assigned the bond so restricted to an investment company which had previously obtained a postponed bond over the part of the security subjects still covered by the original bond granted by MacBean. In an action by the Investment Company against MacBean for payment of the full amount due under the bond granted by him, the Court assoilzied MacBean, holding that the Investment Company, as a condition of receiving payment, were bound to assign the bond to MacBean, and that as it could no longer be assigned in its entirety, MacBean was freed from his obligation. North Albion Property Investment Company, Limited, v. "Wilson and MacBean, p. 58. Right in Security--Pledge--Arrestment--Agent and Principal-Bill of Lading. On 1st April 1892 the shippers of a cargo of phosphate rock then afloat, obtained a loan from a bank, giving by way of pledge the cargo, and handing the bill of lading blank endorsed to the bank. It was agreed that the bank should have immediate and absolute power of sale over the cargo, in respect of which they authorised and empowered the shippers "to enter into contracts for the sale of the pledged goods on our behalf in the ordinary course of business," and directed them to pay the proceeds of all such sales immediately and specifically received by you, to be applied towards payment of the said advance," &c. The shippers further agreed, when required, to give the bank full authority to receive all sums due or to become due from any person in respect of such sale. No such request was ever made. Some months before this the shippers had sold, through their agents in Glasgow P. & Co., a quantity of phosphate rock to C. & Co., which was not stated to be the cargo of any particular vessel, but which amounted to nearly the quantity in the bill of lading endorsed to the bank by the shipper. The sale-note bore that the shippers had sold to C. & Co. per Messrs P. & Co. When the cargo arrived on 12th April the bank, in consideration of the shippers undertaking to sell the cargo on behalf of the bank, transferred to the shippers, "as trustees for us," the bill of lading. The shippers forwarded the bill of lading to P. & Co., with instructions to hand it to C. & Co. on arrival of the vessel. This was done, and C. & Co. took delivery of the cargo and paid part of the price. Neither P. & Co. nor C. & Co. had any knowledge of the shippers' transaction with the bank. P. & Co., on the dependence of an action against the shippers, arrested the balance of the price of the cargo in the hands of C. & Co., who raised an action of multiplepoinding to have it determined whether the balance was payable to the bank or to P. & Co. Held (diss. Lord Young) that although the delivery by the shippers of the bill of lading to the bank completed the contract of pledge between the parties, yet when the bank parted with the pledge to the shippers, the latter resumed possession of their own property freed from the security-burden, leaving the bank only their personal right against the shipper; that therefore the bank could not claim as the price of their property the fund in medio to which the arresters had secured a preferable right. Cross & Sons e. Page & Company, the North-Western Bank, Limited, and Poynter, Son, & Macdonalds, p. 401. Right in Security. See Heritable Creditor. Right of Landlord. See Landlord and Tenant. Right of Shooting. See Landlord and Tenant. Right to Bring down Surface. See Valuation Cases. Right to Cut other Vessel's Ropes. See Ship. Right to Take Peats Imported into Lease. See Lease. Right to Work Freestone under Railway Line. See Railway. Risk. See Ship. River - Navigable but Non-Tidal River-Trout Fishing. Held in the case of a navigable but non-tidal river that a right of access to and along the bank did not confer on the public a right of angling for trout therein; that a riparian proprietor had exclusive right to trout fishing ex adverso of his lands; and that the right could not be acquired by the public by use for the prescriptive period. Grant v. Henry, p. 263. Pollution-Mines and Minerals. A proprietor sought to interdict the tenants of a colliery from discharging impure water from their workings into a burn which ran through his property, whereby the burn might be rendered unfit for its natural primary purposes or its amenity diminished. It was proved that for more than forty years successive tenants of the colliery had been in the habit of discharging the water from the workings into it, and that the water thus discharged into the stream had been so impure as to be unfit for use as drinking water by man. It was also proved that since the respondent's tenaney began they had worked a pit which had not been worked for a number of years, and which was nearer the burn than the pit worked by their immediate predecessors; that if the water was allowed to accumulate in this pit, it drained naturally into the burn, but that the pumping operations of the respondents had increased the pollution of the stream, so as to render the water unfit for primary purposes, other than that of supplying drink to man, for which it had been previously used. that the respondents were not entitled to discharge into the burn water pumped from their coal workings, whereby the burn in its progress through the complainer's property might be polluted and rendered unfit for its natural primary purposes other than that of supplying drink to man. Duke of Buccleuch v. Gilmerton Gas Coal Company, Limited, p. 528. Held Road-Burgh Pavement of Public Street Common Law Liability as regards Safe Upkeep of Pavement-Reparation. Where the title to a house in a public street of a burgh included the solum of the pavement in front of it, held (diss. Lord Young) that the proprietor was bound at common law to keep the pavement in safe condition for foot-passengers. Baillie v. Hutton, p. 390. Burgh-Pavement of Public Street-Construction of Glasgow Police Act 1866 (29 and 30 Vict. cap. 273), secs. 279, 289, 317, and 326 -Liability for Safe Upkeep of Street Pavement in Glasgow not Taken over by Police Commissioners-Reparation. Where the title to a house in a street on the register of public streets for Glasgow included the solum of the pavement in front of it, held (rev. Lord Kincairney, and diss. Lord Young and Lord Adam) that the proprietor was liable for accidents occurring through the unsafe condition of the pavement until the pavement had been taken over by the Police Commissioners in terms of section 326 of the Glasgow Police Act 1866. Baillie v. Hutton, p. 390. Public Right-of-Way for Foot-Passengers over Road-Obstructions-Gates. The proprietor of a road over which there was a public right-of-way for foot-passengers, but for no other traffic, erected at each end two gates, one 9 feet wide and locked, the other a swing gate 2 feet 9 inches wide and unfastened. The road was unfenced, and the proprietor desired to prevent the trespass of animals and the use of the road for wheeled traffic. The swing gates were sufficient for the passage of foot-passengers. Held that the locked gates were no interference with the existence or enjoyment of the right-ofway, as at each gate there was provided for the exercise of that right a sufficient space which was not materially obstructed by the swing gates-diss. Lord Rutherfurd Clark, who held that as the right of footpath existed over every part of the road, the proprietor was not entitled to withdraw any part of it from this use, and that the locked gates were an illegal interference with public right. Sutherland v. Thomson, February 29, 1876, 3 R. 485, considered. Baron Donington v. Mair and Others, p. 666. Bridge-Waterworks Clauses Act 1847 (10 and 11 Vict. c. 17)-Public Water-Pipe Laid on Railway Company's Bridge which Carried a Public Road. The Waterworks Clauses Act 1847, sec. 28, provides that the undertakers "may open and break up the soil and pavement of the several streets and bridges within the limits of the special Act, . . and lay down and place within the same limits pipes, .. and for the purposes aforesaid remove and use all earth and material in and under such streets and bridges, and do all other acts which the undertakers shall from time to time deem necessary for supplying water to the inhabitants of the district." The 29th section provides "That nothing herein con tained shall authorise or empower the undertakers to lay down or place any pipe... or other work in any land not dedicated to public use without the consent of the owners and occupier thereof." A public road within the limits of the Glasgow Waterworks Acts was carried over a railway line by means of a bridge. This bridge, the property of the railway company, was formed by longitudinal girders supported on abutments on either side of the railway. The spaces between the girders were covered by iron plates, on which the roadway was made up, of a depth of several inches. The Corporation of Glasgow as Water Commissioners pierced the abutments of the bridge, broke up the iron plates, and carried a public water-pipe through the abutments and over the bridge, slinging it from the underside of the transverse girders by iron bars. In an action of interdict against the Cominissioners by the railway company, held that the operations of the respondents were not within the powers conferred by the Waterworks Clauses Act, and that they were bound to obtain the consent of and enter into agreement with the complainers respecting the laying of the pipe. The Glasgow and South-Western and The Caledonian Railway Companies (Glasgow and Paisley Joint Railway) v. Magistrates of Glasgow, p. 883. Road-County Council-Determination that Road should Cease to be a Highway-Appeal-Competency Sheriff-Reduction-Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap. 51)-Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50). The 42nd section of the Roads and Bridges (Scotland) Act 1878 provides that the road authority may determine that a road shall cease to be a highway within the meaning and for the purpose of the Act. The 43rd section provides that where three ratepayers are dissatisfied with such decision, they may appeal to the "sheriff" (which includes the sheriff-substitute), whose decision shall be final. The County Council of Roxburgh, as the road authority in virtue of the Local Government (Scotland) Act 1889, having determined that a road should cease to be a highway, three ratepayers who were dissatisfied with the decision brought a petition in the Sheriff Court to have the County ordained to retain this road in their highways. They averred that under the 42nd section of the Roads and Bridges Act the decision of the County Council by themselves was incompetent, as the road in question was part of a road which extended outside the county; and further, that the decision was unwise and would cause inconvenience. A record was made up, and the Sheriff-Substitute appointed parties to debate on "the preliminary pleas," and having heard parties thereon, he dismissed the action by an interlocutor which disposed of the whole merits. The pursuers appealed to the Sheriff, who recalled the Sheriff-Substitute's judgment and appointed parties to be heard. In an action by the County Council to reduce the note of appeal and interlocutors following thereon, the Court held that the appeal was competent, and dismissed the action as incompetent. Dalrymple and Others v. The County Council of Roxburgh, p. 906. Road. See Reparation-Property Street. Rules Laid before Parliament and not Objected to Sale-Sub-Sale- Intimation Arrestment by Original Seller in Security-Mercantile Law Amendment Act 1856 (19 and 20 Vict. cap. 60), sec. 3. The Mercantile Law Amendment Act 1856 provides, sec. 3-"Any seller of goods may attach the same while in his own hands or possession by arrestment or poinding at any time prior to the date when the sale of such goods to a subsequent purchaser shall have been intimated to such seller." In January 1891 a merchant in Leith sold 20 hogsheads of whisky to a merchant in London, who paid the price and allowed the whisky to lie in the Leith merchant's bonded warehouse, and in the custody of his warehousekeeper. A sub-sale of this whisky was made by the London merchant, and on 21st January 1891 he informed the Leith merchant of the sub-sale in a letter, which, however, did not disclose the name of the sub-purchaser. His name was given verbally on 10th February following at an interview between the Leith merchant and the London merchant. In March 1892 the Leith merchant arrested part of the whisky in his warehouse in security of a balance due to him on a general account by the original buyers. In an action by the sub-purchaser against the Leith merchant to compel delivery of the whisky, or alternatively to recover its value-held (diss. Lord Rutherfurd Clark) that a sale of the whisky to a subsequent purchaser had been intimated to the Leith merchant prior to the execution of his arrestments, and that therefore he was not entitled to withhold delivery from the sub-purchaser. Browne & Company v. Ainslie & Company, p. 161. ·Contract-Equal Monthly Quantities— Breach of Contract. On 5th March 1891 a coalmaster addressed to a buyer a sale-note in these terms "I confirm sale to you of 2500 tons of Skaterigg cannel coal, for shipment in equal monthly quantities to Brussels, in lots of 300 tons maximum ;" and the letter enclosing this sale-note contained the words -"And confirm further arrangements that if necessary you are to extend the period of delivery somewhat." A monthly delivery of between 270 and 280 tons would have completed the contract in nine months. The buyer took no coal in March or April. In May he required and got delivery of 24 tons, in June 4 tons, and at the end of January 1892 he had in all asked and received delivery of 1070 tons. During this period the seller had repeatedly pressed the buyer to take delivery of larger quantities, and finally refused to deliver more, and the buyer sued him for breach of contract. The Court assoilzied the defender, holding that the pursuer was himself in breach of the contract, the true construction of which was that deliveries of the coal were intended to be made in equal monthly quantities, as nearly as might be, of 300 tons, but never to exceed that amount. Barr v. Waldie, p. 185. Sale-Contract-Principal and Agent-Disclosed Principal-Title to Sue. Stevenson & Company, merchants in Manila, through their representatives in Liverpool and Glasgow, placed in the hands of Stewart, Brown, & Company, commission merchants, Glasgow, for sale a cargo of sugar on these terms "We have this day sold to you on account of Stevenson & Company about 700 tons sugar at £10, 12s. 3d. c.i.f. Liverpool. Stewart, Brown, & Company, in disposing of this cargo, sold 100 tons to Biggart & Fulton, Glasgow, on these terms:- "31st March 1892 We have this day sold to you on account of Messrs Stevenson, Manila, about 100 tons sugar at £10, 17s. 3d. c.i.f. Liverpool." Biggart & Fulton authorised Stewart & Brown to finance this transaction, paid them £100 to account, and ordered them to sell the sugar on its arrival. They did so, but the price realised was less than that due to them, and they sued Biggart & Fulton for the difference. The defenders maintained (1) that the pursuers being represented in the contract as agents for a disclosed principal were not entitled to sue; (2) that no such contract as there expressed was made between Stevenson & Company and the defenders ; and (3) that in this contract the pursuers were not acting as agents for Stevenson & Company or with their authority. Held (diss. Lord Rutherfurd Clark) that the contract of 31st March 1892 was at an end when the defenders had paid the contract price through the pursuers and taken delivery, and that the debt sued for arose not out of the contract but out of the agreement entered into subsequent thereto, and that the pursuers were entitled to sue the defenders as their principals in the sale made on their order. Biggart & Fulton v. Stewart, Brown, & Company, p. 204. Breach of Contract-Damages-Loss_of Profit on Sub-sale-Purchaser's Duty to Replace Goods. A merchant in Denmark contracted to supply a cargo of Danish hay and straw to a merchant in this country, warranted to be in sound condition on delivery. At the time of the sale it was intimated to the seller that the goods were bought for the purpose of re-sale. On arrival in this country the cargo was rejected as disconform to warranty. In an action by the purchaser against the seller for damages for breach of contract, it was admitted that the goods were properly rejected. The purchaser claimed as part of the damage the loss of profit on a sub-sale of the goods, and proved that at the time and place of delivery there was no market for goods of the same kind and quality as those contracted for; that they were not on public sale at the time, or quoted in any public market list open to his inspection. The seller averred in defence to the purchaser's claim that goods to the amount required might have been obtained by the purchaser in three separate parcels in the hands of private sellers in this country. Held that even on the assumption that the seller's averment was well founded, the purchaser was under no duty to take other than ordinary means to replace the goods, and was entitled to the whole profit he would have made on the sub-sale. Gunter & Company Lauritzen, p. 359. V. Sale Offer and Acceptance - Stipulation for Reply by Certain Day- Whether Acceptance Posted on that Day Timeous-Delay in Delivery from Insufficient Address. Upon 2nd March the defenders offered to buy from the pursuers a quantity of straw. The offer was stated to be "for reply by Monday 6th inst." The pursuers posted a letter accepting the offer on the evening of the 6th. Owing to the letter being insufficiently addressed it did not reach the defenders until the second instead of the first post on the 7th. The defenders repudiated the contract on the ground that the acceptance was too late. Held (1) that the pursuers timeously accepted defenders' offer by posting their acceptance on the 6th; and (2) that the pursuers were not to blame for the delay in the delivery of the letter on the 7th, as it was addressed in the same manner as their previous letters to the defenders who had never said that the address was insufficient. Jacobsen, Sons, & Company v. Underwood & Son, Limited, p. 545. Disconformity to Contract-Loss of Profit Consequential Damages-Duty of Timeous Inspection by Purchaser. In June 1891 a nursery gardener purchased from a firm of agricultural seedsmen 30 lbs. of what purported to be "Enfield Market Cabbage Seed," being so described on the invoice sent by the sellers and on the parcel of seed itself. This kind of seed ought to produce an early variety of cabbage. The seed was sown in July 1891 by the purchaser in his own garden, and the plants which came up were for the most part retailed by him to various customers during the months of March, April, and May 1892. After disposing of most of the plants he discovered that the seed in question had not been "Enfield Market Cabbage," but that of a late common cabbage. The evidence led showed that it should have been possible to see the disconformity of the seed to contract as early as September or October of the previous year. The purchaser claimed damages from the sellers, on the grounds (1) that claims for damages had been made against him by the purchasers of the plants; (2) that he had lost business owing to the disappointment of his customers; (3) that he had lost the profit which he would have made by retailing early cabbages, and (4) that even before September 1891 he had, through having sown the wrong kind of seed, lost the profitable occupation of his ground. Held that as the purchaser ought to have discovered the mistake in the autumn of 1891, and the first three grounds of damage depended primarily and directly on this failure of duty on his part, he was not entitled to damages on these heads, but that on the fourth head he was entitled to damages, his loss being due directly to the breach of contract on the part of the sellers. Wilson v. Carmichael & Sons, p. 634. Sale. See Contract-Property. Sale by Creditor. See Right in Security. Sale by Private Bargain Competent. See Right in Security. Sale of Excisable Liquors at Public Fair. See Justiciary Cases. Sale of Heritage. See Contract. Sale of Heritages without Authority of Court. See Trust. Sale of Poisons by Unregistered Assistant. See Justiciary Cases. - Sale to Local Authority. See Tramway. Salmon Fishings. Fishings not ex adverso of Lands-Title to Sue--Prescription. The lands belonging to A and B, bounded on the north by the Dee, marched inland, but at the river bank were separated by a glebe. It was quite uncertain out of what lands the glebe had originally been designated, but it was admitted that the salmon fishings ex adverso did not belong to it. Those ex adverso of the eastern part belonged to B. A, who held his lands, together with the salmon fishings in the water of the Dee belonging to the said lands," raised an action against B claiming exclusive right to those ex adverso of the western part, and adduced a large amount of evidence supporting his contention as to the boundary, but failed to prove exclusive possession for the prescriptive period. Held that he had no title to sue, and that the fishings in question did not necessarily belong to either A or B, but might belong to the Crown. Opinion expressed that salmon fishings were an estate in land in the sense of the 34th section of the Conveyancing Act of 1874, and that accordingly proof of possession for twenty years would have been sufficient; also that possession by rod alone would have sufficed, as net and coble could not be used in the water in question. Ogston v. Stewart, p. 153. Scarcement. See Property. School-"Old Schoolmaster"-Government Grant -Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), sec. 55. An "old schoolmaster" was allowed by the school board to draw the full annual Government grant earned by the school until 1892. In 1888 and 1890 the school board arranged with him that as he was drawing said grant in full he should pay the salaries of certain pupil teachers. In 1892 they intimated to him that in future they proposed to give him only a portion of the Government grant but that they would relieve him of these salaries. His total emoluments continued to exceed those he enjoyed at the passing of the Education Act. In 1893 he brought an action against the school board for payment of the full Government grant received for 1892-93, in which he averred that he was entitled to the same in terms of his appointment and according to the usage of the parish, and further, by virtue of the agreements of 1888 and 1890. Held that the action fell to be dismissed as irrelevant. Observed that the only right conferred upon old schoolmasters by the Education Act was to have as their total emoluments a sum not less than they enjoyed at the passing of the Act, that since then the Government grant was paid not to the schoolmaster, but to the school board, and that the pursuer had failed to set forth any contract between him and the school board under which he could claim to receive such grant. Macvicar v. School Board of Kiltearn, p. 378. Seamen Injured by Defective Ladder. See Reparation. Search Warrant, Competency of if Granted by Magistrate. See Justiciary Cases. Separate Defences. See Process. Separation. See Husband and Wife. Sequestration Sequestration Granted to Enforce Compliance with Order of Court - Recal of Sequestration. The estates of a lady who had removed her niece out of the jurisdiction of the Court, and had failed to obey an order ordaining her to appear personally at the bar, were sequestrated to enforce compliance with said order. Upon her submitting herself absolutely to the judgment of the Court, the sequestration was recalled without requiring her personal attendance. Fisher v. Edgar, p. 862. See Bankruptcy. Sequestration of Client. See Agent and Client. Setting Back Buildings. See Burgh. Settlement. See Succession-Poor. Settlement, Mutual. See Marriage-Contract. Shares Allotted as Promotion Money. See Sheriff. See Process-Road. Sheriff Acting in Administrative Capacity. See Appeal. Ship-Bill of Lading-Discrepancy between Quantity of Goods in Bill of Lading and Quantity Delivered Onus. Where the quantity of goods delivered is less than the quantity stated in the bill of lading signed by the shipmaster, the onus of proving that the greater quantity was not in fact shipped, so as to relieve the ship from accounting for such quantity to the holder of the bill of lading, rests with the shipowner. Where a master signed for 910 bales of jute and only 898 bales were delivered, the owner was held not to have discharged this onus by the evidence of the master and mate to the effect that all possible care had been taken both in shipping and in looking after the bales, and that those delivered must have exhausted the number shipped; especially as they explained. that during the voyage several of the bales had had to be taken out of the ship in consequence of stranding, and were replaced. Opinion (per Lord M'Laren) that where goods are measured by weight, pecuniary claims against the shipowner will not necessarily or probably arise upon a slight discrepancy between the weight stated in the bill of lading and that ascertained at delivery. Horsleys v. Grimond, p. 321. Ship-Charter-Party-Freight-Charterers Held not Entitled to Freight of Cargo Stowed on Deck by Master. By charter-party it was agreed between the owner and the charterers of a ship that the ship was to load a complete cargo at Glasgow and proceed therewith to Trinidad and Demerara, where, on discharging the outward cargo, she was to load a complete cargo to be conveyed and delivered at London. For the round voyage the charterers were to pay a slump freight of £1425. The owners guaranteed that the ship would carry 1400 tons dead weight cargo outwards, and 1550 tons dead weight cargo home. The ship had liberty to call at any port for coals. The voyage was completed, and the dead weight cargo guaranteed duly carried and delivered. On the homeward voyage the ship put in at St Michaels for coal, and while coaling the master took on board and stowed on deck a quantity of pineapples, the freight for which from St Michaels to London amounted to £76, 18s. 11d. The charterers of the ship refused to pay the freight stipulated in the charter-party, except under deduction of the sum earned by the carriage of the pineapples, contending that they had hired the entire ship for the round voyage for the slump sum of £1425, and that everything which the ship earned on the voyage belonged to them. Held that the freight earned for the carriage of the pineapples belonged to the shipowners and not to the charterers, and that the latter must pay the former the slump freight of £1425 stipulated in the charter-party without deduction. Wills & Company v. Burrell & Son, P. 417. Perilous Position of Ship at Quay Obstruction by Vessel Lying Outside and Refusing to More-Right to Cut Other Vessel's Ropes. A steamship lying in a perilous position at a quay was unable to sail because another vessel lying outside had the ropes mooring her to the quay stretched across said ship. During the whole of one night it was impossible for the outside and smaller vessel to sail with safety, and in the morning when she might |