the part of M'Laren & Co. I give them full credit for not desiring to secure an undue advantage to themselves at the expense of others who were their rivals in this distribution of the bankrupts' estate. I believe that they acted simply from the reason that they themselves put forward, that they believed that the bankrupts' estate, if worked out, would give a greater dividend than the composition that was offered, and that they accepted this sum of money, therefore, in the conviction that they received only that which was their due, or somewhat less than their due, and that they did it merely because the long delay which might otherwise occur in the final distribution of this estate might be injurious to the smaller creditors who were less able to wait for the ultimate dividend than they themselves might have been. But it is important that these enactments, which are passed to secure commercial morality and fair dealing between creditors, should not be in any respect impaired or modified or reduced in their wholesome application by arriving at subtle distinctions or by indulging in views for the purpose of avoiding the operation of the statute. It is our duty to apply these enactments, and although in this case we exonerate the parties from having acted with any malus animus in the matter, still they have brought themselves within reach of a wholesome law; and it is our duty to apply that law without any compassion or any attempt to mitigate its application. Upon these grounds, my Lords, I concur in the motion of my noble and learned friend on the Woolsack.

LORD COLONSAY-My Lords, I participate in the regret which has been expressed by my noble and learned friend who last spoke, but I am compelled to arrive at the same conclusion at which your Lordships have come. I have a strong opinion that the motive of these gentlemen was such as my able and learned friend who last spoke has ascribed to them, and not any intentional violation of the law, but I cannot accept that as any excuse in this case. The only point of any real difficulty

that has been made here has been with reference to the introduction of the words "unless cause be shown to the contrary." As to that I think it enough to say that I concur in the views which have been already expressed as to the import of that clause, and I see various grounds on which cause might be shown, although I cannot put the construction

upon those words which the judges in the Court below have put on them. The case is assumed to have been completely and fully made out in the first instance. The trustee must prove his case; he must prove the agreement which is prima facie an offence against the statute. But there may be rebutting evidence produced. The other party may show cause that that is not necessarily the case, and therefore I cannot accept the construction put on this phrase by the judges; I therefore concur in the judgment proposed by your Lordships.

SIR ROUNDELL PALMER-Perhaps your Lordships will allow me to remind you, before judgment is pronounced, that the costs have been actually paid. In the order which your Lordships will pronounce on the present occasion you will doubtless provide for that in the usual manner.

LORD CHELMSFORD-Yes, I think that will be right.

LORD CHANCELLOR-My Lords, the question which I have to put to your Lordships is,—to reverse the interlocutors complained of, of the Lord Ordinary and of the Court of Session, and to declare that the Court of Session ought to have found that the respondents had forfeited the debt claimed by them on the sequestrated estates, and to have ordered them to pay to the appellant double the amount of the payment made to them, the respond ents, in the petition mentioned. And that the costs which have been paid by the appellant ought to be repaid to him, and with this declaration to remit the cause to the Court of Session.

LORD WESTBURY-You do not ask for the expenses of the petition, do you?

SIR ROUNDELL PALMER-As the matter will be remitted to the Court below, I presume that that would follow as a matter of course, according to the course of the Court. No doubt I should have asked for them if it were necessary.

Mr ASHER-There is no power under the statute to award costs.

Agents for Appellant-Waddell & M·Intosh, W.S.; and Simson & Wakeford, Westminster.

Agents for Respondent-Murdoch, Boyd & Co., S.S.C.; and William Robertson, Westminster.

SPRING CIRCUIT.

PERTH.

Tuesday, April 11.

WILLIAM CRUMLEY.

(Before Lords Neaves and Ardmillan.) Crime-Special Defence-Relevancy.

William Crumley was charged with an offence under the Registration Act (17 and 18 Vict. c. 80), in so far as he caused the births of two illegitimate children, of whom he was the reputed father, to be registered as legitimate.

The panel pled not guilty.

A jury having been ballotted and sworn, a special defence which had been previously lodged was read: "The panel is to plead that he was married according to the law of Scotland to the mother of the children prior to the date of the birth of either of the children, and that the entries were correct."

LANCASTER, A.-D., for the prosecution, objected to the defence being received, as not being sufficiently explicit; Hume ii, 301; Gairdner, 2 Swinton, 180.

(Before Lords Neaves and Ardmillan.) Salmon Fisheries (Scotland) Act 1868-ComplaintClose Time-Rod. A complaint against a fishmonger for exposing for sale a salmon caught with rod and line after the commencement of the close time for nets, but within the lawful season for rod-fishing, dismissed.

This was an appeal from a judgment of the Sheriff-Substitute of Perthshire (BARCLAY), dismissing a complaint at the instance of the clerk of the Tay District Fishing Board against James Shepherd, fishmonger, Perth, charging him with a contravention of the 21st section of the Salmon-Fisheries (Scotland) Act 1868 (31 and 32 Vict. c. 123), which imposes a penalty not exceeding £5 on any person who shall buy, sell, or expose for sale, or have in

his possession, any salmon taken within the limits of the Act between the commencement of the latest and the termination of the earliest annual close time which is in force at the time for any district. The facts as found by the Sheriff were that Shepherd had, on the 8th of October, exposed for sale a salmon taken with the rod on the 5th of October, which date was between the commencement of the latest and the termination of the earliest annual close time for nets, but within the lawful season for rod-fishing, which, under the Act of 1868, closes on 10th October. The Sheriff held that the 21st section did not prohibit the sale of salmon lawfully taken with rod and line. Blair appealed.

J. P. B. ROBERTSON, for him, argued that the section imposed the penalty on the sale of salmon within "close time," which unquestionably meant the time when, under the Act, the nets are off, and that there was no exception in favour of salmon taken with rod and line in the extended period for rod-fishing.

The Court were of opinion that the interpretation sought to be put upon the statute by the appellant would amount to a withdrawal of the statutory privilege accorded to rod-fishers. It was in effect saying that they might hook a fish in the river, but if they have it in their possession they were liable in a penalty. It was said that the sale, or offering for sale, of salmon after the close of the net-fishing was a violation of the Act. But the statute placed upon an equal footing these three things-sale, offering for sale, and having in possession.

The appeal was accordingly dismissed.

INVERNESS.

Tuesday, April 25.

H. M. ADVOCATE V. THOMAS FORGAN. (Before Lord Neaves.) Crime-Indictment-Relevancy-Fraud. An indictment charging fraud of a peculiar kind found irrelevant, in respect that the minor proposition did not correspond with the major. Thomas Forgan was charged under the following indictment:

"Thomas Forgan, now or lately prisoner in the prison of Inverness, you are indicted and accused, at the instance of George Young, Esquire, Her Majesty's Advocate for Her Majesty's interest: That albeit, by the laws of this and of every other well-governed realm, fraud, particularly the fraudulent use of a bill of exchange by one of two drawees, to whom the said bill was addressed by the drawer and indorser of the same, by his

delivering the said bill as a document of debt, and for the purpose of being discounted, with only his own acceptance on the said bill, the said bill having been drawn for his accommodation and indorsed by the drawer, and given to him by the drawer and indorser on the condition that he should not discount the same, or procure it to be discounted, or in any way use it as a document of debt unless it should be accepted by both the drawees to whom it is addressed, is afcrime of an heinous nature and severely punishable: Yet true it is and of verity, that you the said Thomas Forgan are guilty of the said crime, actor, or art and part, in so far as you, the said Thomas Forgan having, on or about the 3d day of August 1870, or on one or other of the days of that month, and at or near South Ballachulish, in the united parish of Lismore and Appin, and shire of Argyll, induced Alexander Campbell, coach proprietor, then and now or lately residing at or near South Ballachulish aforesaid, to draw a bill for your accommodation for the sum of £200 sterling, addressed to you the said Thomas Forgan, and Robert Chrystal, merchant, then and now or lately carrying on business and residing at or near Charing Cross, in or near Sauchiehall Street of Glasgow, as drawees of the same, on the condition and undertaking by you that the said bill should not be discounted by you the said Thomas Forgan, or delivered for the purpose of being discounted, or in any way used as a document of debt by you, unless the said Robert Chrystal should accept and should adhibit his name as acceptor of the same; and the said Alexander Campbell, on or about said date, at or near South Ballachulish aforesaid, having drawn a bill of exchange in the following or similar terms:

'Balchulish, 3d August 1870. Three months after date pay to my order at the National Bank, Oban, Two hundred pounds stg. 'A. Campbell

'To

'Thomas Forgan, Esq., ' and

'Robert Chrystal, Esq., 'Charing Cross, 'Glasgow,'

and having blank indorsed and delivered the same to you for your accommodation, and on the express condition and undertaking by you that the said bill should not be discounted by you the said Thomas Forgan, or delivered for the purpose of being discounted, or in any way used as a document of debt, you did, nevertheless, on the 19th day of September 1870, or on one or other of the days of that month, or of August immediately preceding, or of October immediately following, in or near the office or premises in or near Academy Street of Inverness, then and now or lately occupied by the firm of Anderson & M'Donald, solicitors, then and now or lately carrying on business there, in the knowledge that the said Robert Chrystal had refused to accept the said bill, and after you had, time and place to the prosecutor unknown, inserted the figure '2' before the figure 3' in the date of said bill, and cut off or otherwise removed from the said bill the address of the said Robert Chrystal, which had been written on the said bill to the said Robert Chrystal by the said Alexander Campbell at the time of drawing the same, wickedly, feloniously and fraudulently deliver the said bill, accepted only by you, and without the acceptance of the said Robert Chrystal thereupon, to James An

derson, one of the partners of said firm, or to James Mollison, then and now or lately residing at or near Dochgarroch Lodge, in the united parish of Inverness and Bona and shire of Inverness, and then and now or lately factor for Evan Baillie, Esquire of Dochfour, as a document of debt, and for the purpose of the same being discounted, and the proceeds of the same being applied in payment of a debt due by you to the said James Mollison for behoof of the said Evan Baillie; and the said bill having been discounted by the said James Mollison in the office of the Caledonian Banking Company in Inverness, and having become due, and you the said Thomas Forgan being unable to pay the same, the said Alexander Campbell has been called upon, as drawer and indorser of the bill, to make payment of the same, and the said Alexander Campbell has been thus defrauded by you."

MACKINTOSH, for the panel, objected that what was set forth in the major premiss was not a crime known to the law of Scotland. It was not suggested that there was any fraud in obtaining the bill, nor in the major was there any suggestion of fraudulent alteration, though there was something of that kind in the minor. What was set forth in the major was only a breach of agreement. Criminal law could take no cognisance of it. In the case of a bargain honest misunderstanding was possible and it would be the height of injustice to try the question with one party in the dock and the other in the witness box. In this case the alleged crime was the violation of a certain condition made by certain parties; everything turned on the construction of what passed, and the parties might take different views, and yet it was proposed to punish the prisoner if he was mistaken. Again, if there was a crime at all, it was not fraud, but misappropriation, or breach of trust.

LANCASTER, A.-D., for the prosecution, argued that it was too much to say that no breach of contract could be a crime. The case was this:-The party gets a document, in the use of which he is bound down by a distinct agreement, and he deliberately and fraudulently breaks that agreement. There were cases where a breach of agreement could be criminally charged-for instance, fraudu lent breach of agreement by a man delivering adulterated meal when he had undertaken to deliver good meal. The criminal element was not the delivering of the adulterated meal in itself, but the delivering of it when he had undertaken to deliver good meal.

LORD NEAVES found that the indictment was irrelevant, but not exactly on the grounds above stated. He did not at present pronounce an opinion on the general matters raised by Mr Mackintosh, some of which were important. He had no doubt whatever that the elements set forth in the indictment were such as a criminal charge could be made out of, but the charge might be much better and more clearly put. He could quite see that in general a mere breach of contract was not necessarily a crime; even in the case of the adulteration of meal the crime did not depend on breach of contract, but upon the fact that an article was delivered as genuine when it was adulterated, which was plainly a fraud. In the present case it was alleged that the accused had mutilated this bill; and if he did so as alleged he really com mitted forgery. When a man signed a document and the person to whom he delivered it mutilated that document, so as to alter the position of parties

on the document, he thereby committed forgery as much as if he signed a name. This bill was signed for two acceptors, and no man would have taken it without the two acceptors having accepted it. In this case only one man accepts it, and does not leave the other to stand on the bill as drawee without acceptance, because if any banker had discounted such a document, a complete defence would have been afforded that the bill was imperfect. Campbell puts his name, according to the libel, to a document with two drawees; the prisoner turns it into a document with one drawee, and in that way represents it as a complete document when it was not complete. That was a thing that should not be incidentally introduced into the minor, but was itself a most serious offence. At present, however, the minor proposition did not correspond with the major. He, therefore, threw out the indictment, on the ground that there was no statement in the minor sufficient to support the circumstances set forth in the major proposition of the document. The ADVOCATE-DEPUTE-That being the ground I shall move for leave to desert the libel pro loco et tempore.

LORD NEAVES-There is no use in that; I must dismiss the panel from the bar.

GLASGOW.

Wednesday, May 3.

H. M. ADVOCATE V. GEORGE GIBB.
(Before Lord Cowan.)

Indictment-Relevancy-Breach of Trust and Embezzlement. Where the manager of a flour mill belonging to an incorporation of bakers was charged with "breach of trust and embezzlement," on the ground that he had appropriated to his own uses and purposes certain bags of flour. Objection (1) that the total amount of grist intrusted to him, out of which the quantity said to have been embezzled was taken was not stated; and (2) that the names of the customer or customers to whom it belonged were not given-Repelled, on the ground that a sufficient statement was made to support the charge in the indictment against a person in the position of the panel. The indictment in this case was as follows:"That albeit, by the laws of this and of every other well-governed realm, breach of trust and embezzlement, as also theft, are crimes of an heinous nature, and severely punishable; yet true it is and of verity, that you the said George Gibb are guilty of the said crimes, or of one or other of them, actor, or art and part; in so far as you the said George Gibb having been for a period of four years and upwards or thereby immediately preceding the 9th day of February 1871, or the greater part of said period, in the employment of the Incorporation of Bakers in Glasgow, as manager or head miller at the flour mills belonging to or occupied by the said incorporation, and called or known as Clayslap Mills, situated at or near Clayslap, Anderston, in or near Glasgow, and it being your duty, and according to your trust as manager or head miller foresaid, faithfully to deliver to customers of the said incorporation the whole flour, thirds, and bran, being the produce of wheat sent by such customers to the said mills for the purpose of being ground, and not to appropriate any part

of such produce to your own uses and purposes; Yet nevertheless you the said George Gibb did during the period above libelled, fail to deliver to several or one or more of the customers of the said incorporation the flour, thirds, and bran, afterwards more particularly libelled, being the produce, or part of the produce, of wheat sent by such customer or customers to the said mills to be ground as aforesaid, and did (1) on or about the 24th day of August 1867, or on one or other of the days of that month or of July immediately preceeding, or of September immediately following, within or near the said mills, wickedly and feloniously, and in breach of the trust reposed in you as aforesaid, embezzle and appropriate to your own uses and purposes twenty-seven or thereby bags of fine thirds, and thirty or thereby bags of bran or part thereof, the same being of the value of £21 sterling or thereby, and the property of some customer or customers of the said incorporation to the prosecutor unknown, and being the produce, or part of the produce, of wheat sent by such customer or customers to the said mills for the purpose of being ground, or the same being the property or in the lawful possession of the said Incorporation of Bakers, or of James Bain, baker in Glasgow, the then deacon, and Hugh Bain, residing in New City Road, Glasgow, the then collector, both of the said incorporation and as representing the same, or of the members of said incorporation: Or otherwise, time and place above libelled, you the said George Gibb did wickedly and feloniously steal and theftuously away take the said twenty-seven or thereby bags of fine thirds, and thirty or thereby bags of bran, above libelled, or part thereof, the same being the property of some customer or customers of the said incorporation to the prosecutor unknown, and being the produce, or part of the produce of wheat sent by such customer or customers of the said incorporation to the said mills for the purpose of being ground as aforesaid, or the same being the property or in the lawful possession of the said incorporation, or of the said James Bain, the then deacon, and the said Hugh Bain, the then collector, both of the said incorporation, and as representing the same, or of the members of said incorporation."

There then followed two or three other counts of a similar nature, and expressed in the same terms. The fifth count was as follows:-"Likeas (5) John Anderson, then and now or lately storekeeper at the said mills, having on or about the 12th day of January 1871, on the order of the firm of D. & G. Black, bakers and flour merchants, Kirk Street, Calton, Glasgow, given over or delivered from the store or granary at the said mills to the grinding department at the said mills, a grist, consisting of 816 bolls or thereby of wheat, belonging to the said firm of D. & G. Black, for the purpose of the same being ground, and the produce thereof delivered to the said firm of D. & G. Black, and the said quantity of wheat having, on or about or shortly after the said last-mentioned date, been ground at the said mills, and it being your duty, and according to your trust, to deliver the whole of the produce of the said wheat to the said firm of D. & G. Black; yet nevertheless you, the said George Gibb, did fail to deliver to the said firm of D. & G. Black the whole produce of the said wheat belonging to them as aforesaid, and did, on one or more occasions between the 12th day of January and 3d day of February 1871, the parti

cular time or times being to the prosecutor unknown, within or near the said mills, wickedly and feloniously, and in breach of the trust reposed in you as aforesaid, embezzle and appropriate to your own uses and purposes ten or thereby bags of flour, of the value of £21 sterling or thereby, the property of the said firm of D. & G. Black, and being part of the produce of the said 816 bolls or thereby of wheat belonging to them as aforesaid, and then in the lawful possession of the said incorporation, or of the said John M-Farlane, the then and present deacon, and the said Hugh Bain, the then and present collector, both of the said incorporation, and as representing the same, or of the members of said incorporation or otherwise, time and place last above libelled, you, the said George Gibb, did, wickedly and feloniously, steal and theftuously away take the said ten or thereby bags of flour above libelled, or part thereof, the property of the said firm of D. & G. Black, and being part of the produce of the said 816 bolls or thereby of wheat ground at the said mills as aforesaid, and then in the lawful possession of the said incorporation, or of the said John M'Farlane, the then and present deacon, and the said Hugh Bain, the then and present collector, both of the said incorporation, and as representing the same, or of the members of said incorporation." The sixth

charge was of a similar nature, and in the same terms.

LANG, for the panel, objected that the three first charges of the libel as framed were not relevant, as the whole amount of the grist intrusted to the panel on each occasion was not specified, nor was it even stated that the amount was unknown to the prosecutor. It was essential to a charge of embezzlement of part of a sum or amount intrusted to the accused that the total amount of the subject trusted, where known to the prosecutor, should be stated in the libel, and that, where necessarily unknown, that fact should be stated. This had been recognised by the framer of the present indictment in its fifth and sixth special charges, which also libelled the embezzlement of portions of grist intrusted to the panel on special occasions, but which stated the amount so intrusted to him on each occasion. It was also necessary that the Court should know what proportion existed between the whole amount of the trust and the part alleged to have been embezzled, as upon this proportion might depend to a great extent the nature of the crime. See Hume, ii, 190. LORD COWAN repelled the objection, observing -I do not think this objection well founded. In regard to the first, second and third charges in this indictment, the case stands thus:-The prisoner is averred to have been manager of a mill belonging to an incorporation, and the statement is to the effect that the grain belonged to the incorporation, or to some customer or customers of the incorporation to the prosecutor unknown. The prisoner, as manager, is charged with having in each case appropriated a specified number of bags of flour and bran to his own purposes. It is not known to what particular person or persons the flour and bran in the bags so appropriated by the prisoner belonged, and accordingly the indictment says-(His Lordship then read from the first count as quoted above). That statement is in my opinion sufficient. The grain was intrusted to the prisoner, and so far as he was concerned it was the property either of the corporation or of its customers who had intrusted him with it, for the purpose of being ground. It

is averred that a certain quantity was not redelivered, and that is, I think, amply sufficient in a question of embezzlement. The difference in the fifth and sixth charges arises from the fact that the customers who sent the grist to be ground are known, as also the quantity of grist sent, and their names and the said quantity are accordingly set forth. The prisoner can suffer no prejudice from this not having been done in the first three charges, for if it is not proved by the evidence that he appropriated the quantities of flour and bran specified in these charges, he will be entitled to be acquitted as to them.

The case went to trial, and after evidence had been led for the prosecution and defence, the Advocate-Depute withdrew the fifth and sixth charges.

The panel was found guilty of the first four charges and sentenced to nine months' imprisonment.

Thursday, May 4.

BIRRELL AND M'CAIG V. BUCHANAN. (Before the Lord Justice-Clerk and Lord Cowan.) Small Debt Appeal-1 Vict. c. 41, 3, and Relative Schedule. Circumstances in which it was held that it was no objection to the competency of a small debt summons, and no deviation in point of form from the statutory enactments such as could prevent substantial justice from being done, and therefore no good ground of appeal, that neither the summons nor the ac count annexed specified the title to sue or the date of the cause of action, or gave a very explicit statement of the grounds of action. This was an appeal against a judgment of the Sheriff-Substitute of Lanarkshire (SPENS), in the following circumstances:-Mrs Ann Taylor or Buchanan, wife of Thomas Buchanan, 6 Battery Place, Rothesay, and the said Thomas Buchanan for himself and as administrator-at-law for his said wife, sued Messrs Birrell & M Caig on a small debt summons to which was appended an account in the following terms:-"1870. August 1-To 1 quarter's rent of a dwelling-house in 103 Dundas Street, Kingston, Glasgow, occupied by William Scott senior, due at this date in consequence of you or officers in your employment having removed the hypothec from said premises, thereby depriving us of our legal rights."

On the case being called in the Small Debt Court at Glasgow, on the 17th day of October 1870, the defender objected that the summons did not disclose a title to sue, and that neither it nor the account contained sufficiently explicit statements of the ground of action. The Sheriff-Substitute having repelled these objections and decerned in favour of the pursuers, the present appeal was taken.

BRAND, for the appellant, argued that the pursuers did not specify in their summons what title they had to sue, or how or when they had been de prived of their legal rights, nor the period for which the rent was due. By schedule A appended to sec. 3 of the Small Debt Act it was required that the origin of debt or ground of action, and whenever possible the date of the cause of action, should be inserted in the summons; and although it had been held that these might be competently inserted in an account to which the summons made reference, even this had not been done in the present

case.