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pursuer, which was set aside as against evidence. On a second trial, the verdict was for defr. Both claimed the expenses of the first trial.
The Lord PRESIDENT agreed with the principles laid down by Lord Colonsay in Lindsay v. Shiel, Jan. 31, 1863, 1 Macph. 380. Whenever a perfectly pure case arose of a verdict on a first trial for the pursuer being set aside, and a verdict for defr. returned on the second trial, there being no allegation of miscarriage by either party, the proper course would be to find neither entitled to expenses. Here the pursuer could clearly not get expenses; and it was not enough that it was not the defr.'s fault, but that of the jury, that he did not get the verdict on the first trial. Certain circumstances, however, appeared very unfavourable to the pursuer, which were such as to lead him to give expenses to the defr. who had been improperly brought into Court.
Lord DEAS observed that Cullen v. Smeal, March 8, 1855, 17 D. 636, was a strong instance of the case in which a party, successful in an incidental point and incurring very great expense in its discussion, was yet, because defeated in the main issue of the cause, found liable even in the expenses of that part of the cause in which he was successful. This rule was not always applicable to repeated jury trials, for it was always difficult to say how far the failure on the first trial was due to the party who failed; and a special case must be made out by a party so failing, in order to entitle him to expenses. However, the pursuer was not in good faith in bringing his action. His Lordship would not say the pursuer had speculated on the prejudices of juries, for he did not think himself entitled to know judicially that there were such prejudices.
Lords CURRIEHILL and ARDMILLAN concurred, and the Court applied the verdict, and assoilzied, finding defr. entitled to expenses of both trials. [Note for Reference: Richardson v. Lamond, 1 Macph. 948.] Act.-Clark, Watson. Agent James Webster, S.S.C.Gen., Mackay. Agent-Alexander Howe, W.S.
MACKAY V. MACKAY-Nov. 21.
Debts Recovery Act, 1867.
In an appeal under the Debts Recovery Act, appt. ordered to print the process in the Inferior Court, and case sent to Summar Roll. Obs. by L. Pres., that it was not to be taken for granted that all cases under this Act would as a matter of course be sent to the Summar Roll. Although the Act said that the parties should crave the Court to do so, it did not say that the Court was bound to send them there.
BAIN v. DUKE OF HAMILTON AND DUNLOF.-Nov. 4.
Action of damages at the instance of Bain of Morriston against his superior to whom the minerals in that estate belong, and his tenants, for injury to lands and houses by the defenders' coal-mines. The first feuright in 1653, reserved "power to win coals and coal-heughs within the bounds of the said lands, and to use and dispone thereupon at our pleasure,
with free ish and entry thereto, I and my foresaid giving satisfaction and payment to the said R. M. and his foresaids for all skaith, damage, and interest that they should happen to incur therethrough, by the sight of four honest neighbours to be mutually chosen." The investiture was renewed in 1698 Reserving power to us as superiors of the said lands, and for that effect to set down shanks within any part of the said lands, and to use and dispose upon the said coals as we please, we always giving satisfaction for the damage they shall happen to sustain through leading or setting down of the said shanks." This clause was inserted in the subsequent titles. Defenders contended that the original reservation was superseded by that of 1698, under which the vassal could claim reparation only for loss caused by the shanks within the lands, whereas the damage in the present case was caused by the working of pits sunk in other lands. The L. O. (Kinloch) repelled this defence, and "found it relevant to infer a liability for damages that the defrs., or either of them, had produced injury to pursuer's land, or the houses thereon, by working the minerals beneath the same, without leaving sufficient support to the surface. The Court adhered. Obs. by Lord Cowan that it was not clear that the precept of clare constat in 1698 altered the reservation. It must be read with reference to the original title. At all events, there was nothing in the titles which could deprive the pursuer of his claim to damages at law, apart from contract, if his lands had been injured by improper operations.
Act.-Clark, Shand. Agents-Ronald and Ritchie, S.S.C.-Alt.W. M. Thomson. Agent-George Wilson, S.S.C.
OAKELEY V. CAMPBELL AND OTHERS. -Nov. 6.
Poor-Law Act-Poinding-Warrant-Justice of Peace. Pursuer's goods were poinded and sold for L.26 of poor-rates. He sued defenders the collector of poor-rates, who obtained the warrant; J.P. who signed it; and the sheriff-officer who executed it-concluding for reduction of the warrant and execution, and for damages. The warrant bore to be granted "as directed by the statute 8 and 9 Vict., 22 cap. 83, sec. 88; and 52 Geo. III., cap. 95, secs. 13 and 14." Pursuer maintained that the Act of Geo. III. cited had no bearing on the matter, and that even cap. 95, which was intended, conferred no jurisdiction on Justices of the Peace, still less on a single Justice, but only on Commrs. of Supply; and that the warrant was illegally and oppressively executed. The L.O. (Jerviswoode) ordered issues. Defrs. reclaimed. Held that by sec. 88 of the Poor-Law Act it was competent for a single Justice to sign such a warrant, such an act being ministerial; that the misrecital of the Act of George III. was unimportant, the provisions of the Poor Law Act being sufficient, and not impaired by the unnecessary misquotation; and that any claim for damages was excluded by sec. 86 of the Poor Law Act.
Act.-Pattison, Thoms. Agent-W. Cfficer, S.S.C.-Alt. Watson. Agents-Adam, Kirk, and Robertson, W.S.
MORONEY & CO. AND OTHERS v. MUIR & SONS AND OTHERS.-Nov. 6.
Advocation from Glasgow of an action of reduction under 1696, c. 5, of transfers of delivery orders by Jackson & Son of 2000 bags of thirds to VOL. XI. NO. CXXVI.-JUNE 1867.
defrs. There were also petitory conclusions for the restoration of the goods, or their value. The Sheriff (Alison) dismissed the action, as being incompetent in the Sheriff Court (Dickson v. Murray, June 7, 1866, 4 Macph. 797). The pursuer advocated. Held, that, though the reductive conclusions were incompetent, the petitory conclusions were sufficient to enable the Sheriff to decide the merits. The summons need not be grammatically perfect, after excision of the reductive part. Remitted. Act. Decanus, Clark.-Agent-J. Webster, S.S.C. creiff, Lancaster.-Agents-Wilson, Burn, & Gloag, W.S.
Rodger v. Crawfords.—Nov. 9.
Husband and Wife-Assignation of Lease-20 and 21 Vict. c. 26. Declarator and removing, the question being as to the right to a long lease of subjects in Saltcoats, to which pursuer was assignee under a series of assignations originally proceeding from Mr Crawford, all recorded, along with the lease itself, in terms of the "Registration of Leases Act." Pursuer sought declarator of his sole right to the subjects, and that defrs. were bound to remove and cede possession to him. Defrs. pleaded that Mrs Crawford had right to the subjects in virtue of (1.) an assignation in trust by her husband to one Coulter prior to the assignation to pursuer's author; and (2.) a re-assignation by Coulter to her and her husband "in conjunct liferent, and to the survivor of them and his or her assignees in fee," also prior to the origin of the pursuer's title. It was said that the spouses having had possession upon this deed, it was not thereafter in the husband's power to defeat his wife's right under it; and, further, that assignations founded on by pursuer were inept in a competition with defrs., because (1.) none of them was conform to Schedule C in the Long Leases Act, in respect that they omitted, in setting forth the transmissions of the lease, to set forth the assignation to Coulter, and his re-assignation to Crawford; and (2.) one of the assignations was in security for future advances, and not for a definite sum of money, which was a thing not contemplated by the Act. Held, that in no view did the re-assignation constitute a completed right that could compete with assignations duly recorded under the Act of 1857, as the possession following on it was not necessarily to be attributed to it; that the Act did not contemplate that assig nations should set forth inchoate and latent transmissions such as those to and from Coulter were; and with regard to the indefiniteness of the consideration in one of the assignations, that was not a question pertinent as between the present parties.
Act.-Sol.-Gen., Burnet.-Agent―J. Thomson, S.S.C.-Alt.-Scott, Brand.-Agents--M'Gregor & Barclay, S.S.C.
MACMILLAN V. PRESBYTERY OF KINTYRE, &c.-Nov. 19.
Grass Glebe-Arable or Pasture Land.
Reduction at instance of Macmillan of Ballinakill, against the Presby tery of Kintyre, and Campbell, minister of Kilcalmonell and Kilberry, of a resolution or minute of the said Presbytery, dated 25th Feb. 1865, whereby they designed a portion of the pursuer's lands as a grass glebe for Campbell. Pursuer alleged, inter alia, that the land in question was not
grass land, but arable. The L. O. (Barcaple) found, on a proof, that the ground designated was arable, repelled the defences, and reduced. Defenders reclaimed.
Lord Justice-Clerk.-When the statute anent the designation of glebes was passed, there was probably little difficulty in distinguishing what land was arable and what was pasture. Arable land was "infield" land, and pasture was "outfield " land, and these terms were well understood. Now, however, the whole face of the country had been changed by agricultural improvement and other causes, and the only principle which could now be followed was that land should be considered arable which had been for a long course of years dedicated to the raising of cereal corps. The Court
could not adopt the view that the thing to be looked to was whether the land was naturally more suitable for pasture or for cereal crops. The actual history of the ground was the test, and not any speculative considerations as to what was most beneficial.
The other Judges concurred.
Act. Decanus, N. C. Campbell.-Agent-John Martin, W.S.— Alt. -Shand, Asher-Agents-Adamson and Gulland, W.S.
CATTO, THOMSON, & Co. v. GEORGE THOMSON & SON, and others-Nov. 19. Proof-Accommodation Bill-Partnership.
Action against George Thomson & Son and the executors of W. L. Thomson, some time sole partner in the said firm, to recover £11,773, the amount in a series of seven bills drawn by the firm upon, and accepted and retired by, the pursuers. It was averred that the bills were truly granted by the pursuers for the accommodation of the defrs.' firm. It was pleaded that the pursuers' averment could only be proved by defrs.' writ or oath. The pursuers recovered the books of the firm, which were found not to throw any light upon these transactions. They now asked diligence to recover the books of George Thomson, the managing partner, as an individual; and pleaded further that the bills, being avowedly accommodation bills on the one side or on the other, the true character of the transaction could be proved prout de jure. The L. Ordinary (Kinloch) refused the diligence, on the ground that the books sought would not be the writ of defrs.' firm; and held that proof prout de jure was incompetent, and therefore assoilzied defrs., reserving all competent reference to oath.
The pursuers reclaimed; but the Court adhered on the same grounds. Act.-Clark, H. Smith. Agents-M'Ewen and Carment, W.S.—Alt. -Young, Shand. Agents-Cheyne and Stuart, W.S.
(Lanarkshire. Before Mr Sheriff Glassford Bell.)
Examination of Creditor as to his own Claim—19 and 20 Vict., c. 91, s. 90. In the examination of Abbot in the sequestration of Weir Brothers, it was objected to an interrogatory that it involved an examination into the
witness's own claim against the bankrupt estate. There was a long course of dealing between bankrupt and witness, including a number of bill transactions. The witness (who was himself bankrupt) alleged that a balance was resting-owing to him, and his trustee was prepared to constitute the claim by action, and claimed for the amount on the estate of Weir Brothers, founding on the bills as adminicles of evidence to instruct this. The Sheriff held that, under s. 90 of the 19 and 20 Vict., c. 91, and upon the authority of Paul v. Robb, Feb. 21, 1855, 17 D. 457, “ a creditor cannot be examined regarding his own claim." The Sheriff says:
"In Nisbet, 28th January 1837, it was laid down that the mere customer of a bankrupt, or any one who dealt with him, or who was one of his creditors, was not to be subjected to examination under the words of the Bankrupt Statute then in force, that he was "connected with him in business." These words are now altered so as to make it competent to examine any one "who can give information relative to the bankrupt's estate;" but it has always been held under all the Acts that a trustee is not entitled to insist on a witness submitting to a precognition regar ding his own claim, which must be established by the ordinary vouchers. Ridpath, 20th July 1844, 6 D. 1438. Although it was ingeniously argued that the rule established in 1844 fell to be modified in respect of the Evidence Acts of 1852 and 1853, under which a party to a cause was made a competent witness on either side, it will be seen, on a moment's consideration, that these Acts have no applicability to the present question. In an examination under the Bankrupt Statute the trustee and the witness do not stand in the relation to each other of parties to a cause. It is by force of statute alone, and not at common law, that the trustee has a right to examine any witness, and that right is conferred upon him subject to an equitable limitation as regards the subject matter of the witness's own claim. It was also pleaded that, by sec. 126, express authority was given to the trustee to examine a creditor on oath relative to his claims. But it rather appears (1), from the terms of the sec., that the examination must be confined to the "grounds of debt" produced with the oath; and, (2), the power, whatever it is (and the Sheriff is not aware that it has ever been exercised), is given solely when the period comes for the trustee adjudicating upon claims, and not for the other purposes contemplated by sec. 90. Accordingly, in Paul v. Robb, decided after the Evidence Acts, and under express reference to the Bankrupt Act, 2 and 3 Vict., cap. 41, then in force (sec. 68 of which was almost identical with sec. 90 of the present Act), Lord Deas said-“If anything is settled under the statute it is settled that the statute cannot be used for the examination of an opposite litigant;" and from the observations of Lord Curriehill in the same case, it appears that he considered the examination of an agent of a claimant regarding the subject matter of his client's claim clearly incompetent."
(Forfarshire S. D. Court, Dundee, before Sheriff Smith).
Poor-Voluntary Removal-25 and 26 Vict., c. 113.-Summons for £12, being an advance made by the former parish to the family of an Irishman named Michael Reid, who had deserted his family in that parish. In the year 1864 or 1865, Reid became chargeable to Dundee, and received relief for eight or ten months. It was then arranged between the Inspr. of Dundee and Reid that the latter was to go home to Ireland, Dundee parish paying his expenses. The Inspr. did not obtain from the Sheriff a warrant to send him to the place of his birth, and the pauper came back to Monifieth, where he deserted his wife and family. Monifieth maintained that Dundee was liable to relieve it of all expenses, because the pauper came back through the fault of the Inspr. of Poor for Dundee, who neglected to obtain the proper warrant. The Act 25 & 26 Vict., c. 113, repealed the 77th sect. of the Poor Law Act, and the Board of Supervision had issued circulars expressly requiring all removals to be effected under the Sheriff's authority