a mere title to "fishings." It was said that Colonel M'Barnct's title showed no grant from the Crown; but, however that might be in a question with the Crown, who was not appearing, and as to whom nothing was decided, there was title and possession sufficient to show that Sir John Stuart had no right to stop him. Held also, on the proof of possession, that Sir John Stuart had established his right to salmon-fishings from his own side of the stream. Expenses allowed to M'Barnet in the interdict process, and to neither party in the declarator. Act.-D.F. Moncrieff, Young, and Gordon. Agent W.S. Alt. Sol.-Gen. Gordon, Gifford, and Bulfour. and W. H. Sands, W.S. CUMMING V. BAILEY.-Nov. 27. Recal of Sequestration-Antedated Bill. James Steuart, The petitioning creditor in a sequestration produced as the ground of his debt a bill which, as it afterwards appeared, must have been antedated, because it was dated 17th August 1865, while the mark on the stamp on which it is written showed that it was not issued till November of that year. In a petition for recal of the sequestration this was the only ground of recal insisted on. Held, affirming judgment of Lord Kinloch, Ordinary, that the abstract ground on which the recal had been urged, the fact that the bill is antedated, was in itself no sufficient reason for recalling the sequestration. The petitioner did not ask for inquiry, and the question of the validity of the bill was not very much in point, for, even if it should ultimately be found invalid, that would not necessarily put an end to the sequestration. Act.-Young and W. N. M'Laren. Agent J. Barton, S.S.C.-Alt. -Cook and F. W. Clark. Agent-L. Mackersy, W.S. DAVIS v. HEPBURN.-Nov. 28. Proof-Onus-Sequestration-19 and 20 Vict. c. 79, s.s. 13, 30. Question whether, where Hepburn objected to a petition for his sequestration, that he was not, as set forth by the petitioning creditor, subject to the jurisdiction, not having for some years resided in Scotland; that he was not notour bankrupt, the execution of search produced bearing to be made at a place where he was not then residing; and that he had not within a year resided or had a dwelling-house in Scotland; the onus lay on Hepburn to prove his objections, or on the petitioner first to prove what was necessary to support his petition, under 19 and 20 Vict. c. 79, secs. 13 and 30, not decided. The Court remitted to the Lord Ordinary to allow both parties a proof of their averments, and to each a conjunct probation. Act.-Watson. Agents-Murdoch, Boyd, and Henderson, W.S. Alt.-Monro and Gifjord. Agents-Duncan and Dewar, W.S. Susp., H.M. ADVOCATE AND BARBOUR V. LANG.-Nov. 30. Crown-Prerogative-Immunity from public burdens. The Crown suspended a decree of the Dean of Guild Court, Glasgow, for payment of money expended under a warrant of that Court in repairing the foot pavement opposite the Barracks in Glasgow, maintaining that its prerogative exempted it from payment of all taxes. Cases were ordered. Authorities for Respondent: R. v. Archbishop of Armagh, 8 Mod. 6; R. v. Mags. of Inverness, 18 D., p. 366; for Suspender; Bacon's Abr. v. Prerogative, 5; Adv.Gen. v. Edinburgh Commissioners of Police, 12 D. 456; 11 and 12 Vict. c. 113; R. v. Cook, 3 T. R. 522: Att. Gen. v. Hill, 2 M. and W. 170; Trinity House v. Clark, 4 M. and S. 170; Adv. Gen. v. Garioch, 12 D. 447; Mayor of Weymouth v. Urquhart, 11 E. Jur. N.S. 466, &c. At advising, The Lord President said-The Glasgow Police Act (25 and 25 Vict. cap. 204) provides, sec. 322, that the foot pavements of streets shall be made and repaired by the adjoining proprietors, and on their default they may be repaired at their expense at the instance of the Procurator-Fiscal. This is a very primitive mode of effecting repairs. It is, however, the rule in Glasgow. If the Act had provided for such repairs by means of a general assessment, there is no doubt that the Crown would not have been liable. It is quite settled that the Crown is not liable for any tax or impost to which it is not expressly made liable by statute. The question arises here, Whether there is any difference in the law where the obligation is laid on each party to repair the pavement opposite his own property, and where he has nothing to do with the pavements in general? This obligation is not deducible from the titles: it is imposed on proprietors by an Act of Parliament, which makes no special mention of the Crown. I do not see sufficient ground to distinguish between an Act of Parliament directing a party to repair the pavement in front of his property under the pain of having it done by another at his expense, and one which imposes a general assessment for the purpose. I think, therefore, that the Crown is not liable. There may be inconveniences arising from this view, for the statute does not provide any means for getting the repairs done otherwise; but that must be regarded simply as an omission in the Act. Lord Currichill, after referring to the interpretation clause and the valuation roll made up under another statute, as showing that the Crown was the party liable by the Act as proprietor of the barracks, observed that the Crown had actually made the pavement, and now objected to be held liable to repair on the ground of its prerogative of immunity from payment of taxes. There was clearly such an immunity in Scotland. His Lordship had been at some pains to find out how it had originated. He doubted whether it had belonged to the Crown of Scotland before the Union. The 42d Geo. III. c. 116§131 for the redemption of the Land-tax, seemed to show that the Scotch Acts imposing that tax recognised no such exemption. Undoubtedly, however, that immunity was now a part of the established prerogative of the Crown; and he had come to be of opinion that it had become attached to the Crown by usage. The only question at present was whether an obligation ad factum praestandum of this description fell under the exemption. It was not an obligation to pay money. It was argued that, on failure to perform, a party must pay the expense of having it done; so that it was really a commutation-tax. He could not take that view. It was not a commutationtax any more than is the expense of rebuilding a church, where that has been done under the authority of the Presbytery, and the expense levied under a warrant from the heritors. Another peculiarity was that it was a duty which could alone and exclusively be performed by the proprietor of the lands and heritages adjoining, and if he did not perform it, it could be performed by no other. His Lordship could not see on principle how the duty imposed by the Act could fall within the immunity belonging to the Crown. All the cases on that point refer to money taxes alone. If that immunity rest on usage alone, it was admitted in this case that no such usage exists. Usage has been uniformly the other way. The Crown has always, in point of fact, defrayed the expense of making streets, &c., where the obligation has been imposed on the property. It was said the Crown was not expressly named in the statute. That was another matter established as a general rule by usage; and his Lordship referred to Dwarris, p. 525, to show that it was not a very stringent rule. Besides, though not named in the Police Act, the Crown was named in the Valuation Roll, to which the Act refers for the names of proprietors. Further, the tax was imposed on the Crown by necessary implication; for, if the duty of repairing were not performed by the Crown, it could never be performed by any other party whatsoever. His Lordship therefore differed. Lord Deas concurred with the Lord President. He could not say that all that belonged to the Crown in England belongs to the Crown in Scotland. For the Union was a union of two equal and independent States; and there would be just the same ground for saying that all that belonged to the Crown in Scotland before the Union should now belong to the Crown in England. The immunity in question had certainly been recognised since the Union by a series of decisions, and expressly in regard to local taxes in the case of the Lord Advocate v. Edinburgh Commissioners of Police, Jan. 22, 1850, 12 D. 456. There was no distinction between this case and a general assessment. The Crown was not liable for statute labour. The barrack-master was no more liable for personal service on the roads than he was to repair the pavement. Lord Ardmillan concurred. If the question had turned on the direct right to levy an assessment on the Crown, there was abundance of authority to support a decision in favour of the Crown. There was no difference in the law as to the extent of the prerogative of the Crown in this United Kingdom. Since the Union the law must be the same in Scotland as in England. The Crown's exemption from taxation, unless it is expressly named in the Act of Parliament, or has consented to take on itself the burden, was a most valuable constitutional prerogative, because it was the true counterpart of the right of the subject to be exempted from taxation, except such as has been imposed with his own consent. It was most important to preserve this equality in our nicely-balanced Constitution. Act.-A. R. Clark and Shand. Agents-Campbell and Smith, S.S.C. -Alt.-Sol.-Gen. Gordon and H. J. Moncrieff. Agent-W. Waddell, W.S. MORSON AND Co. v. BURNS.-Dec. 1. Waggon-builders sued a coal-agent for the price of waggons delivered. The defender ordered the waggons subject to a provision, "that in case of any dispute as to material or workmanship, the same shall be submitted to Mr Thompson, of Wishaw, who shall decide the case." They were sent from time to time up till March 1864; and from time to time the purchaser observed defects, as to which he wrote to the pursuers, but without proposing to return them, and while continuing to use them. Soon after receiving the last two, he forwarded a cheque for £500 to the pursuers, in a letter intimating his intention to get an examination by the referee in terms of the agreement, and finding fault again with the weight and quality of the iron used for the waggons. Three days later-8th April 1864-he stopped payment of the cheque, and wrote to pursuers that the referee had reported that none of the waggons were in terms of the specification, being lighter and of an inferior quality of iron. Some communings afterwards took place with a view to a settlement, during which it appeared that the referee stated his opinion that £3, 15s. should be deducted from the price of each. No settlement, however, was eventually arranged; and this action was brought. The Lord Ordinary (Barcaple) found that the reference related only to disputes which might arise as to materials or workmanship, and did not apply to a difference as to the construction or effect of the contract, and that the defence that the submission excluded the action fell to be repelled; that the defender having taken delivery and used the waggons, he was not entitled to any deduction in respect of an award by Mr Thompson, for the reference to him in no way extended the legal rights of the parties, but merely afforded a summary mode of determining the matter of fact; and that the defender had mistaken his remedy -which was to take immediate steps for returning the waggons as disconform to order. His Lordship, therefore, repelled the defences. The Court substantially adhered. The pursuers guaranteed the waggon springs for five years, the wheels for two years, and the general work for twelve months. If in the course of twelve months some or all of the waggons had broken down, and it had only then been discovered that the badness of the material was the real cause, the Court was not prepared to hold that the referee was not the proper party to determine what should be The case, however, was not in that position. The purchaser, who had all along been evidently acting in good faith, had unfortunately proceeded on a mistaken notion of his duty. It could not be held that the defects complained of were latent. They might have been discovered by examination on delivery, and the purchaser went on the assumption that he could use the waggons and still have the judgment of the referee.— [Note for reference.-Bell's Pr. 99, Com. I. 439; ed. Shaw 91; Ransan v. Mitchell, 7 D. 813; Padgett v. M'Nair, 15 D. 76.] Act.-A. R. Clark and Lancaster. Agents-H. and A. Inglis, W.S. -Alt.—Young and Mair. Agent James Finlay, S.S.C. MORRISON AND MILNE . MASSA.-Dec. 8. Jurisdiction-Reconvention-Merchant Shipping Act-Arrestment ad f.j. On January 17 1866, the Scotia, of Aberdeen, came into collision with the barque Ghilino, of Genoa. Injury was done to both vessels. Morrison and Milne, owners of the Scotia, sued Francesco Massa, as master and part owner of the Ghilino, against whom arrestments were used to found jurisdiction, for damages. The summons was signeted 26th and served 27th Jan. On 27th Jan., Massa raised an action in the name of Bartolomeo, owner of the Ghilino, against Morrison and Milne, for damages for the same collision. On 1st February Morrison and Milne raised against Bartolomeo a supplementary action, which was conjoined with that against Massa. This was an objection to the jurisdiction in the first action, on the ground that the ship was a foreign ship and Massa a foreigner. It was not now maintained that Massa was part owner of the Ghiliuo. The Lord Ordinary (Barcaple) sustained the jurisdiction. The defender reclaimed. Authorities cited for Reclaimer: Bell's Com. I. 387, Pr. '500; Ersk. III. 3, 43; 17 and 18 Vict. c. 104, § 527; Thomson v. Whitehead, 22 D. 344; Meikle v. Sneddon, 24 D. 720. Authorities cited for Respondents: Harvey v. Forrest, 1 D. 1137; White v. Spottiswoode, 8 D. 952; Bell's Pr. 2226; Abbott on Shipping, 116; Story on Agency, 116; Shields v. Davis, 6 Taunt. 65; Bell's Com. I. 507. The Lord President said-The summons is against Massa as master, and the attempt is to found jurisdiction against him, as representing the owners, by arrestment of a ship which is not his. But it is said you can't found jurisdiction against a foreigner by arresting what is not his. Morrison and Milne say the objection is not well founded on two grounds. (1) Reconvention. A question arose whether this was strictly reconvention, as there was no action by Massa when this action was raised. It is not necessary, however, to inquire critically or philologically whether reconvention is the proper name. On 26th Jan., the action was brought against Massa. Next day an action was raised by Massa and the owners of the Ghilino against Morrison and Milne for damages arising out of the same matter. The names of the owners of the Ghilino were not known when the action was raised by Morrison and Milne, but were disclosed by the second action. Thereupon, on 1st February, an action was brought by Morrison and Milne against Bartolomeo. Defences were given in by Morrison and Milne against the action by Bartolomeo and Massa. But defences were not lodged by Massa in this action till March. Therefore, by delaying, he gets Morrison and Milne to join issue in his claim, and now maintains that they are not entitled to have their claim of damages arising out of the same matter, investigated at all, because they had brought their action one day before his. That is altogether against the principle of reconvention, which is, that a party appealing to the jurisdiction of this Court makes himself also amenable to its jurisdiction, and eminently so on questions arising in regard to the same matter. It seems, on the whole, that parties are before the Court at the same moment asking it to investigate the same matter. Therefore, all parties interested are here appealing to the Court; and the subsequent repudiation by Massa in March will not relieve him from the consequences of his act on 27th January. The other answer to the objection to jurisdiction is that the original action against Massa was against him as representing the interests of the ship. It is said that this is an action against Massa as an individual. That raised a nice question; but it is not against him as an individual but as representing the ship in a matter of collision at sea. The statements are exactly what are required to make the owners liable. The Merchant Shipping Act provides, it is said, a different remedy, which is here the true remedy-viz., when a ship that is British property has been injured abroad, the foreign vessel liable therefor may be attached and detained when it is found in a British port till satisfaction is given or a security is found. Then action may be brought against the cautioner. That remedy is certainly given by the Act, but it does not interfere with the Court in considering the question whether the other remedy applies which is given by the law of Scotland. That new remedy was given, indeed, all over the king |