to prevent it from crying, and thereby killed it; and that she concealed the body in a box, where it was afterwards found. The appearance of the body corroborated these statements. It was also proved that accused had performed her domestic duties up to the date of her confinement without showing any signs of mental aberration.

For the defence medical evidence was led to prove that child-birth, especially a first confinement, and when no due preparation was made, was frequently the cause of great mental disturbance amounting to insanity. There was, however, no evidence that the confinement of the accused had been of a specially difficult or painful character.

The Advocate-Depute asked for a verdict of guilty of murder.

For the accused it was argued that the evidence showed that she was insane at the date of the crime charged, or that, if not actually insane, she was in a state of such mental agitation as would justify a verdict of culpable homicide instead of murder Dingwall, September 19, 1867, 5 Irv. 466; Granger, September 13, 1878, 4 Coup. 86.

LORD M'LAREN in charging the jury, after stating the import of the evidence, said: In the case of Dingwall Lord Deas went very carefully and elaborately into the subject of partial insanity as bearing on criminal responsibility, and his direction to the jury was to this effect, that where the mind of a man had been permanently weakened by alcoholic indulgence, so that he was incapable of resisting homicidal impulses, that was a circumstance which might be taken into consideration for the purpose of reducing the crime from murder to culpable homicide. It was my misfortune to have to consider a very painful case of this nature— a case where the partial mental derangement was due to a different cause; it was in fact the result of a system of persecution and maltreatment to which the man had been subjected by his fellow-workmen. In that case I advised the jury that a man whose mind had been unhinged by a long course of brutal treatment, and who suddenly turned on one of his oppressors, has not necessarily to be regarded as a wilful murderer. The state of his mind was not such as to render him irresponsible to the the law, but the jury are entitled to consider the state of the man's mind and his imperfect power of resisting the impulse in determining whether he was responsible as for a murder or only for the second degree of homicidal crime. The view suggested was taken by the jury, and a verdict of culpable homicide was returned. In the present case I fail to see anything in the history of this girl that leads me to the belief that she was either wholly or partially insane at the time of her confinement. Up to that time her conduct had been that of any ordinary servant, entirely satisfactory to her mistress. She was not eccentric or peculiar in her behaviour. The only thing in fact that attracted the attention of her mistress was

the state of the girl's health, as to which she showed some anxiety. Then you will consider whether the history of this case, and especially the amount of physical exertion the girl was able to undergo on the day after her confinement, is consistent with the theory that this was a case of very difficult or painful labour, such as might have resulted in temporary unconsciousness after giving birth to the child. All that was said on that subject, I think, by the two doctors who were examined for the prisoner-Dr Carswell and Dr Oswaldamounted to no more than this, that she might have been suffering to a degree that would cause a state of frenzy; that it might have been a case of very painful labour, and also that these nervous attacks following on a confinement sometimes arise without any apparent cause. I think I may say that it would be very unsafe to found upon these "might be's' as reasons for treating the prisoner as a person not responsible for her actions. Neither Dr Carswell nor Dr Oswald was able to point to anything in the history of the case that specially marked it out as a case where mental derangement was at all likely to have taken place. But then it is of course a characteristic of every case of confinement, and I suppose in a special degree of the first confinement of a woman, that it is a period of very acute suffering, and you will have to consider this case not only as a question of guilty or not guilty, but the question also arises whether this is to be treated as a case of murder or of culpable homicide. It is a perfectly legitimate topic of consideration that according to the evidence the act was done immediately after delivery, and apparently without premeditation, at a time when the woman would be experiencing acute physical suffering, when she was alone and without assistance, and had apprehensions as to the disclosure of her condition; and that she may have been guilty of an attack upon the person of her child, which was illegal and criminal, and yet may have done so without realising an intention of taking the life of the child. I think the view which I have last presented to you is the practical issue in the case as you will have to consider it.

The jury found the prisoner not guilty on the ground of insanity.

Arbroath Par

28, 1896

COURT OF SESSION.

Thursday, May 28.

FIRST DIVISION.

[Sheriff of Forfarshire.

SEATON v. PARISH COUNCIL OF ARBROATH AND ST VIGEANS. Poor-Inspector of Poor-Union of Parishes -Local Government (Scotland) Act_1889 (52 and 53 Vict. cap. 50), sec. 51-Local Government (Scotland) Act 1894 (57 and 58 Vict. cap. 58), secs. 46 and 51-Order by Secretary for Scotland-Transference of Existing Officers to New Parish Council.

An Order pronounced by the Secretary for Scotland in terms of the Local Government (Scotland) Act 1889, sec. 51, and the Local Government (Scotland) Act 1894, sec. 46, uniting two parishes, and declaring that the officers and servants of the old parishes shall be transferred to the parish council of the new parish, is valid, both under the particular powers conferred by the Act of 1889, sec. 51 (f) read in conjunction with sec. 51 of the Act of 1894, and under the general powers conferred by sec. 51 (g) of the Act of 1889; and consequently the inspectors of poor of the pre-existing parishes continue to be the officers and servants of the parish council of the new parish.

Henry George Seaton raised an action in the Sheriff Court of Forfarshire against the Parish Council of the Parish of Arbroath and St Vigeans concluding for payment of £35, being three months' salary due to him.

The facts of the case were as follows:-In July 1889 the pursuer was elected inspector of poor and collector of poor and school rates by the Arbroath Parochial Board. He continued to discharge the duties of both offices down to 15th May 1895, when the Local Government (Scotland) Act 1894 came into effect. At the instance of the Town Council of Arbroath and other bodies, and after an inquiry had been held, the Secretary for Scotland, on 11th July 1895, pronounced an order under sec. 46 of the said Act uniting the parishes of Arbroath and St Vigeans. This order contained, inter alia, the following paragraph:-"(2) The Parish Council of Arbroath and the Parish Council of the now existing parish of St Vigeans shall cease and determine, and their whole powers, rights, duties, property, liabilities, debts, officers, and servants shall be transferred to the Parish Council of the parish constituted by this order."

On 16th July 1895 the defenders intimated to the pursuer that another person, the Inspector of St Vigeans, had been appointed inspector and collector for the united parishes, and expressed regret that the pursuer would be necessarily deprived of office. The pursuer replied by a statement of what he conceived to be his rights, and received in

answer an excerpt from a minute of a special committee of the united Parish Council to this effect:-"The committee unanimously resolved to recommend that Mr Seaton be allowed his salary in full up to the 15th day of August curt., both as inspector of poor and collector of poor rates, and that a sum of £250 be paid to him in addition as in full of compensation and all other claims, whether legal or equitable." This offer the pursuer declined to accept; and the defenders having refused to pay him his salary from 15th August, he raised the present

action.

The pursuer pleaded-"(1) The pursuer having as at the 15th day of May 1895 held office as inspector of poor for the parish of Arbroath and collector of poor and school rates, became by operation of section 50 of the Local Government (Scotland) Act 1894, an officer of the parish council of said parish. (2) Under section 51, sub-section 1, the pursuer and others similarly placed are declared to hold their offices by the same tenure, and upon the same terms and conditions as if this Act had not passed, and while performing the same duties shall receive not less salaries or remuneration, and be entitled to not less pensions (if any) than they would have received or been entitled to if this Act had not passed.' (7) The defenders as coming in room and place of the parochial board of the parish of Arbroath, and exercising the rating and other powers formerly exercised by the said parochial board, are liable in all obligations prestable against said board by all interested, and particularly to the pursuer for the sums sued for."

(5)

The defenders pleaded:-"(3) The pursuer's claim, if he any has, against the defenders, being one for compensation and not salary, the defenders should be assoilzied. The pursuer's contract of service having been terminated by the combined operation of the said Order and the Poor Law Act, no salary is due to the pursuer."

The Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50), sec. 51, enacts"On the representation of a county council or of a town council, the Secretary for Scotland may at any time after the expiry of the powers of the Boundary Commissioners by order provide for all or any of the following things :— . . . (d) for uniting several parishes or parts of parishes into one parish;... (f) for the proper adjustment and distribution of the powers, property, liabilities, debts, officers, and servants of any local authority, consequential on any consolidation, alteration of boundaries, or other act done in pursuance of this section; and (g) generally for doing any matter or thing whatever, whether similar or not to those above mentioned, which may be required or be expedient for the proper carrying into effect the purposes of this Act and the settlement of local differences."

The Local Government (Scotland) Act 1894 (57 and 58 Vict. cap. 58), sec. 46, enacts that "an order of the Secretary for Scotland under section fifty-one of the principal Act... for uniting several parishes or parts of parishes into one parish by the

as

creation of a new parish or otherwise. shall have effect for all purposes whether county council, justice, sheriff, militia, parochial board, parish council, schoolboard, local authority, or other save hereinafter provided. An order of the Secretary for Scotland under the powers conferred by section 51 of the principal Act, or this section, may, without prejudice to the generality of the aforesaid powers, provide for all or any of the matters specified in sub-sec. (6) of sec. 49 of the principal Act."

Section 50 of the same statute enacts that all existing officers and servants of a parochial board shall after the 15th May 1895 become the officers and servants of the parish council.

Section 51 (1) enacts that "the officers and servants of any authority who hold office at the passing of this Act, and who by or in pursuance of this Act become officers and servants of a parish council, shall hold their offices by the same tenure and upon the same terms and conditions as if this Act had not passed, and while performing the same duties shall receive not less salaries or remuneration and be entitled to not less pensions (if any) than they would have received or been entitled to if this Act had not passed."

On 22nd January 1896 the Sheriff-Substitute at Forfar (ROBERTSON) found that the action of the defenders in depriving the pursuer of his office of Inspector of Poor of the Parish of Arbroath was ultra vires and illegal; that the salary sued for was due; and therefore decerned against the defenders in terms of the conclusions of the

summons.

The defenders appealed to the Court of Session, and argued―(1) The amalgamation of the two parishes left no inspectors in existence, and consequently the Order of the Secretary for Scotland did not transfer the pursuer to the united parish. If it had, there would have been two inspectors jointly for one parish, which was illegal-Board of Supervision v. Glasgow Parochial Board, February 1, 1850, 12 D. 627. (2) The Parish Council of the united parish was entitled to choose the one inspector and to reject the other. Though the Poor Law Act 1845 (8 and 9 Vict. cap. 83), sec. 56, conferred the power of dismissing inspectors upon the Board of Supervision in certain cases, it contained nothing which took away the right of the parochial board, which appointed, to dismiss.-Board of Supervision v. Parish of Dull, June 9, 1855, 17 D. 827; Clark v. Board of Supervision, December 10, 1873, 1 R. 261, per Lord Shand, Ordinary; and Board of Supervision v. Parish of Old Monkland, January 17, 1880, 7 R. 469, referred to.

Counsel for the respondent was not called upon.

LORD PRESIDENT-It seems to me that the true ground of judgment in this case is to be found in the order by the Secretary for Scotland uniting the parishes of Arbroath and St Vigeans. I do not doubt that all that was done under this order, so

far as it relates to the present question, was validly done, and within the powers of the Secretary for Scotland. The second head of the order in plain terms declares that the whole powers, &c., of the two Parish Councils shall be transferred to the Parish Council of the new parish. Now, applying those general words to the case of the person in question, it is past doubt that this gentleman was an officer and servant of the old parish of Arbroath, and if so he is transferred to the new parish, and becomes one of its servants. What duties then has he to perform, and what rights has he in that quality? They can be none other than those he was performing and enjoying under his former master, and section 51 of the Act of 1894 seems to me directly to apply, because, speaking distinctly and solely of those officers who held office at the time of the passing of the Act, it says-"Nothing done by this Act," or done in pursuance of this Act, "shall alter the rights and duties of those officers." Accordingly, the order of the Secretary for Scotland, not in so many words, but in effect, did distribute the duties of the inspectors who were transferred to the new parish, because by transferring them and declaring them to be servants of the new board, it defined their duties by the necessary statutory effect of that clause. It defined their duties as being those which had been done before. There is nothing at all repugnant in that conclusion, because it is manifestly entirely inappropriate to say that there is any illegality in a parochial board having two inspectors of poor. All that the decisions which we were referred to say is, that it would be illegal for a parochial board administering the Act of 1815 to appoint two inspectors, except under the limitations stated under section 55; but it never did, and never possibly could, make it impossible for the Legislature to authorise a competent authority, charged with the duty of effecting a workable fusion of two parishes, to continue the services of two existing inspectors. That is what has been done here, and accordingly, in my opinion, the order for the Secretary for Scotland can be supported on the ground that it effects the distribution of the offices; but, further, the very general words in the Act of 1889, which are incorporated and referred to in the subsequent statute, would support what has been done, apart from that precise definition of powers. Now, if I am right in this view, we are taken clean outside the question about the power of a parochial board to dismiss an inspector of poor on other grounds than his fault, and for this reason that we have not here any arrogation by the new board of such a power. They have not considered whether this person should be dismissed from the office he holds. On the contrary, they have assumed, contrary to the law of the case, that the office was abolished. All that they have done is to assume that the office he held had gone by the board, and that they were debarred from doing anything else than to appoint to the office a sole inspector for the combined parishes.

Therefore nothing which I have said can be founded upon as affecting, one way or other, the rights of a parochial board, or a parish council in future in dealing with their inspectors of poor. I have no occasion to enter into the consideration of whether those officers hold office ad vitam aut culpam. The result is that the decision of the Sheriff should be affirmed.

LORD ADAM concurred.

That

LORD M'LAREN-I am of the same opinion. I see no reason to doubt that the order of the Secretary for Scotland is entirely in terms of and within the powers devolved upon that high officer by Parliament. Standing the order, it seems perfectly clear that the inspectors of poor of the preexisting separate parishes were transferred, i.e., their contract of service was transferred to the united parish. It may be that it is within the power of the united parishes to effect some distribution of the services and duties of these officers. may yet be arranged. I agree with your Lordship that there has been no attempt on the part of the new parish council to dismiss their officer. They do not claim to have dismissed him. In the record they express the opinion that his office had come to an end by force of the Act of Parliament in consequence of the union of the two parishes, and there could be no better proof that this was the view on which the parish council acted than this, that they made the pursuer an offer of £250 as compensation for the loss of his office. Such an offer would of course be an illegal application of the funds of the parish in the case of a person who had been lawfully dismissed. The case is really one of misapprehension of the true state of relations between the authorities of the new united parish and the officers of the preexisting separate parishes.

LORD KINNEAR concurred.

The Court affirmed the interlocutor of the Sheriff-Substitute.

Friday, May 29.

FIRST DIVISION.

WELCH'S EXECUTORS, PETITIONER. Right in Security-Transmission of Personal Obligation against Universal Legatee not being Heir-at-Law-Conveyancing Act 1874 (37 & 38 Vict. c. 94), secs. 12 and 47.

The 47th section of the Conveyancing Act 1874 provides that "subject to the limitation herein before provided as to the liability of an heir for the debts of his ancestor, an heritable security for money, duly constituted upon an estate in land, shall, together with any personal obligation to pay principal, interest, and penalty contained in the deed or instrument whereby the security is constituted, transmit against any person taking such estate by succession gift, or bequest, or by conveyance, when an agreement to that effect appears in gremio of the conveyance, and shall be a burden upon his title in the same manner as it was upon that of his ancestor or author, without the necessity of a bond of corroboration or other deed or procedure."

By section 12 it is provided that “an heir shall not be liable for the debts of his ancestor beyond the value of the estate of such ancestor to which he succeeds."

Held that the personal obligation in a bond and disposition in security transmits against a universal disponee, but that, although not heir-at-law, he is entitled to the benefit of the limitation of liability provided by section 12. In an action raised in the Court of Chancery of the County of Lancaster by the Edinburgh Life Assurance Company and others against the executors of the late Ralph Dalyell Welch, the Court, upon the motion of the defendants, ordered a case to be prepared and remitted to the Court of Session, in terms of 22 and 23 Vict. c. 63, for the opinion of the Court upon certain questions of Scotch law.

The facts as appearing from the case were as follows:-In 1870 Miss Robina Thoms was possessed of certain lands at Rumgally, Fifeshire. In that year she granted a bond and disposition in security for £10,000 over the estate of Rumgally, in favour of the trustees of Mr William Rutherford; and in the same year she granted another bond over the estate for the same amount in favour of the trustees of Mr James Richardson.

The two bonds were subsequently assigned to the Edinburgh Life Assurance Company. On the death of Miss Thoms in 1871, Charles Welch succeeded to the estate of Rugally, and he executed a bond of corroboration and disposition in security in favour of the holders of the two bonds, in which he narrated that "it had been agreed between the company and himself that the said sums of money should be and remain a debt and burden

upon him and his heirs and successors, and that the personal obligations contained in the said bonds and dispositions in security should subsist and be effectual."

Charles Welch died in 1894, leaving a disposition and settlement in the following terms:-"I, Charles Welch Tennent, of Rumgally and Pool, dispone and assign to my brother, Ralph Dalyell Welch, merchant in Liverpool, my whole estate, real and personal, wheresoever situated, and I appoint him my sole executor and universal legatee. . . . I recall all former wills and settlements, and declare this to be my last will and testament."

Ralph Dalyell Welch gave up an inventory of the moveable estate of his brother, and completed titles to the heritable estate by expeding notarial instruments in his favour in terms of the Titles to Land Consolidation Act 1868. He continued to pay the interest due to the company in respect of the two bonds on Rumgally.

Ralph Dalyell Welch died in 1895, leaving a will in English form.

An action was then raised against his executors by the company for payment of the bonds.

The plaintiffs in the said action contended that, under the circumstances stated, the said Ralph Dalyell Welch came under a personal obligation to pay to them the said sums of £10,000 and £10,000, and interest thereon, and that the defendants in the said action, as executors of the said Ralph Dalyell Welch, were liable to pay the said sums out of the estate of the said Ralph Dalyell Welch. The defendants in the said action, on the other hand, contended that the said Ralph Dalyell Welch did not come under any personal obligation to pay to the plaintiffs the said sums of £10,000 and £10,000, or any part thereof.

The question submitted for the Court of Session's opinion was:-"Whether, in the events which have happened, as hereinbefore stated, the said Ralph Dalyell Welch, became subject to the personal obligation to pay the principal moneys and interest secured by the said two bonds and dispositions in security, each for the sum of £10,000, or either of them, or any part thereof.

The executors presented a petition to the First Division craving their opinion upon this question.

Argued for petitioners (1) The disposition to their author was a "conveyance in the sense of the statute. Where a disponee did not require to make up his title derivatively through trustees, but did so directly from the testator, the bequest to him was a conveyance, and accordingly any personal obligation of his author, in accordance with the terms of the 47th section, transmitted only to a limited degree, i.e., if there was an agreement to that effect in gremio of the conveyance. The statute embraced not only onerous conveyances but a conveyance such as this. Accordingly, the personal obligation did not transmit. (2) The limitation in the first part of the section covered all the cases of "succession,

gift, or bequest," and was not confined to the case of an heir of line. Accordingly, under the 12th section the petitioners were not liable beyond the value of the estate to which they had succeeded.

Argued for respondent (1) The petitioners were liable beyond the value of the succession for the full amount of the bonds. The bequest was of the whole estate, and was taken by their author on a lucrative title. If they considered the estate would not fulfil this call, their remedy was to refuse to take up the succession. The case was ruled absolutely by the decision in Wright's Trustees v. M'Laren, May 23, 1891, 18 R. 841. The limitation in sec. 12 applied strictly to "heirs," and the use of the word was in its most technical sense, and it could not be held to include persons taking a universal gift under a gratuitous disposition-Bell's Prins. sec. 1695. Accordingly, a person taking such a bequest must know that he does so subject to the whole burdens of his author. (2) In any event the petitioners were liable for the whole benefit of the estate to which they had succeeded, heritable and moveable.

The Court returned the following answer -"By the law of Scotland, under the provisions of 37 and 38 Vict. cap. 94, secs. 12 and 47, the said Ralph Dalyell Welch became subject to the personal obligation to pay the principal moneys and interest secured by the said two bonds and dispositions in security each for the sum of £10,000, subject always to this limitation, that the said Ralph Dalyell Welch could not be made liable for the debts of the deceased Charles Welch Tennent (including the sums secured by the said bonds and dispositions in security) beyond the value of the estate to which he succeeded by virtue of the disposition and settlement of the said Charles Welch Tennent."

Counsel for the Petitioners-H. Johnston -Cullen. Agents-Kinmont & Maxwell, W.S.

Counsel for the Respondent-C. S. Dickson-Macfarlane. Agents - Mackenzie & Kermack, W.S.

Friday, May 29.

FIRST DIVISION.

[Sheriff Court of Linlithgow. M'KILLOP v. NORTH BRITISH RAILWAY COMPANY. Reparation-Master and Servant-Defective Plant-Liability of Railway Com pany Employing Competent Managers.

The employment of a competent staff of workmen and managers to whom the necessary authority is delegated, does not, ipso facto, relieve a railway company from all common law liability to its servants for injuries received by reason of defects in its system of working or in its plant.

In an action at common law for damages by the representatives of a