, James Low, and Alexander Walker, dividends at the rates of 38 94d, 8s 4d, and 48 8d per pound respectively, equal in all to 16s 93d per pound: Finds that, by the deliverance appealed against, the trustee has found the appellants entitled to draw, as a second dividend from Alexander Walker's estate, £48 58 04d, equal to 38 24d per pound-making, along with the beforementioned three dividends, 20s per pound on the whole debt claimed on by the appellants, which includes interest to the date of the latest sequestration (Walker's): Finds it admitted that the whole funds of Alexander Walker's estate are insufficient to pay the general body of creditors 20s per pound on their debts, with interest to the date of sequestration, but only a much less sum: Finds, in point of law, that, in these circumstances, the appellants are not entitled to draw interest on their claim for any period after the date of awarding sequestration: Therefore dismisses the appeal, sustains the trustee's deliverance complained of, finds the appellants liable in expenses of process, etc.

NOTE. The dividend of 3s 24d appealed against extinguishes the claim of the appellants as ranked, in terms of the Bankrupt Statute. But they plead that they are entitled to the full amount of the declared dividend, to the effect of receiving payment of interest, amounting to £11 88 54d, which has accrued between the date of sequestration and 10th June, 1863; that is to say, that they should be paid in full of their claim, principal and interest to this date, while the other creditors are only being paid 148 4d on their debts as at the date of sequestration. They say that there is no provision in the statute authorising a trustee to declare a dividend of one rate per pound to one ordinary creditor, and another rate to another ordinary creditor; and probably there is not, but the whole tendency of the statute is so to equalise the dividends as that each creditor shall receive an equal and proportional amount on the claims ranked. And it may be noticed that the dividend of 3s 24d amounts to £48 58 04d, while a dividend of 9s Sd would yield more than three times that amount, and greatly more than extinguish the £11 8s 54d; so that, in any view, the trustee must declare a different rate of dividend to the appellants and to the other ordinary creditors. No doubt, if, after all the debts ranked have been discharged, there be a residue, the appellants will then be entitled to claim out of such residue the full amount of the interest on their debt in terms of law; but till this residue is declared, the Sheriff-Substitute is of opinion that they must rest satisfied with 20s per pound on their claim as ranked.

Act. WILLIAM F. OGG. Alt. JAMES & GEORGE COLLIE.

5TH JULY, 1864.

SHERIFF COURT, PERTHSHIRE-PERTH. (MR SHERIFF BARCLAY.)

NEVO GREGO, poulterer, Kirkgate, Perth, v. H. W.
PALMER, Captain, 74th Regiment, and commanding
the depot, and President of Officers' Mess, Perth
Barracks.

Regimental Mess-Messman.-Circumstances in which held that a regimental mess was not liable for debts incurred by their messman to tradesmen.

THIS is a summons for £5 10s 4d, the amount of an account commencing 2d September, 1863, and ending 8th January, 1864, for furnishing of poultry for the military mess at Perth Barracks.

It appears that Andre' Godtfurneau had at a previous period acted as messman at the barracks before the arrival of the 74th depot, and after an interval of about a year, resumed the office on their arrival.

It is not disputed that the furnishings charged were all supplied to the messman, and by him used for the purpose of the mess table, and that, during the whole period of the furnishings, Captain Palmer, as senior officer, was in the command of the depot, and president of the mess.

The 74th arrived in Perth in April, 1863, and on 12th May there appeared in the Perth Courier the following advertisement-"The officers of depot, 74th Highlanders, will not be responsible for debts incurred by the messman or any of their servants, unless they received written orders signed by one of the above officers.-Perth Barracks, 11th May, 1863."

The messman obtained supplies from various tradesmen. In the present instance it is not pretended on the one hand that any special notice of non-liability of the officers was given the pursuer, or that he had seen, or was in the knowledge of the advertisement above quoted. On the other hand, it is not pretended that any special orders either verbal, or in writing, or guarantee was given the pursuer by the officers. The pursuer entered in his books the supplies as to "the officers' mess" without reference to the names of the messman or the officers. It is alleged that special notice of non-liability was made to the wine merchant, who is said to be the largest creditor, and who has not as yet prosecuted for his claim. But there are obvious reasons why in wine the officers might select the merchant, and yet protect themselves from liability by special notice.

The messman in the beginning of this year absconded, leaving heavy claims unpaid to the tradesmen, and for these they seek to render the officers liable.

The officers had a contract with the messman in the usual mode adopted in similar circumstances, whereby he made certain stated charges for meals which were periodically paid to him without requiring production of discharged accounts by the tradesmen to him. It is understood that there is some balance unpaid in the hands of the officers, which may be made a divisible fund amongst the creditors; but the creditors maintain the liability of the officers for the whole amount, on the

ground that the messman was their servant, and the protection. If the officers are not liable at law, the advertisesupplies were for their benefit.

EGGS v. MARTIN; WALKER v. MARTIN.

Master and Servant.-A farm-servant is not entitled to leave his master's service, even to go to a hiring market, without leave asked and obtained, before 12 o'clock noon of the term day.

THE pursuers were servants of the defender, who was a farmer, and they sued him for their wages, which he had refused to pay them in consequence, as he alleged, of their having illegally and unwarrantably left their service. It appeared that they had left on the morning of the

term-day, without leave, the defender maintaining that
they were not entitled to leave without his special per-
mission before 12 o'clock noon.
The judgment of the
Sheriff explains the circumstances:-

In these cases the question raised is whether two farmservants, one a lad, and the other a ploughman, who left their employment about 7 o'clock on the morning of the termday, in place of leaving at noon, were justified in so doing. Though the cases differ in detail, they are both governed by the same leading principle, namely, that twelve o'clock noon of Whitsunday is the legal term, and that, if a servant is to leave before that time, he must be justified in doing so, either by express bargain, or by a custom so general and uniform that it must have been in the view of both contracting parties.

In neither of the present cases is it alleged that there was any express bargain entitling the parties to leave before the arrival of the legal term.

In the case of the lad, the reason pleaded for leaving before the legal term was, that he was going to a feeing market; and in the circumstances, had he given any satisfactory proof that that really was his reason for leaving, it would have been sufficient. But the master says he never was asked to allow the lad to leave for that purpose, and that if he had been asked to do so, he would have given permission. On the other hand, the lad (and the ploughman who happened to be present) said that he did mention for what he wanted to leave. In this conflicting state of the testimony, we must look to what followed. We find that the lad, in place of going to the feeing market he named, went off to his home, a distance of some ten miles, in an opposite direction, and so far from the market that it was impossible he could reach it in time for hiring, and that in truth he never went one step towards it. In this state of the facts, he cannot be held to have proved that he left his employment for the purpose of attending a feeing market.

The case of the ploughman is more difficult. Some proof has been led as to a custom of married farm-servants leaving on the morning of the term-day, in order to have time to remove their furniture. The proof as to this custom was scarcely definite enough to set aside the legal term, for it failed to show whether the practice was one existing as of legal right, or whether it existed as a matter of privilege granted by the old master to oblige the servant, and as much as the servant-the new master, and had thus its origin merely in that feeling of mutual good-will without which the relation of master and servant becomes nothing except a source of annoyances. But such as the custom was, the pursuer did not prove that it was applicable in his case; which was peculiar, for though he was a married servant, he lived in the bothy and his family lived at a distance, and he was to all intents and purposes, in so far as concerned his master, an unmarried servant. Thus he also has failed to prove a valid excuse entitling him to leave before the expiry of the term of his employment.

There were two minor points raised in the second case. Upon the first of these, as to the lawfulness of an order that was given, I need say little, except that the order was apparently quite a legal order, and that nothing was proved

in this case to show that its nature was unlawful.

The

second of these minor points was, whether the wages should be £5 or £5 10s, and on it I think the balance of the evidence is with the servant.

The result of my opinion on the main question being that neither the lad nor the ploughman have proved that they were justified in leaving before the legal term, they must submit to some deduction from their wages. From the wages of the former I propose to deduct 2s, and from those of the latter 5s, together with expenses. In giving this decision I have to add that I have been much guided by the circumstance that similar decisions have already been pronounced in the Sheriff Courts of Forfarshire and Perthshire (Scottish Law Magazine, N. S., Vol. ii., p. 32). Act. CROCKATT.

Alt. FALCONER.

9TH JULY, 1864.

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

JOHN M'MILLAN v. JAMES REAddie, Jun.

Personal injury- Reparation.— Damages awarded for injuries sustained from defective machinery.

THIS was an action of damages for injury sustained by the falling of a travelling crane, the same as resulted in the death of a workman, as reported on page 93 of Vol. cluded for damages arising to the pursuer of the present II. of these Reports (New Series). The action also conaction by reason of the fall of a Derrick crane which was substituted for the crane which had previously broken down, and by which second fall the present pursuer suffered the more severe injury. The following Interlocutors were pronounced:

Perth, 21st April, 1864.-Having heard parties' procurators, and made avizandum with the cause, Finds, under the first conclusion of the summons, First, as matter of fact, Finds that the pursuer, John M'Millan, was employed as a labourer or quarrier, in the service of the defender, upon a moveable or tra velling crane at the quarry of Newhouse; Second, that on Satur day, the 30th Nov., 1861, whilst at his usual employment on said crane, he was, by the breaking of part of the staging thereof, thrown down into the quarry, whereby he sustained serious bodily injuries, in consequence of which he was an inmate of the Perth City and County Infirmary from said date until the 5th of December following, and was, in all, about six weeks unable to work in consequence of said injuries; Third, that the breaking down of the said staging was occasioned by the fault of the defender, in not having the same in a proper and sufficient state to bear the weight put upon it on the said occasion, and not in consequence of any blame or fault of the pursuer or any of his fellow-workmen; therefore Finds, as matter of law, that the defender, as the employer of the pur suer, and by whose orders and for whose benefit the said staging and crane were constructed and used, is liable for the consequences resulting from the fall thereof; assesses the pursuer's damage at £20, and for that sum decerns.

With reference to the second conclusion of the summons, Finds that the pursuer did, on the day libelled, sustain severe injury whilst working at a Derrick crane, in the defender's service, by the loosening of one of the handles thereof, causing him being struck on the forehead by the other handle, at which he was at the time working; but finds it not proved as libelled that the said injuries were occasioned "by the fault, culpable negligence, or carelessness of the defender or others for whom he is responsible, in consequence of the said Derrick crane being insufficient, unsound, and defective;" therefore, assoilzies the defender from the second conclusion of the action: Finds clusion of the action, and the defender to expenses under the the pursuer entitled to expenses incurred under the first consecond conclusion of the libel, and remits the account to the auditor to tax, and decerns.

NOTE. The Substitute refers to the observations made by the Sheriff and himself in the previous case at the instance of Cameron against the same defender, where damages were awarded because of the death of a workman engaged with the pursuer at the time of the breaking down of the larger crane. There appears no distinction between the two cases to occasion any other result, and so the amount of damages is the only matter for decision.

As to the second ground of action, there is contradictory proof, but the preponderance is in favour of the defenderthat the handles, when the crane was put up, were properly fixed by iron pius, which the pursuer or the other workmen superseded with others of wood. It is not clear that there is such a decided superiority of iron over timber as to render the former entirely proof against accidents of the same kind. The pursuer had experience in such machinery, and it was his duty to ask for proper fixtures, and his privilege to refuse working unless supplied with what he must have known was essential

to safety. Employers are bound to all reasonable precautions for the safety of the employed, but this does not relieve the latter from due precautions for their own safety, or protect from the consequences of reckless conduct on their part.

As to the amount of damages under the first conclusion, the loss of wages is not the sole element of calculation. Still more is due to the bodily suffering, the consequences of the injury, but which by no means was so serious as befell this unfortunate pursuer on the second occasion.

The pursuer acquiesced, but the defender appealed on the amount of damages, whereon the Sheriff pronounced the following Interlocutor:

Edinburgh, 14th June, 1864.-The Sheriff having considered the defender's appeal, proof, and whole process, dismisses the appeal, affirms the Interlocutor appealed from, and decerns. NOTE.-The proof of the injuries sustained by the pursuer is rather meagre, but there is no counter proof which affects the question. There do not appear to be grounds for taking a different view from that given effect to by the Sheriff-Substitute as regards the amount of damage, taking into account the bodily suffering and weakness caused by the injury.

10TH JULY, 1864.

SHERIFF COURT, PERTHSHIRE-PERTH. (DR BARCLAY.)

J. C. DRUMMOND v. KIPPEN. Citation-Domicile-Execution-Improbation.-A citation was left for a party at a place which, in the officer's execution, was declared to be his dwelling-house. This was denied, and a proof allowed. It was found on proof not to be his dwelling-house; the action dismissed, but in the circumstances no expenses were found due to either party.

117

Where an execution is defective on its face, it is tantamount to no execution, and may be set aside in the local Court. Where the execution is alleged to be forged, then this may be inquired into by the local Judge, and set aside if forgery be But where an execution is formal and authentic, proved. and the defence is taken that it is false in its statements, then such plea can only be made good by a regular action of reduc. tion and improbation. The pursuer's procurator urged that the present case came under the last class, and that the officer's execution, setting forth that the citation was given at the defender's domicile at Tombuie, cannot be set aside except by reduction. For this doctrine he founded upon the first part of Lord Cunningham's Note in the case 21st June, 1843, M'Donald v. Sinclair. At the hearing, the Substitute remarked that he could not adopt that doctrine without farther authority, as it appeared to him to throw an extraordinary power into the hands of an officer to declare the jurisdiction to which a party should be subjected. He has since been gratified by finding from the reports of the case that Lord Cunningham's doctrine upon this point was repudiated by the In fact, the objection does not rest so much whole Court. against the citation and execution, as to the libel and warrant to cite. And it appears monstrous to hold that if a pursuer chooses to designate a party as residing at a particular place, and the officer cites him there, that then there must be jurisdiction.

The pursuer founded almost entirely upon the case M'Donald v. Sinclair, but in that very complicated case, first, the action was a real action of removing against three joint tenants, two of whom resided in the farm-house; and second, that the third tenant, although teaching a school not far distant, and in the same jurisdiction, yet the farm-house was proved to be at least one of his domiciles.

The case, 23d November, 1830, Scott v. Anderson, is a strong authority on the other side-First, it was an action in the Small Debt Court, where all review is excluded; second, the defender was personally cited; and third, he had been residing for a few days with his mother, in a house his own The Substitute has property, and in which he was cited. some recollection of having discovered that the claim was in reference to that property, although this does not appear in any of the reports.

It may be argued that the present action is competent in

See the case Wallace & Douglas v. Lochhead, pp. 99, this Court, because that the wages arrested were for services

100, supra.

In an ordinary action decree was allowed to go in absence. On its coming to the defender's knowledge, he lodged a reponing note, and objected that he had no domicile where he understood the citation had been left for him. It was answered that this was a defence really involving an improbation of the execution, and thus was incompetent in the Sheriff Courts. This was repelled, and a proof allowed of the fact of domicile. After a proof, the Sheriff-Substitute pronounced the following Interlocutor:

within the jurisdiction; but which is very doubtful, because
The decision, however,
the action is strictly a personal one.
inept citation.
is put not on the want of jurisdiction, but entirely upon an

The pursuer's procurator argued strongly for the expense of
extract and charge being awarded under the late Sheriff Court
Act. He founded his claim upon the correspondence quoted
in the record; but where the citation has been found erroneous,
it scarcely would be competent to allow any expenses follow-
ing thereon. But, under the whole circumstances, there does
not appear sufficient grounds for awarding costs to the
defender.
Alt. SOUTAR, Crieff.

Act. IRONSIDE.

12TH JULY, 1864.

Having heard parties' procurators, and the pursuer having declined any farther proof, but rested her case entirely on the admissions and documentary evidence in process, and having made avizandum therewith, Finds it proved that the defender, Duncan Kippen, at the time of citation to this action, had a domicile in Edinburgh; and finds it not proved that he had a domicile at Tombuie, where the citation was left for him; therefore repones the said defender against the decree in absence; dismisses the action; reserv- KIRKWOOD (Inspector of Govan) v. WYLIE (Inspector

ing a new and competent action, as accords: Finds, under the circumstances, that the pursuer is not entitled to the expense of extract and charge; but, on the other hand, Finds no expenses due to the said defender, and decerns.

NOTE.-A party may have several domiciles, at any one of which he may be legally cited to answer to the Courts of the A party may be also several jurisdictions in which situated. amenable in certain causes to the jurisdiction of a Court within the territory of which he does not reside; but, in that case, he must either be cited personally, within the territory, or outwith thereof, either personally, or at his domicile, under the proper indorsation.

SHERIFF COURT, RENFREWSHIRE-PAISLEY, (SHERIFFS FRASER AND CAMPBELL.)

of Lochwinnoch.)

Pauper-Settlement.-A pauper was born in the parish of L. He resided in the parish of G. for four years and four months, and died. His widow and children continued to reside in the parish of G. for upwards of three years without becoming paupers. They thereafter became chargeable. G. gave relief, reserving claim from L. In an action by G. against L., held (by the SheriffSubstitute) that continued residence of the wife and H2*