been decided. With regard to the Act 1621, c. 18, he had no difficulty. The evidence established the bona fides of the debt. The Act 1696, c. 5, enacted that all voluntary deeds granted within sixty days of bankruptcy in favour of creditors "either for their satisfaction or further security in preference to other creditors, should be void. Now if this Act was being construed for the first time, he should have little difficulty in holding that it did not apply to cases like the present. The granting of an acknowledgment of debt was no doubt "voluntary," but was not "in satisfaction" of a prior debt. Neither could it be said to be "in further security or in preference to other creditors." No preference was sought to be established here, but only a ranking as an ordinary creditor. If the statute only was to be looked at, there would be little difficulty. But it was said that it had been construed according to the contention of the appt., and, amongst others, that Bell (Com. II. 212, 213) laid it down that even a voucher or acknowledgment of debt granted within the sixty days was struck at. That was not Mr Bell's meaning, or the meaning of the dicta in the cases. The cases referred to by Mr Bell, as well as the more recent case of Wilson v. Drummond, 16 D. 275, were all cases of preferences direct or indirect, and therefore there was no necessity for assuming the extensive meaning here put upon them by appt.; but if such was the meaning of the authorities, then these authorities were wrong. The reclaiming-note should be refused, with this qualification, that so much of the sum claimed as interest, as applied to the interest accumulated in the bond, should be struck off the claim. So far as the bond accumulated principal and interest, it might be said to create a preference, and therefore he was for disallowing anything that followed from that accumulation.

Lord DEAS dissented, holding that under the Act 1696, c. 5, all deeds were struck at which might be used for the purpose of creating a preference; that this deed might have been used for that purpose, even if no preference was actually created; but further, that a preference was actually created by giving one creditor rather than another a document liquidating and constituting his debt.

Lord ARDMILLAN and Lord CURRIEHILL concurred with the L. Pres. Act.-Clark, Mr Watson. Agents-G. & J. Binny, W.S.-Alt.— Monro, Mackintosh. Agents-Hill, Reid, and Drummond, W.S.

HILTON V. WALKER.-July 2.

Process Judicial Reference-Expenses.

Hilton sued the Walkers, for some time tenants under him, for damages for miscropping. Parties agreed to a judicial reference to Smith, who awarded L.20 damages, but found the pursuer liable to defr. in L.50 of expenses in respect that the action ought to have been brought in the local Court, and not in the Court of Session. Pursuer objected to this award of expenses, mainly because parties had not been heard as to expenses, and that the expenses actually incurred were less than the sum awarded. The Court remitted to reconsider this part of the award; and after hearing parties, he simply adhered. Pursuer repeated his objections.

LORD CURRIEHILL said the objection was in substance that the referee did not take the assistance of the auditor in ascertaining the expenses to be awarded; and the pursuer moved to remit to the referee to do so now. Was that motion competent? He was of opinion that it was not, on the VOL. XI. NO. CXXVIII.-AUGUST 1867. 2 G

ground that, although this was a judical reference, yet in this respect it was the same as if it was an extrajudicial submission. There were some differences between a judicial reference and an extrajudicial submission. In a judicial reference, if there has been any irregularity, it may be rectified at any time before the award is affirmed by this Court; but with that exception, the powers of a judicial referee are as great, and can be as little interfered with, as the powers of a voluntary arbiter; and the referee having now done his duty by hearing parties, the Court cannot review his judgment on the ground that it is erroneous. It may be regretted that the referee did not take the assistance of the auditor, but he was quite entitled to deal with the matter of expenses at his own hand. He had in this matter the same powers as the Court.

LORD DEAS concurred.

LORD ARDMILLAN concurred with difficulty, regretting that the arbiter should have so dealt with the case.

The LORD PRESIDENT concurred with difficulty. Any gross abuse in such a matter could, however, be reached under the head of corruption. That was not alleged here.

No expenses to either party.

Act.-Young, Gifford. Agent-W. Scott Stuart, S.S.C.AU.— Pattison, M'Kie. Agent-James Somerville, S.S.C.

MOES, MOLIERE, & TROMP v. LEITH AND AMSTERDAM SHIPPING COMPANY.— July 5.

Bill of Lading-Exception of Breakage.

Action by merchants in Amsterdam against the registered owners of the steamship Ivanhoe. Issue, "Whether, on or about 15th Dec. 1865, pursuers shipped at Amsterdam, on board defrs'. s.s. Ivanhoe, a quantity of sugar, in good order and condition, to be conveyed in terms of the bill of lading contained in the schedule annexed thereto? and whether defrs., in breach of the contract between the parties failed to deliver said sugar in like good order and condition at the port of Leith-to the loss," &e? The bill of lading bore that 5453 loaves of refined sugar had been shipped “in good order and condition," and stated that the goods were "to be delivered in the like good order and condition at the port of Glasgow, the responsibility of the ship to terminate at Leith." The owners were not to be liable for all "accidents, loss, and damage whatsoever from other goods, by leakage, contact, or otherwise, from machinery, boilers, and steam, or steam navigation, or from perils of the sea and rivers, or from any act, neglect, or default whatever of the pilot, master, or mariners, in navigating the ship, or from materials or labourers in loading or discharging the goods; or for any consequences of these causes. After stating that the three bills were signed by the master, &c., this clause followed-"Weights, contents, measure, quantity, and value unknown, and not answerable for damage, leakage, lighterage, breakage, corruption, rust, torn wrappers, decay, or mortality, and the wrong delivery of goods caused by error, or by insufficiency in marks or numbers." The jury returned a special verdict, finding "that on or about 15th Dec. 1865 pursuers shipped at Amsterdam, on board defrs'. screw-steamer Ivanhoe, 5453 loaves of sugar in good order and condition, for the purpose of being conveyed to Leith in terms of the bill of lading set out in the schedule; that the defenders did carry the said sugar to Leith in the said steamship, and did there deliver the same; that

the said sugar, when so delivered, was not in the like good order and condition in which it was when shipped at Amsterdam, but was damaged by breakage of some portion thereof; but whether, by reason of the damaged condition of the said sugar when delivered, defrs. must be held in law to have committed a breach of their contract with pursuers, the jury were ignorant, and prayed to be advised by the Court;" and further, finding that it had not been established by evidence, what was the immediate cause of the damage sustained by the said sugar in the hands of defrs. They assessed the damages at L.55, reserving to enter up the verdict for pursuers or defrs. according as the Court should be of opinion in point of law that, in respect of the facts above found, defrs. had or had not committed a breach of the contract embodied in the bill of lading. In consequence of an equal division among the Judges of the First Division, the case was argued before the Judges of that Division and three Judges of the Second Division.

The LORD PRESIDENT, after stating the circumstances in which the controversy arose, said-One or two principles of law which are applicable to this case may be said to be beyond dispute. (1.) In the ordinary contract of carriage, whether by land or water, there is in the contract an absolute obligation on the carrier that he must carry and deliver the goods in the like good order and condition in which he received them; and that if they are delivered in a damaged condition the carrier is liable for that damage without inquiry into the cause of it. It is also clear that under a bill of lading in the ordinary terms the responsibility of the shipmaster is of the same character, with the exception only of damage or loss caused by the act of God or the Queen's enemies. This exception means that, if loss has been caused by what is otherwise called in our law damnum fatale, or by the Queen's enemies, the shipowners are not liable; but it lies on the shipowners to prove that it was caused by one or other of the excepted causes. So, if you extend the number of exceptions of that kind, as is done in the present case, it will still be on the shipowner to relieve himself from liability by proving that the loss was occasioned by one of the excepted causes. Here various things are thus excepted; and it would certainly be unreasonable, where the shipowner undertakes in general terms to deliver, that the owner of the goods, who has meanwhile been out of possession, and without any control over them, should have to negative in evidence all the causes excepted in the bill of lading. That is an obligation which, in fact, he could not implement. If we were at present engaged in the construction of this class of exceptions, I should hold the onus to lie on the shipowner, and that he was liable, unless he could prove that the loss was caused by one of such excepted causes. But the peculiarity and difficulty of the case arises on a different clause which occurs in an unusual place, and looks like an afterthought—I do not mean an afterthought in framing this bill of lading, but in framing the form of bill of lading according to which this has been drawn up. It is stated in one part of the bill of lading, as I read it, that the shipowner shall not be answerable for breakage. There can be no doubt that the persons who are not to be so answerable are the shipmaster and owner. "Breakage" can't mean that they are not liable for breaking the sugar themselves. I am dealing as favourably as possible with the pursuers when I say that the word is not used in an active sense, and that it means that the shipowners are not to be liable for the broken condition of the goods. The shipowners are plainly not to be liable for the state of the goods at the time of delivery. This is in one sense an exception, but

not in the same sense as the other exceptions. When the goods are produced in that condition, they are brought within the exception. It was argued, and I think successfully argued, for the defenders that, although not answerable for breakage in this sense, the shipowner will be so answerable if the breakage is the result of his own fault; whether of his gross fault, or of the mere neglect of ordinary diligence, it is not necessary for the decision of this case to inquire. The only question, then, that remains is, whether it lies on the defenders to prove that the broken condition was not brought about by negligence for which they are liable. In my opinion the carriers have not that burden laid upon them. It lies on the owners to show that there was such fault. The reason for this is that the liability to which carriers are subject for negligence which results in the breakage of the goods intrusted to them, does not lie on them in their character of carriers. It is a liability lying upon every custodier of goods, and is imposed by a rule of common law broader than any principle applicable to carriers alone, and the negligence out of which it arises has to be proved according to the ordinary rule by the party alleging it. His Lordship, therefore, thought the verdict must be entered up for the defenders. LORD COWAN differed.

LORD CURRIEHILL concurred with the Lord President.

LORD DEAS held it was an unreasonable construction of the bill of lading to hold that the shipowners, who have the absolute control of the goods out of sight and out of reach of the owners, are to be free unless the latter can prove actual fault; that the real difficulty he had had was to see what benefit the shipowners took from the exception of breakage, if that word were construed (as he thought it must be) to mean breakage arising otherwise than from their own fault. But it was plain that, if it were not excepted, they would be liable if it occurred by pure accident. Now, if they prove that it took place by pure accident they are free. This alone was a large innovation on the common law of carriers.

Lord Benholme and Lord Neaves concurred with the Lord President, and Lord Ardmillan with Lords Cowan and Deas.

J

The Court thus, by a majority of one, gave judgment entering up the verdict for the defenders, and assoilzieing them from the conclusions of the action.

Act.-Moncrieff and Lancaster. Agents-Messrs Wilson, Burn, and Gloug, W.S.Alt.-Gifford and M'Lean. Agent-P. S. Beveridge, S.S.C.

PURVES V. BROCK.-July 9.

Advocation-Competency-Sheriff Court-Proof.

This is an advocation of a judgment of the Sheriff of Sutherland and Caithness pronounced, in an application at the instance of the advocator Purves, against the respondent Brock, for delivery of a tup alleged by the advocator to have been purchased by him at a sale of farm-stocking at Stainland, and to have been removed by the respondent. The petition bore that the price paid for the tup by the advocator was £3 5s. The defence to the action was (1) that the respondent had really purchased the tup, and (2) that the petitioner had in any view a mere personal claim for delivery against the seller, and had no title to sue the respondent for delivery. The Sheriff-Substitute, after a proof had been led, ordained the respondent to deliver the tup to the petitioner; but this judgment was, on

appeal, reversed by the Sheriff-Principal, who held that the advocator must fail in his application, as no right of property in the tup had passed to the advocator. Thereupon, the advocator brought the present advocation.

When the case was called in the Short Roll last week, it was objected for the respondent that the advocation was incompetent, in respect the value of the cause was under £25, as appeared from the advocator's statement in the original application, to the effect that the price of the tup was £3 5s. To-day, the Court repelled the objection, holding that, although the value of a cause might be ascertained from an examination of other parts of the pleadings than the conclusions of the summons (or the prayer of the petition), the price of the tup was not necessarily any criterion of its value, and that, for all that appeared to the contrary, the tup might have been of much greater value to the advocator than £3 5s, or even than £25.

Counsel having been then heard on the merits, their Lordships recalled the Sheriff's interlocutor, and ordained the respondent to deliver the tup to the advocator, and found the advocator entitled to expenses both in the Court of Session and in the Sheriff Court.

The LORD PRESIDENT commented very strongly on the way in which the Act of 1853 was set at naught in this case by the practitioners in the inferior court, the proof in this paltry matter about a sheep having extended, in direct violation of the Act, over a period of three months.

Act.-Black. Agent-D. Forsyth, S.S.C.Alt.-Solicitor-General, M'Lennan. Agents-Morton Whitehead, and Greig, W.S.

PTN. KEITH MACALISTER.-July 10.

Entail-Improvement Expenditure-Drainage Act.

This was a petition under the Entail Amendment Act (11 and 12 Vict., cap. 36) for leave to constitute and charge certain improvements executed by the petitioner on the entailed estate of Glenbarr. By the sixteenth section of the Act it is provided-" That where an heir of entail in possession of any entailed estate, holden by virtue of any tailzie dated prior to the 1st day of August 1848, shall, whether prior or subsequent to the passing of this Act, have executed improvements on such estate of the nature of the improvements contemplated by the said last-recited Act (the Montgomery Act, 10 Geo. III., cap 51), but shall not have obtained decree therefor in terms of the said Act, by reason of the provisions thereof not having been adopted or not having been duly complied with, it shall be lawful for such heir to apply by summary petition to the Court in manner hereinafter provided, setting forth such improvements and the amount of money, not exceeding the amount authorised by the said Act, expended thereon, and praying the Court for authority to grant bond of annual rent," &c.

Part of the improvements was executed with money borrowed under the Drainage Act of 1846, by which the Treasury was authorised to make advances to proprietors on the security of the land, repayable in twentytwo years by instalments of £6 10s. per cent. per annum. Section 38 provides that heirs of entail "as between such person and the persons in remainder or reversion" shall be bound to pay the half-yearly payments of the rent-charge.