the ten days it was in his possession. Indeed, there seems good reason to suspect that the thickness of breathing observed by Blackhall on the 21st October was just the remains of a cold (which by the 31st had developed itself into roaring) contracted after the sale, and which its journey to Bathgate on a very wet October afternoon, after being exposed at the Tryst, and its transmission to Haddington among a number of other horses "some of which had cold" (pp. 23-5), would fully account for.

After a careful consideration of the whole evidence, the Sheriff-Substitute has arrived at the conclusion that the pursuer has not proved that the horse in question must, beyond all doubt, have been a "roarer" when bought from the defender on 8th October.

The pursuer appealed, and the Sheriff having heard parties' procurators, pronounced the following judgment:

The Sheriff having considered the appeal of the pursuer, reclaiming petition, answers, proof, and whole process, dismisses the appeal, adheres to the Interlocutor appealed against, and decerns.

NOTE.-After careful consideration of this case, the Sheriff agrees both with the conclusion to which the Sheriff-Substitute has come, and with the grounds on which he has rested his judgment.

The question is simply, Was the horse in question a roarer on the day on which he was sold to the pursuer-viz., the 8th of October, 1861? The pursuer undertakes the onus of proving that he was, but his proof is entirely of an inferential

and retrospective character. He leads no evidence as to his condition before the sale, but he contends that as he was found to be a roarer about the end of October, and as he caught no cold while under the charge of himself, or of Mr Mill, to whom he re sold the animal, to which the disease of roaring was to be ascribed, the roaring must have existed, though undiscovered, before the sale. But looking to the proof led by the defender, it seems impossible to come to the conclusion that at the date of the sale the horse was in any such condition. Those who had charge of the horse for months before, the farrier who shod him for the sale, the person who trotted him out on that day, the veterinary surgeon, Mackintosh, who had seen him ploughing some time before-all concur in saying he neither had cold, cough, nor roaring before the sale. The pursuer, who is himself a professional horse-dealer, seems to have seen the horse trotted out, and he was assisted in his purchases at the sale by his brother and Mr Young, grazier. Had the disease then existed, surely it would have been obvious to some of the numerous witnesses who speak to the condition of the horse before and at the time of the sale. Nor can it be supposed that up to the 18th of October there had been any indication of the complaint, since on that day the pursuer sold him as sound to Mr Mill, giving him the same warranty he had received from the defender, which he unquestionably would not have done if any suspicion of roaring had been entertained by him or those who had charge of him. But within a few days thereafter he is observed to be thick in the wind, and by the end of the month he is found to be unsound from roaring. Now, if the defender had established that roaring necessarily supposes a previous cold caught some five or six weeks before, developed into disease at the end of that period, a question of nicety would arise upon the warranty-viz., whether a party selling a horse with no visible disease on him would be liable under such a warranty, if it turned out that the horse had in him at the time of the sale the seeds of disease in the shape of cold, though undiscoverable, and which afterwards developed themselves into unsoundness. But it is not necessary to deal with that question, for the evidence of the medical men does not establish that the disease of roaring might not originate in causes subsequent to the sale; and, without going into the evidence, the Sheriff is inclined to think with the SheriffSubstitute, that it was quite possible that the horse might have caught a cold (though not noticed by the pursuer) either when ridden during the rain from the Tryst ground to Bathgate, or at Calder Fair, or during the journey to Haddington, which might within some time after develop itself into roaring.

On the whole case, therefore, the Sheriff is of opinion that

the pursuer, on whom the onus of proof lies, has not conclusively established that there was any disease on the horse at the time of the sale.

Act. J. STOBIE, Haddington. Alt. R. HENDERSON, Falkirk.

17TH SEPTEMBER, 1862.

SHERIFF COURT, GREENOCK. (MR SHERIEF TENNENT.)

FORBES v. STORER.

Loan-Proof, onus of.-In an action for money lent without acknowledgment, the defender admitted that he had received the sum sued for, but added that it was as payment of a share in a joint business. It was maintained that the defender's admission was conclusive of the case, and the defender ought to prove the qualification.-Held, that the admission must be taken with its qualification, and that it lay with the pursuer to disprove the qualification.

THE pursuer, Catherine Forbes, domestic servant, Greenock, sued John Storer, watchmaker, Greenock, for repayment of £38, lent by her to him on 24th April, 1861, but for which she got no acknowledgment.

The defender denied liability, and pled that the transaction was not a loan, but that he received the money from the pursuer as her share and interest in a tobacconist business carried on by them in co-partnership. The pursuer maintained that the admitted receipt of the money by the defender was sufficient for her case, and that the defender was bound to prove the qualification attached to the admission. The defender argued that the admission was to be taken as a whole or not at all.

The Sheriff-Substitute held that the defender was

bound to prove the qualification, but the Sheriff (Fraser), on appeal by the defender, pronounced the following Interlocutor:

The Sheriff having considered the whole process, sustains the defender's appeal, recalls the Interlocutor appealed against, and finds the defender entitled to the expenses of the appeal, modifies the same to £1 10s; farther, allows the pursuer a proof of her averments, and to the defender a conjunct probation; grants diligence against havers and witnesses, and remits to the Sheriff-Substitute to take the proof to be adduced, and decerns.

the defender with their qualifications. She cannot take one NOTE. The pursuer must take the judicial admissions of bit of the admission and reject the rest. If she will not take the admission as a whole, she must begin the proof by disprov ing the qualification (Donaldson & Milne, 10th June, 1852, 14 D., 849; Campbell v. M'Artney, 14 D., 1086); or if she does not mean to rely on the admissions at all, she must prove her case otherwise. The mistake which the pursuer makes is in supposing that the defender must prove the qualifications to his judicial admissions. This is clearly not law.

1858, assuming that the petitioner was the sole partner of that firm, or even that he himself owed them that sum on former transactions. In this transaction it is clear that the oatmeal was pledged for a specific sum, which sum the respondents themselves admit that the petitioner has repaid. It was therefore the subject of a specific pledge, and the respon dents have no right to retain it for any general balance that may be due on other transactions.

This Interlocutor was appealed, and parties' procurators having been heard, the Sheriff (Sir Archibald Alison) pronounced the following judgment:

Having heard parties' procurators under the defenders' appeal upon the Interlocutor appealed against and whole process, adheres to the Interlocutor appealed from, with this variation or alteration, that of consent the pursuer, before extract, is to make payment to the defenders, in addition to the sum of £189 already paid, of the sum of £26 5s, which is admitted by the pursuer as the price of flour got by him on 15th February, 1862, and also the further sum of £2 17s 2d, being additional charges connected with the meal in question, and, quoad ultra, dismisses the appeal.

NOTE. The present case involves a very important ques. tion, and was pleaded with great ability on both sides before the Sheriff, under the appeal; and although the Sheriff was at first much impressed by the argument of Mr Forbes on behalf of the defender, yet Mr Galbraith's reply for the pursuer convinced him that the Interlocutor under review is based on sound principles.

The view which he takes of the case is this-The right of retention in our law is rested upon two grounds; first, the right of retaining one's own property till the counterpart of an obligation contracted in regard to it has been discharged. It is upon this principle that it has been repeatedly decided by the Court of Session that a seller of any article, if he does not expressly agree to waive his right of retention by giving credit, is entitled to retain the article sold till the price is paid; second, the other principle, in which the right of retention is founded, is rested on the custom of merchants in some particular line of business for the advantage and interest of commerce. It is on this principle that in certain lines of business, as those of a factor, a broker, a banker, and some others, there is a right of retention established over securities or property lodged in security of a general balance on the whole accounts. But, excepting in one or other of these two cases, that general rule is, that property deposited in pledge, in security of a particular advance, can be retained only in security of that advance, and must be given up when that advance is repaid. The pledgee is not entitled to say, except in the above-mentioned cases, that, having got hold of his debtor's property any how, and even upon a title of possession which has now come to an end, he is still entitled to retain it in security of a balance arising upon previous transactions. The foundation on which the latter rule rests, is, that the right of retention, to be valid in law, must be founded upon a legal right of possession, arising either from the inherent right of every proprietor, till the counterpart of obligations contracted in regard to it have been discharged or introduced by the general usage in regard to transactions of the kind in question are fulfilled. But if, as in the present case, property has been deposited as a security for a specific advance, and for no more, the pledgee has no right to continue the possession of the article after the specific advance made on its security has been repaid; each article deposited must stand its own advance, but is not bound to stand any other A pawn broker may retain every article for a sum for which the whole were pledged, but not for unpaid balances on former pledges, as to which he must have recourse to an ordinary action for payment.

In the present case it is admited on record that the oatmeal in question was deposited in security of a bill for £189, at two months, which was retired on the day of payment, and is produced in process by the pursuer. This being so, the defenders' legal right to retain the custody of the meal has come to an end, and the defenders, who neither hold it under an absolute right of property, nor under any established usage of trade, but simply as pledgees, are bound to restore after the advances for which it was impledged have been repaid.

23D SEPTEMBER, 1862.

SHERIFF COURT, PERTH. (MB SHERIFF BARCLAY.)

SPOWART & Co. v. TAYLOR.

Joint-Stock Company-Unregistered-Liability of Members-"Joint-Stock Companies Act, 1856,❞ sec. 4.A joint-stock company, not registered under "JointStock Companies' Act, 1856," whose members exceeded twenty in number, incurred a debt, and afterwards ceased to trade. The creditor sued a single member of the company for the debt.-Held, that under the 4th section of the Act, he was liable, and deeree given accordingly.

THE defender in this action became a shareholder of the Perth Associative Provision Society. This society, after doing business for some time, gave up trading, but left certain debts unpaid, and among the rest one for coals purchased for its baking department. The coal merchants did not choose to summon all the 200 or 300 shareholders for recovery of their claim, but fixed on one of them having known substance. After a legal contest the Sheriff pronounced the following judgments in the

action:

Having heard parties' procurators, and made avizandum with the process, Finds the constitution of the debt libelled proved, and payment or satisfaction thereof not alleged: Finds it admitted that the Perth Associative Provision Society, to which the furnishings, the price of which is sued for, were made, was an unregistered partnership of more than twenty persons, carrying on business or trade having for its object gain, and that the defender was a shareholder in said Society: Therefore finds, in terms of the Joint Stock Companies' Act, 1856, section 4, that the defender, as one of the partners of said Society, is severally liable for the pursuers' debt, and has been competently sued in this action without calling therein any other members of the said Society or partnership: Therefore, decerns against the defender in terms of the summons; finds the defender liable in expenses.

NOTE. The only plea urged at the debate was, that the fourth section of the Act only contemplated debts constituted against the Company or partnership previous to claiming from a partner who may be in total ignorance of the transactions of the Society.

According to the common law, a company debt must be constituted against the company before it can be demanded from a partner; and where the Company is dissolved then all the parties must be called at least where they are resident within the jurisdiction of the Court. (17th June, 1862. Muir.)

But the 4th section of the Joint Stock Act carries the case out of the rule of common law. Nothing is said as to whether the debt be constituted or not. But in words the most express declares each partner severally liable for the whole debts of the partnership, without calling any of his copartners. To adopt the defender's plea would be to set aside the statute. The Society is now no longer in existence, and so cannot be called; and to convene the numerous partners or their representatives would be as impossible.

The provision is certainly of fearful import, as thus the whole claims of a partnership may be rested on one individual, and his relief against the others is not provided for and seems of difficult solution. The Legislature was conferring great privileges on Joint Stock Associations who placed themselves under the statute, and as a counterpart they imposed severe responsi bilities on such as did not come within the Act. The risk is, who voluntarily agree to run the risk which is nowise comno doubt, very great. But parties have themselves to blame pensated by any small amount of possible gain which can be reaped. The final issue of the Association in which this action had its origin is only one of many similar speculations. The whole concern is placed under the real management of one

admitted, is proveable only scripto vel juramento of the present defender, to the effect of establishing liability against him, the company being dissolved, and Thomas B. Walker being bankrupt; (4) The statements of a bankrupt made in his examination under sequestration, are not evidence to any effect; (5) The alleged debt sued for not being due, except in so far as admitted, the present defenders are entitled to absolvitor, with costs. The record was closed, and after a hearing, the SheriffSubstitute allowed the pursuer a proof of his averments, and the defenders a proof of their defences, and granted diligence against witnesses and havers.

This Interlocutor was appealed, and the Sheriff (Sir Archibald Alison) pronounced the following Interlocutor:

Having heard parties' procurators under the defenders' appeal, upon the Interlocutor appealed against, and made avizandum, and considered the closed record and whole process, Finds, that the items in the account annexed to the summons for ropes and gunpowder, amounting to £3 2s 11d, are admitted: Finds, in regard to the items charged on the account, for goods supplied to workmen, under orders alleged to have been granted by Walker, as manager of the Company, that under the Mercantile Law Amendment Act, any goods furnished under alleged guarantees, can only be proved by the defender's writ or oath, so far as forming a guarantee or cautionary obligation, and not specific orders by the defenders, for goods to be furnished to another party, but that a direct order by the defender, or by Walker as manager of the Company, wherever the goods were to be sent to, and that the prices thereof were retained from the workmen's wages, for the Company's behoof, may be proved pro ut de jure: Finds, in regard to the items charged in the account, for sums said to have been advanced by the pursuers under obligations, or as to the said obligations, or I O U's being granted by Walker on his individual name, and not for the Company, are binding only upon the party by whom they are granted, and that these advances or loans can only be proved against the other defenders by their writ or oath; and with these findings and expla nations, adheres to the Interlocutor, allowing the proof, and dismisses the appeal.

The proof as restricted was then led, and parties' procurators having been heard thereon, the Sheriff-Substitute pronounced the following Interlocutor:-

The Sheriff-Substitute having heard parties' procurators on the proof, and whole process, Finds that this action concludes for £45 198 11d, for goods sold to the defenders, or others in their employment, and cash advanced: Finds, with reference to the charge for gunpowder, £3 2s 11d, that it is admitted: Finds, with reference to the IO U's, that it is already settled by final Interlocutors that these can only be proved against the company by the writ or oath of the defenders: Finds that the pursuer has failed to establish that claim by such proof: Finds, with reference to the goods alleged to have been supplied to the workmen on the orders of the defenders, are only vouched to the extent of £32 17s; Therefore, decerns against the defenders for £3 28 11d for gunpowder, and for £32 178, being the amount for which orders have been produced; quoad ultra, dismisses the action, and in respect of the pluris petitio, finds no expenses due.

NOTE. It was objected by the defenders that some of the guarantees had no specific name, and therefore were not good. The Sheriff-Substitute thinks they are perfectly good for the goods furnished under them, although names not mentioned. He has therefore allowed them.

This Interlocutor was appealed by both parties, and after a hearing, the Sheriff pronounced this judgment:

Having heard parties' procurators at great length under their mutual appeals upon the Interlocutor appealed against, proof adduced, and whole process, adheres to the said Inter locutor, with this variation on the point of expenses-That in respect the action concluded for £45 198 11d, while £32 17s has been decerned for, two-thirds expenses are found due to

the pursuer, of which appoints an account to be given in and taxed by the auditor, and, quoad ultra, dismisses the appeals for both parties.

NOTE. As this case was stated on record, and it appears to have been pleaded before the Sheriff Substitute, it was chiefly one of evidence, and the pursuer contented himself with bringing forward such proof, written and parole, as seemed sufficient the defenders' orders, written or parole, to their workmen. to establish that the furnishings in question were made upon Upon these branches of the case it seems sufficient to observe that the evidence seems sufficient to establish that the goods were furnished by the pursuer to the workmen chiefly upon the defenders' written order, but in some instances upon verbal order by them. So far the case seemed clear enough, and it was upon that principle that the Interlocutor of the SheriffSubstitute now under review was pronounced. But when the case was argued before the Sheriff under the appeal, the defenders, without contesting any points established by the evidence, or denying that the goods were furnished on their order to their workmen and the amount of each furnishing stopped off the workmen's pay, contented themselves with pleading two propositions in point of law, which was done with great ability by Mr Naismith. substantially one for payment of furnishings made on the defenders' guarantee, it could only be maintained under the Mercantile Law Amendment Act, in so far as founded on written obligations, and written orders were only produced for three items of no great amount; and 2d. That even supposing writ ten orders for the whole of the furnishings had been produced, it would only let in the other objection-that such written orders were in direct violation of the Truck Act, which enacts, generally and without exception, that all payments to workinen shall be illegal unless paid in the current coin of the realm. The Sheriff conceives that both these pleas are illfounded in the present case in point of law; and as the plea of the defenders is an ungracious one-amounting, as it does, to an effort on their part to avoid payment to the pursuer of furnishings made to their workmen on their order, and the amount of which they already have in their pocket, having stopped it off their workmen's pay-he does not feel himself under any obligation to stretch a legal point in order to arrive at an inequitable result.

These were-1st. That as this action was

The first objection, namely, that under the Mercantile Amendment Act, the action is unfounded, except in so far as it is based on written guarantees, appears to be sufficiently answered by the observation that this is not a case of guaran tee at all, but one on a direct order, written or verbal, by the defenders to the pursuer, to furnish goods to a third party upon their (the defenders') account. The distinction between such a case and that of a proper guarantee is that, in the present instance, there is only one obligation, namely, that of the defenders, who gave the order, whereas, in every cautionary obligation, there are two obligants-that of the principal debtor and the cautioner. There is nothing incompetent in a person giving an order for goods to be furnished to himself, or, in the course of business, on his own order for goods to be furnished to another. The present case is one of that description; decisive proof of which is to be found in the fact that the only obligant relied on for the furnishing was the defender, who bound his firm, and that the workmen to whom the furnishings were delivered were not bound at all, at least to the pursuer. The case, therefore, is not one of guarantee at all falling under the Act, but one of a direct order, which can be given either verbally or in writing, and to which the Act does not apply at all.

The second objection founded on the Truck Act appears at first sight more serious, but it appears to the Sheriff that when the facts are considered it is not applicable. The pursuer, it is to be observed, is not alleged to have any concern direct or indirect with the defenders' colliery; if he had, there can be no doubt the Truck Act would have been applicable. The present case, therefore, is one of furnishings made to workmen by a stranger, third party, unconnected with the master, upon the orders of the latter. The Sheriff is not aware of any decision, finding that in such a case the Truck Act applies, and that any violation of it constitutes a malum in se, which renders the case incapable of founding an action even in a question between the person giving the order and the party who complies with it, even although the workman is no party to the process. The enactment in the Truck Act, sec. 1, enacts that in all contracts hereafter to be made for the paying