case. The opinion of the Court, though not without hesitation, was, that the testator, a blind man of ninety, did at times labour under incapacity, while at other times his faculties, though impaired, were not wholly obliterated, and therefore that the verdict of the jury in the circumstances ought not to be disturbed. It was said that the interest of the defender under the settlement was very small. That was very likely the case, and he might have merely acted inconsiderately; but still the want of motive to defraud or circumvent was not sufficient to prevent the deed being set aside.

STEPHEN AND SONS v. SWAYNE AND BOVILL.-Dec. 12.
Retention-Slip Dues.

This was an action at the instance of Alexander Stephen and Sons, shipbuilders, Kelvinhaugh Slip Dock, Glasgow, against Swayne and Bovill, shipowners, Glasgow. In 1855 the pursuers were employed by the defenders to repair their ship 'Hurricane,' which was accordingly placed in their slip. The repairs were completed in January 1856, when an account was rendered to the defenders amounting to L.3388, 14s. 9d. On 17th January 1859, it was agreed to strike off L.581, 14s. 9d., and the balance due was adjusted at L.2807. That sum was not then paid, though the pursuers say that it should have then been paid in cash; while the defenders allege that it was to be provided by trade bills for L.2000, and their own acceptances for L.807 at four months. The pursuers retained the ship in security for payment till July 1856, when the L.2807 was paid, reserving to them a claim for interest, slip dues, and damages. The present action was raised to make good these three claims, amounting respectively to L.73, 1s. 10d., L.740, 14s. 3d., and L.1000. The slip dues were calculated at certain fixed rates per day that the ship remained on the slip. The Lord Ordinary (Ardmillan) held that the pursuers were entitled to issues on all their claims; his Lordship, however, treating the slip dues as truly a part of the damages. The Court were of opinion that no issue could be given in regard to the slip dues and damages. Slip dues could only be demanded in respect of a contract between the parties, express or implied; but none such was set out by the pursuers.

Adv., SYME v. HARVEY.-Dec. 13.

Heritable and Moveable — Greenhouses.

In 1853, Syme and Middlemass, who were nurserymen and seedsmen in Glasgow, obtained a five years' lease of the garden of Keppoch House. These gardens were not then nursery-gardens, but in 1854 they were made so, the tenants erecting a propagating house, which cost them L.40; greenhouses, which cost them L.100; and potting-houses, the cost of which did not appear. In 1858 the lease expired, but the tenancy was continued for another year. In September of that year, Syme and Middlemass were sequestrated, and the trustee on their estate proposed to sell the glass houses. Harvey, who in the present question must be treated as the landlord, interposed, requiring that the gardens should be restored to their condition in 1853, but forbidding that the erection should be removed. The sale proceeded. Syme sided with the creditors, and is now

in their right in regard to the glass houses. Interdict was then applied for. There was no doubt that Harvey was quite aware of the changes which had been made on the gardens. The Sheriff-substitute refused it, holding that the subjects in question might be removed by the tenant. It should be explained that the houses consisted of brick walls about three feet high, upon which the glass roofs were placed. Syme only claimed the glass roofs, but stated that he was willing to take away the brick foundations also, if that was desired. The Sheriff altered the Substitute's interlocutor, and held that the subjects were heritable; but the Court reversed the Sheriff's interlocutor, and found that the tenant was entitled to remove the glass. Per Curiam: The original law as to what were fixtures to the soil in questions between heir and executor, was generally very favourable to the heir. The question also arose in other relations, as between liferenters and fiar, and between landlord and tenant. The law was less rigid in the last case than in any of the others; and as new trades arose, as land may become part of the effects of trading companies, it might be expected that the law regulating the rights of parties would change. It was not fixed by statute, but depended on principles which would admit of expansion in reference to the circumstances of each case. In the present case, the rights of the tenant must prevail; and they came to that conclusion on a consideration of the objects of the structures in connection with the business of a trading company, the temporary interest of the persons who erected them, and the costliness of the erections compared with the temporary interest of the tenants.

THE MAGISTRATES OF PERTH v. MRS DRUMMOND HAY.-Dec. 20.

Fishing-The Bermoney Boat.

This action commenced by a summons, of date 13th February 1856, at the instance of the Lord Provost, Magistrates, and Town Council of the City of Perth, against Miss Charlotte Elizabeth Richardson Hay of Seggieden, now wife of Henry Maurice Drummond Hay, LieutenantColonel in the Royal Perthshire Rifles Militia; and also against three persons, her tenants of the fishings of Seggieden. The bermoney mode of fishing is thus described and commented on by Lord Neaves, who believed it to be contrary to law:-'A pin or stake, or other fulcrum, is fixed in the alveus of the river, while another pin or fixture is fastened in the bank lower down the stream. Between these two points a rope is extended, along which a boat, called a bermoney boat, is made to play. In connection with the boat thus attached is another boat, being an ordinary coble, which, starting from the bermoney boat at the point or pin fixed in the stream, carries out the net for fishing into the current of the river. The tow rope of the net is left in the bermoney boat, and is taken back to land in that boat, in the line of the bermoney rope, while the outer end of the net is carried down the stream by the coble at a convenient sweep, and then landed near the pin on the shore, where the net is hauled in. The effect of this mechanism is, that the proprietor of the fishing can start with his fishing coble from a point further out in the stream than the fishers could gain by wading, so that, in a tidal river, the parties using this method can fish longer in each day at the same place than would otherwise be possible, being enabled thereby to fish not

only when the tide is out, but when it has risen so high that no one could stand in the water where the bermoney boat can reach. The bermoney boat is thus equivalent to a gangway or towing path projected into the channel, and affording an advanced basis for thence reaching the more central points of the stream, when these would be inaccessible without such a contrivance.' The First Division, by a majority, have adhered to the interlocutor of Lord Neaves, holding this mode of fishing to be illegal. The Lord President dissented, on the ground that the system was merely an improvement on fishing by net and coble, from which it was not distinguishable in point of principle. He could see no ground for the allegation that the stake, which was the only fixture, was injurious either to the navigation or to the fishing.

SECOND DIVISION.

Pet., GEORGE DUNLOP, FOR WARRANT ON DEPUTY-CLERK-REGISTER TO DELIVER UP A DEED.-Nov. 27.

In this case, which has been for some time under consideration of the Court, the Solicitor-General put in and read an affidavit by the petitioner's agent, to the effect that the petitioner, Mr Dunlop, was executor-nominate under the trust settlement of Lord Elphinstone of 1854; that a suit had been instituted in the Probate Court in England by Viscountess Hawarden, Lord Elphinstone's eldest sister and nearest of kin, against the petitioner, on the ground that the said deed is not the last will of Lord Elphinstone, and that English counsel had given an opinion, that for Mr Dunlop's case it was necessary to put in and prove the original will. The petitioner, Mr Dunlop, asked the Court alternatively to grant warrant to and authorize the Deputy-Clerk-Register, or other officer performing the functions of the office of Lord-Clerk-Register of Scotland, to deliver to the petitioner or his agents the aforesaid disposition and settlement on his depositing in its place an official extract, and granting a receipt and obligation for redelivery of the same within such time and under such penalty as your Lordships may appoint: or otherwise to grant warrant to and authorize the Deputy-Clerk-Register, or other officer, to deliver up the said deed to any Depute-Clerk or Assistant-Clerk of Session, or to such person as their Lordships may appoint, to be by him exhibited in the said Court of Probate on all necessary occasions within the space of six months from the date of your Lordships' warrant, and thereafter returned to the record. It appeared that the later practice of the Court had been to grant warrant in terms analogous to the second alternative of the prayer; but that in the last case where such a warrant had been granted, the clerk had reported that he was not allowed to comply with the condition of not parting with the custody of the document. The Court was of opinion that they ought not again to grant a warrant under terms which they had not the means of enforcing. In the present case, as the production of the original deed appeared to be essential, they allowed it to be delivered to the petitioner on his depositing a certified extract, and coming under an obligation to replace the original within six months.

MRS HUTTON v. HER HUSBAND.-Nov. 28.

Process-Aliment.

This was an action for aliment, in which the Lord Ordinary had pronounced decree in absence, as allowed by the Conjugal Rights Act. The defender reclaimed, and asked to be reponed. The Court pronounced an interlocutor in common form, remitting to the Lord Ordinary to repone.

Pet., SCHULTZ v. ROBINSON AND NIVEN.-Dec. 5.

Maritime-Arrestment-Foreign.

The vessel'Ueckermunde,' of the port of Ueckermunde in Prussia, arrived in Leith on 25th September 1860. On 5th October following, she was arrested by the respondents, as creditors of a Mr Wittemberg of Stettin, alleged to be part owner of the ship. This petition for recall of the arrestment was presented by Mr Schultz, the captain, and also a part owner, on the ground that, before the date of the arrestments—viz., on 4th September-Wittemberg had sold his shares to Mr Kuhl of Stettin. In their answers to the petition, the arresting creditors maintained-1st, that the sale had not been completed, as required by Prussian law, at the date of the arrestments, because the transfer had not been recorded on the beilbrief, or ship's sailing title; and, 2d, that the sale was fraudulent and collusive. After various proceedings, the Court, on 20th March 1861, approved of a joint case for the opinion of a Prussian counsel, and directed it to be transmitted to the Secretary of the British Embassy at Berlin, for the purpose of obtaining such opinion. An opinion was returned, that it is not necessary, in order to the transference of the property of a vessel, that the sale should be recorded on the beilbrief, or in any public Court, or in any public register,' and that the want of the recording has no influence whatever upon the right of a purchaser.' In the case of two sales, the second transference being recorded first on the beilbrief, the counsel answered that the second purchaser excluded the right of the first. The respondents contended that this opinion was quite inconsistent, and could not be adopted by the Court. Further, that a ship could be arrested like any other moveable subject, and was not peculiar as regards the title. The Court held that it was clearly settled in the law of all maritime countries, that a written title was necessary to the transference of shipping property. The opinion of Prussian counsel in this case was in harmony with maritime law; and as it appeared that, prior to the date of the arrestments, the debtor had transferred his share by bill of sale, the arrestments were inept.

ANDERSON v. LORD MORTON'S TRUSTEES.-Dec. 6.
Property Right of Way.

The pursuers moved for a remit to a land surveyor, to ascertain the state of the footpath from Aberdour to Starleyburn, stating that at one end of the road there was a gate which it was troublesome to unfasten, and that at the other end there was a strong gate which was kept locked, that foot-passengers had to go over the wall by a flight of steps. They did not object to this gate being kept locked, if a turnstile were made in it. The public were entitled to have the obstructions removed. The Lord Justice-Clerk said that the path was adjusted in 1856, and the pursuers admitted that the path is in the same state now. No complaints

were made then; and it would not do for the pursuers to come now and say that they had been a great deal too soft in 1856. He was for refusing the motion. The motion was refused (Lord Cowan dubitante). BORTHWICK (BLANTYRE'S TRUSTEES) v. THE LORD ADVOCATE.-Dec. 6. Production of Documents-Closed Record.

Borthwick brought a suspension of a charge at the instance of the Lord Advocate on her Majesty's behalf, proceeding upon affidavit of danger by Donald Horne, Esq., W.S., Edinburgh, alleging himself to be interim receiver of Crown rents. The suspender, in his reasons of suspension, averred that the said Donald Horne is not an officer of the revenue,' and called for the production of Mr Horne's appointment. Mr Horne was agent for the respondent in the litigation. After the record had been closed, a proof was led, and certain documents found in Mr Horne's office were tendered in proof of his appointment, as also certain other documents, supplementary or explanatory of the others, which had been sent by the Commissioners of Woods and Forests. The production of the documents was objected to as having been in possession of the respondent, and not produced by him until after the record was closed. The Commissioner repelled the objection, and Lord Ardmillan, on appeal, sustained his deliverance. The Second Division, in respect of the importance of the question, ordered minutes of debate to be laid before all the judges. The Lord President (with whom Lords Ivory and Deas concurred) was for adhering, on the ground that the provisions of Act of Sederunt of 1828 applied only to writings founded on by the party, and which were in his possession, or within his power, at the time of closing the record. The documents here were not in that predicament, being merely adminicles of evidence required to obviate an objection raised by the suspender to the regularity or efficacy of proceedings preliminary to the applications on which the decree ex facie regular was obtained, and therefore were not, in the sense of the Act of Sederunt, writings founded on' by the respondent. The writings could not be held to be in the respondent's possession, or within his power. Mr Horne, who was the proper custodier of his own appointment, was not a litigant here. A majority of the consulted judges being substantially of the same opinion, the Second Division, on advising, adhered by a majority, Lord Benholme alone being of opinion that the provisions of the Act of Sederunt were applicable.

PETER BRUCE v. THOMAS LINTON AND ALEXANDER M‘DOUGALL.-Dec. 13.

Civil or Criminal Statute, 16 and 17 Vict., cap. 67.

On this case, which involves the question, whether in a prosecution for bartering or selling spirits without a certificate, under the Act 16 and 17 Vict., cap. 67, the defender in such prosecution is competent and compellable to give evidence as a witness, the consulted judges returned. opinions in the negative. The following opinion, in which the Lord President concurred, was signed by Lords Neaves, Mackenzie, and Jerviswoode :-We are of opinion that in a prosecution for bartering or selling spirits without a certificate, under the Act 16 and 17 Vict., cap. 67, the defender in such prosecution is not competent or compellable to