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(25th Nov. 1858 and 15th Feb. 1866). It was contended for Dundee that the 77th sect. of the Poor Law Act was not repealed, and that the power of voluntary removal still existed; that the removal of Reid from Dundee took place before the circular of Feb. 1866; and that even if the voluntary removal was wrong in point of form, still the pauper was able-bodied, and having come to Scotland, was free to go where he pleased, working throughout the country; and having settled in Monifieth, he supported his family for ten or twelve months. The case could, therefore, only be viewed as that of an ordinary Irishman working throughout the country, and becoming chargeable where it might happen.
The Sheriff-Substitute said "he was not required to say whether, under 25 and 26 Vic., c. 113, it was now competent for a Parochial Board to give to an Irish pauper, willing to go home to Ireland, the means of doing so; for, assuming that it was not, he was clearly of opinion that, on the facts stated, Monifieth had no claim of relief against Dundee. A pauper in receipt of relief from one parish is entitled to leave it and apply to another, and that application the second parish is bound to entertain, its only remedy being recourse on the parish of settlement. If, indeed, the Inspr. should fraudulently assist a party out of his parish for the express purpose of transferring the burden of his maintenance elsewhere, it has been held that there is no valid transfer of the liability, and the parish to which he first made application remains bound to maintain him till the parish of settlement is established or admitted. But these cases assume that the man's pauperism is continuous and unchanged, and the principle on which they were decided would not apply to a case in which the pauper, after ceasing to receive relief from parish A, was able to maintain himself for a time by his own exertions or the assistance of friends before he made application to parish B. In such a case the second application for relief is a new act of pauperism, which would require a second notice to the parish of settlement, in order to preserve the right of recourse competent to the relieving parish (Beattie v. Wood, Feb. 9, 1866, 4 Macph. 426). Here, the pauper having been sent to Ireland by Dundee in Sept. 1865, returned to Monifieth in Nov. He was not, however, a pauper for several months after, for he maintained himself, and his wife and family without Parochial aid, till his desertion in Oct. 1866, and it was not till Nov. 11 that his family were admitted to the roll. In such circumstances, it is impossible for pursuer to maintain that the chargeability of the family was the direct and necessary result of the alleged wrongous proceedings of Dundee; otherwise how far is the claim to extend? If several years, instead of months, had elapsed between the removal and the date of chargeability, would the pursuer have had any claim of relief against the defender? I can see no reason for holding this, and therefore the defender is assoilzied with expenses."
Act.-Pattullo & Thornton.-Alt.—Hay.
(Fifeshire, Dunfermline, before Sheriffs Mackenzie and Beatson Bell).
SHEARER V. NISBET OR MORRIS.
Debts Recovery Act-Bill.-The circumstances of the case sufficiently appear from the judgment of the Sheriff-Substitute, which as one of the first decisions under the Act we give in full :
"Dunfermline, 31st October 1867.-The S.-S. having tried the cause, and, at the request of the pursuer's agent, having dictated notes of evidence to a shorthand writer, and having heard parties' procurators, finds, in point of fact (1), That the first conclusion of the summons is laid partly upon a bill for £19, 2s. 6d., alleged to have been accepted by the defender, and, quoad ultra, is for goods sold and delivered to the defender, amounting to 18s. 8d.; (2), That the alternative conclusion is partly for goods sold and delivered to the defender's husband, whom she is alleged to represent by vitious intromission, and, quoad ultra, is for the same goods sold and delivered to the defender, as mentioned in the first conclusion; (3), That the last item in the account for goods sold and delivered to the defender's husband, is more than three years from the date of the summons, and that the pursuer has failed to prove by the defender's writ or oath that the same is resting owing; finds, in point of law (1), That the action, in so far as laid on a bill, is incompetent in this form; (2), That the account for goods sold and delivered to the defender's husband is prescribed; (3), That the only remaining claim being for a sum under £12, is incompetently sued for in this form; therefore assoilzies the defender from the conclusion for payment of the account for goods sold and delivered to her husband, and, quoad ultra, dismisses the action and decerns. Finds it unnecessary to dispose of the question of vitious intromission; finds the pursuer liable in 30s. of expenses, being the defender's procurator's fee, and decerns for the
"Note. The pursuer candidly conceded that he had failed to instruct the resting owing of the prescribed account, and that the balance remaining was too small to be sued for in this form. The only question remaining for decision is whether it is competent to sue upon a bill in the summary form provided by the 'Debts Recovery Scotland Act of 1867.' The SheriffSubstitute is humbly of opinion that it is not. The application of that Act is limited to 'actions of debt that may competently be brought before him (the Sheriff) for house maills, men's ordinaries, servants' fees, merchants' accounts, and other the like debts.' The words of the Act 1579, c. 83, introducing the triennial prescription are the same, except that the concluding words are 'uther the like debts that are not founded upon written obligationes.' The pursuer contended that the omission of these words in the Debts Recovery Act enabled him to pursue for the contents of a bill, at all events, if granted for a merchant's account. The SheriffSubstitute, however, cannot accede to this view. An obligation constituted by a bill is different in almost every essential from one arising upon an open account the sum in the one is liquid, in the other it is illiquid; in the one the obligation arises from the acknowledgment that a particular sum is due, in the other from a multitude of contracts of sale; to the one a triennial, to the other a sexennial prescription is applicable. In short, the bill is a literarum obligatio, excluding (unless in a certain very limited class of cases, and in a very limited mode) all inquiry as to the nature of the debt which it liquidates; and the Sheriff-Substitute is of opinion that even when a bill is granted for a merchant's account, it can in no sense be said to be a like debt to that account. It is because of its very unlikeness that parties have recourse to it, transferring by its means an illiquid into a liquid debt. With regard to the alternative conclusion of the summons, the Sheriff-Substitute may explain that there is probably a good answer to it,
besides the one on the proof which has been sustained, on the ground that the defender having taken a bill for the amount, the debt is extinguished by novation. As, however, such a plea was not stated at the diet for noting pleas, and there does not appear any authority for adding a plea at the trial, the Sheriff-Substitute has not considered it."
The pursuer appealed to the Sheriff, who adhered, concurring "in the very distinct findings and grounds of judgment set forth in the interlocutor appealed against, and note annexed thereto."
(Lanarkshire, Hamilton, before Sheriffs Glassford Bell and Veitch). RULE V. THOMSON.-Nov. 7.
Debts Recovery Act, 1867-Reference to Oath.
Action for £41, 16s 7d, being balance of account for wood supplied in 1856. Defr. denied the debt, and pleaded prescription. The S. S. assoilzied with costs, and added a note stating that the account was prescribed and in the absence of proof by writ was referred to defr's. oath, and shortly referred to the import of the oath of the defender. The pursuer appealed. The Sheriff found that the pursuer having admitted the validity of the defender's plea of prescription, and having also admitted that he had no proof by writ, said defr. fell to be simpliciter assoilzied, unless the pursuer tendered a minute of reference to his oath, upon which it would have fallen to the Sheriff-substitute to consider and sustain the reference if he saw fit, and to appoint defr. to appear and depone; that it appeared from the interlocutor appealed against that a verbal reference was made to defr's. oath, and that he deponed under it without any formal record being kept of the deposition but that although such procedure might be competent in a Small Debt Court, which is not a court of record, and in which there is no appeal from the S. S. to the Sheriff, it is not competent under the Debts Recovery (Scotland) Act, in respect that an appeal lies from the judgment of the S. S. on the oath of reference to the Sheriff, and unless the same has been proceeded in and taken in the same form as in the Sheriff's ordinary Court, the Sheriff has no data upon which to proceed in considering the appeal. The Sheriff recalled the interlocutor, and remitted to the S. S. to allow the pursuer to lodge a minute of reference to the defender's oath, to sustain said reference if so advised, to take and authenticate the oath in common form, &c.
(Lanarkshire, Glasgow, before Sheriffs Strathern and Bell).
By charter party dated 21st February 1857, it was contracted that the pursuer's ship John Mitchell, then at Bristol, and every way well found, should load a cargo of coals, proceed to Moulmein, and there discharge. the same at the depot of the defrs.; that she should thereafter reload with a cargo of teak, and return to Queenstown or Falmouth, there to await orders; and that she should deliver the cargo at a safe port in Great Britain. In her outward voyage she encountered such heavy weather as to necessi
tate the throwing overboard of several tons of coal, and when she arrived at Moulmein was found so disabled as to be quite unseaworthy, and therefore unable further to implement the charter-party. This action was brought by pursuer to recover freight on the out-bound cargo, so far as delivered. He contended that the vessel was, by reason of the perils of the sea, constructively lost, and that defrs. were liable in freight pro rata itineris. Held by the S.S. that the pursuer had no such claim, as what was contemplated by the charter-party was one voyage, though two cargoes were named, and that the pursuer not having fulfilled the contract, could not recover under it. The Sheriff affirmed.
[Cases cited by S.S.-Taylor and Co. v. Hogg, 9th July 1802, M. 10,113; Cook v. Jennings, 7 T. R. 381. See Shee's Abbot, 11th ed., p. 393.]
HIGH COURT OF JUSTICIARY.
(Before Lords Justice-Clerk, Cowan, and Neaves.)
Susp. and Lib. against a conviction before Justices of the Peace of Kincardineshire, under Customs Consol. Act 1853. The information set forth "Alexander obstructed one William Finnigan, employed for the prevention of smuggling, contrary to section 247 of the Customs Consolidation Act, 1853, whereby the said John Alexander has become liable to be imprisoned as is therein directed," and he was convicted "of having within three years now last past- to wit, on the 12th day of October obstructed," &c., as before. He suspended on the ground that the information did not specify the time or place of the alleged offence, which were required at common law in every criminal indictment, Hume ii. 38,-a principle which was not derogated from by the form in the Act founded on. That Act only sought to shorten the form of imformation formerly in use, and did not dispense with matter so essential as the time and place in a criminal charge. The want of specification of these caused an essential nullity in the proceedings, not a mere want of relevancy, which entitled the Court of Justiciary to interfere, even although its jurisdiction on the merits might be excluded (Yeaman v. Tod, July 11, 1836, 1 Swin. 247; Young v. Townshend, Nov. 24, 1856, 2 Irv. 525). These and other objections had been stated before the Justices, and repelled.
Bill of susp. and lib. refused, the information, summons, and conviction all being in strict accordance with the forms in sched. B of the statute. The real question was whether the Court had jurisdiction. The objection raised a question of relevancy stated to the competent Court below, and disposed of by it. To consider whether it had there been rightly dealt with would be to review the judgment on the merits. But by sec. 263 the only competent Court of review on the merits was the Court of Exchequer; and as there was no patent irregularity or incompetency on the face of the proceedings, the Court of Justiciary could not interfere. Want of relevancy did not affect the question of jurisdiction.
Act.-Fraser, Burnet.-Agent-John Thomson, S.S.C.-Alt.-Advocatus, Sol.-Gen., Muirhead.-Agent-W. H. Sands, W.S.