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dom. There are no words of limitation; but it does not follow that we have not still our own remedies in Scotland. In England, there was no way of getting at foreign owners, and it was necessary to find a substitute; but the action against foreign owners was always competent here, and our former remedy is not superseded. The action by Bartolomeo and Massa, brought the next day after this, is not alleged to be founded on a mandate in favour of Massa. He does it simply in virtue of his position as master representing owners. Is he to be good to sue without a mandate, but not to defend?

The other Judges gave opinions differing in various degrees as to the grounds of judgment, but concurring in sustaining the jurisdiction.

Act-Young and Millar. Agent-John Henry, S.S.C.-Alt.— Gifford and Asher. Agents-Murdoch, Boyd, and Henderson, W.S.

Pet., BRODIE OR MACKENZIE.-Dec. 12.

Petition-Tutor Nominate-Special Powers-Sale of Heritage.

A mother, as tutor-nominate, petitioned for authority to sell heritable subjects by public roup, and to ordain the sum to be realised, after deducting expenses, to be reinvested in the name of the petitioner, or of such other person, and on such conditions, as should seem proper, for securing the interests of the pupils and the heirs entitled to succeed to them, in the event of their dying in pupillarity. The heritable subjects consisted of a house and garden. The house required to be rebuilt, or undergo thorough repair. The pupils were unable to repair it without borrowing on the security of the house, having no income whatever except the rents of the house, and their mother being poor. The petitioner suggested that the money might be left in the hands of the tutor nominate, as was done in Bellamy, 17 D. 115, and Mackenzie, 17 D. 314, or that a curator bonis might be appointed by the Court in the present petition, as was done in Sawers, 12 D. 905. Every case on the subject was cited to the Court. The Court was of opinion that the petitioner ought to have a curator bonis appointed, in whose name the price of the property might be invested, and that that should be done in a separate petition. That being done, there was a case upon the merits to justify the Court in granting the prayer. Act.-Birnie. Agents-G. and J. Binny, W.S.

BEATTIE V. BEATTIE.-Dec. 15.

Marriage-Adulterers-St. 1600 c. 20-Legitimacy-Foreign. Reduction of services expede by the defender, as heir of provision of Francis Beattie, senior, who died in 1837, leaving a trust-settlement. By this he conveyed his heritable property to Francis Beattie, his youngest lawful son then alive, and to his children lawfully procreated; whom failing, to Thomas Clark Beattie, his grandson, and his children lawfully procreated. The defender is the lawful daughter of Thomas Clark Beattie. The pursuers claimed to be the lawful children of Francis Beattie, junior, by a marriage between him and Jane Pringle, and so called as heirs of provision before the defender. The summons also contained conclusions making it in effect a declarator of legitimacy. A preliminary defence was stated, objecting to the title to pursue, on the ground of the pursuer's ille

gitimacy. A record was made up, and a proof taken, as in consistorial

cases.

The pursuers contended that the father and mother (Jane Pringle) married at Gretna Green, 11th November 1813, that, after living for some time at Carlisle, they went to Canada, where, on 26th October 1822, they were formally married at Montreal by the Rev. John Bethune, Rector and Dean of Montreal. The defenders contended that the marriage at Gretna, as well as that in Canada, were null, as having taken place while Jane Pringle was the wife of James Crombie, from whom she eloped with Francis Beattie. Her marriage with Crombie was alleged to have taken place on 26th November 1805. Crombie died 24th July 1823; having obtained a decree of divorce against Jane Pringle in the Commissary Court of Edinburgh, on 16th July 1819. This decree of divorce was not recovered; but its terms were proved by a duplicate in the Commissary Court Books, marked by the initials of the Commissary. It contained the name of Francis Beattie, as the party with whom the defender in the process of divorce had committed adultery.

It was proved that, by the law of Canada, adulterers cannot afterwards marry. Mr Popham being asked-" Is it not a rule of Lower Canada law that parties who have committed adultery together can never lawfully marry each other?"-replied, "Yes; if they have knowingly committed adultery with each other." Mr Mackay, in like manner, stated-“ Two persons, wilful knowing adulterers, can never marry together lawfully in Lower Canada."

The Lord Ordinary held the marriage invalid, sustained the objection to the title to pursue, and dismissed the action. His Lordship observed that there had been an entire failure to prove Francis Beattie's ignorance. The contrary was the fair inference from the proof. Jane Pringle had in 1813 been more than eight years married to Crombie, and had lived with him, and been known as his wife. She was living in Dumfries, under the name of Mrs Crombie, with her husband coming to her regularly every Saturday, his work lying at some distance. She had children by Crombie living with her. Her acquaintance with Francis Beattie seems to have been commenced by her getting employment in binding hats for the hat manufactory carried on by Beattie's father; and there is no reason to doubt that she got this employment under the married name by which she was then known. It was impossible to suppose that he did not know her true position. But had the law of Canada been different, the Lord Ordinary would not have held the marriage valid. The question was raised in the Supreme Court of Scotland. And although, in questions of status, international law requires that respect be paid to the law of the domicile, the principle does not hold where the law sought to be applied is at variance with that of the tribunal of decision, in regard to a fundamental point of national policy, or general morality. (Fenton v. Livingstone, 3 Macq. 397.) The Act 1600, c. 20, struck directly at the case. And whatever might have been the law of Canada, the Lord Ordinary would have been compelled to hold the marriage in Montreal invalid, and the pursuers illegitimate, especially as this was an action for enforcing a claim to heritable property in Scotland. The pursuers reclaimed. At advising,

The Lord President said-The first question was whether Jane Pringle was the wife of Crombie. And as to this he could have no doubt-the

proceedings in a prosecution at the instance of the Procurator-Fiscal against Crombie for a clandestine marriage with her, in which they compeared and judicially acknowledged the clandestine marriage, being in evidence. Neither could there be doubt as to the identity of the parties both in the question as to the elopement and decree of divorce in which Beattie's name appears. Then it was clear that these persons could not intermarry in Scotland. His Lordship, however, did not adopt the proposition that the Scotch law could not recognize the Canadian marriage, even if lawful in Canada, on the principle established in Fenton v. Livingstone. A marriage between them in Scotland would have been null, because Beattie's name was in the decree of divorce, and therefore came within the statutory provision. But apart from that statute, his Lordship did not think a marriage between adulterers (after the dissolution of the prior marriage) either illegal or immoral in the eye of the law of Scotland. The fact of the marriage ceremony in Canada being established, the question arose, could that be a lawful marriage in Canada? Mr Popham's evidence was very clear in the negative. The other witness was more fastidious in giving his evidence. But he comes to substantially the same thing, only making great allowance for the ignorance of one party, and the constitution thereby of a putative marriage valid to certain effects in consequence of bona fules. Mr Popham said a marriage between two who had "knowingly" committed adultery was bad. Mr Mackay used the words "knowingly and wilfully." His Lordship could not see that there was really any distinction between committing adultery "knowingly" and committing it "knowingly and wilfully." Upon the question of fact whether Francis Beattie did know that Jane Pringle was married to another, the evidence was reviewed by his Lordship nearly in the same terms as was done by the Lord Ordinary, and to the same effect. It was a thing to be proved by circumstantial evidence, and the case was as clear as could well be-clear enough to have established a criminal charge against Beattie if we were now in the habit in Scotland of prosecuting adulterers criminally.

Lord Curriehill and Lord Ardmillan concurred.

Lord Deas also concurred, observing that it was not necessary to decide the question that would arise if the Canadian marriage had been valid. That question was not solved by the principle of Fenton v. Livingstone. His Lordship thought the marriage was not contrary to morality or the policy of the law of Scotland; and the question would have had to be settled upon narrower considerations.

The Court adhered to the Lord Ordinary's interlocutor, dismissing the action.

Act.-Fraser, Scott, and Brand. Agent John Walls, S.S.C.-Alt -Sol.-Gen., Pattison, and A. Blair. Agent-John M'Cracken, S.S.C.

TAYLOR v. CRAIG.-Dec. 20.

Expenses-Slander.

This case was tried upon an issue, proceeding on the admission of a letter from the defender to the pursuer in the following terms:-"Just as I expected, your orders plentiful, your money nowhere; but there are too many of this class in your town particularly please try elsewhere; but friends in my way of business in this town will have the opportunity of reading your

communications. I cannot say I wish you better fortune elsewhere, because I believe your system should be put a stop to.-Yours, &c.," and asking "Whether it was of and concerning the pursuer, and falsely and calumniously represented him as a dishonest person, &c."

The jury found for the pursuer, damages one farthing. The Lord Ordinary (Ormidale) found that the case fell under the general rule that a pursuer of an action for slander, who has obtained a verdict for nominal damages, is entitled to expenses (1) Because the slander here was of a very serious description; (2) The jury found the slander to be false and calumnious, and to the loss, injury, and damage of the pursuer; (3) The defender made no apology; (4) While nominal damages may have been given, in consequence of no publication having been proved, it was important for the pursuer to have the serious charge negatived, more especially as the letter contained a threat to make known the matter to friends in the same line of business in Liverpool. The defender reclaimed, and contended that this case was exceptional. The letter never having been communicated, there was no defamation, but the damages sought were only for injury to feelings (Lovi v. Wood, Hume, 613; Ewing v. E. of Mar, 14 D. 314, 330); and the pursuer sought for £500, and got only a farthing, which showed that the jury thought that, if he was not so bad as the defender had said, he was very nearly so. (Mason v. Tait, 13 D. 1282; Duncan, 22 D. 934.)

The Court, without calling on counsel for the pursuer, adhered.

Act. Sol.-Gen. and Shand. Agents-Messrs J. W. and J. Mackenzie, W.S.-Alt.-A. R. Clark and Rhind. Agent-R. P. Stevenson, S.S.C.

Pet., FLETCHER AND ANOTHER.-Dec. 11.

Entail-Registers-Warrant to transmit recorded deed.

The petitioners were heirs under two deeds of entail, the one executed in 1759; and the other, corroboration of the first, in 1804. These deeds were both in the Books of Council and Session. The petition was addressed to the Lords of Council and Session, and came before the Junior Lord Ordinary. The prayer was "to grant warrant to the Lord ClerkRegister, and other Keepers of the Records, to transmit the two principal dispositions and deeds of entail to the clerk of this application, or to appear before your Lordships, and to exhibit the same, and, upon the same being produced or exhibited as aforesaid, to interpone your authority to the said disposition and deeds of entail, and to grant warrant to the Keeper of the Register of Tailzies for recording the same agreeably to the Act of Parliament 1685, cap. 22." The Lord Ordinary reported the matter verbally. The petitioners founded upon A.S., 24th December 1838, sec. 15, as showing that the Lord Ordinary had power to grant the warrant. The Court held that the proceeding should be under the authority of the Inner House, and directed the Lord Ordinary to frame an interlocutor proceeding upon that authority, and providing that the documents should always remain in public custody, and should be retransmitted to the Keepers of the Records as soon as they were recorded in the Register of Tailzies. Act. Sol.-Gen, and Shand.

SECOND DIVISION.

BEATTIE (Inspector of Barony Parish of Glasgow) v. ADAMSON (Inspector of City Parish.)-Nov. 23. Poor-Settlement-Pupil child.

Clark, an able-bodied man, had in 1854 a residential settlement in the parish of C. This settlement he lost by non-residence in 1859. In 1856 he deserted his family, who were relieved by the parish of B. In 1857 he returned, and repaid the sums expended in relief of three of his children; but with regard to his remaining child, Elizabeth, the subject of the present action, who had been admitted into the poorhouse of B., he neither paid for nor removed her. Elizabeth was then in pupillarity, and has admittedly always been in weak health. She has since remained and is now in the poorhouse of B., by which parish the statutory notice was in 1863 sent to the parish of C., on the assumption that it was the parish of her settlement. It was admitted on the part of C. that Elizabeth, in respect of her health, was all along a proper object of parochial relief.

The Court (rev. judgm. of Sheriffs of Lanarkshire and of Lord Barcaple) held, that by C.'s admission the pauper was from 1856 downwards a proper object of parochial relief, that is a person entitled to demand such relief. Her father being an able-bodied man, she could not have been so unless there were something exceptional in her case, as doubtless would have been proved to be the fact, but for C.'s admission, which rendered such proof unnecessary. Her father's and therefore her own settlement in 1856 was in the parish of C. This settlement, though acquired through her father, was acquired in her own right, and no loss by the father of that settlement could affect the settlement which the child had so acquired. If the father had become chargeable in 1856, subsequent absence from the parish would not have altered his settlement, unless and until he was rehabilitated. The case of a child was precisely analogous. In all cases, when a person became a pauper, his then settlement fixed the liability.

Lord CowAN dissented. Advances made to an unemancipated child and in her own right could not be made the subject of a legal claim. Assuming the child to be a lunatic pauper, and therefore a burden on her father's settlement, such burden ought to be laid, not on the residential settlement, which he had lost, but on his birth settlement. The admission, though incautiously worded, meant only that the health of Elizabeth was such as would have made her a fit object of parochial relief, apart from the specialty of her having an able-bodied father.

Alt. Fraser & Burnet. Agent-John Thomson, S.S.C.vocatus, W. M. Thomson. Agent-W. Burnett, S.S.C.

AFF. W. D. HALL and OTHERS.-Nov. 24.

-Alt.-Ad

Sequestration-Personal Protection-Appeal-Competency-19 & 20 Vict. c. 79, § 169.

At a meeting of his creditors, personal protection was by the vote of a majority refused to the bankrupt. Against this resolution the minority appealed. The prayer of the appeal, which purported to be under sec. 169

VOL. XI. NO. CXXI.—DECEMBER 1866.

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