MARION CAMERON v. PETER CAMPBELL, Jun. Bastard-Judicial Examination of Parties.-In an action of affiliation, the pursuer moved that the defender be ordained to appear for judicial examination, and a counter motion was made that the pursuer be ordained to appear for a similar purpose.—Held, that the established practice in the Sheriff Court of Perthshire is to allow the judicial examination of defenders in such cases, and not to allow the judicial examination of pursuers. ON 17th June, 1861, the pursuer raised an action for the aliment of an illegitimate child, born on 21st May, 1861, of which child, it was alleged, the defender was the father. The defender denied the paternity, and a record was made up and closed on condescendence and defences, The defender, in the first article of his counter-statements, averred that the pursuer, during the summer and autumn of 1860, was in terms of intimacy, and carried on an illicit intercourse, with a person whom he named and designed, and that, during that time, she was frequently alone in the company of such person, in secluded places in the neighbourhood of the village of S-, both at night, and during the day, and under suspicious cirThe pursuer denied such averment; and she pleaded that it was irrelevant in law, and ought not to be sent to probation. cumstances. After hearing parties' procurators on the closed record, the Sheriff-Substitute allowed "the pursuer a proof of her averments, and the defender a proof of the first article of his statements, and to both parties conjunct proof.” The pursuer then moved the Sheriff to fix a diet for parties proving, and to ordain the defender to appear to be judicially examined, before entering upon such proof. The defender, by a separate motion, moved that the pursuer be ordained to appear for the same purpose. Soutar, for the pursuer, objected to the defender's motion. It is contrary to the usual practice, in the Courts of Perthshire, to order the judicial examination! of pursuers, in cases of affiliation. The defender had not shown cause to warrant a departure from the ordinary procedure. The Sheriff-Substitute granted the pursuer's motion; refused the defender's motion to have the pursuer judicially examined, and assigned a diet for the defender's judicial examination, and for parties proving. Against such Interlocutor, in so far as it ordained the judicial examination of the defender and refused the pursuer's judicial examination, the defender appealed. The Sheriff (E. S. Gordon, Esq.) ordered a reclaiming petition and answers to be lodged, adding, in a NOTE.-The point raised by the defender's appeal, is of importance, as to the procedure in affiliation cases generally, and, therefore, the Sheriff wishes to consider the arguments which may be adduced by the parties, in support of their respective views. In the eastern district of the county, the Sheriff finds that a judicial examination is allowed, in all such cases, if it is asked; but it seems not free from a doubt, now that the pursuer and defender can be adduced as witnesses, whether it is proper to continue that practice. Before settling so important a matter, the Sheriff wishes to have the benefit of the arguments of the parties. The defender cited among others, Patrick, 26th Nov. 1845, 8 D. 138; A. B., 23d Dec., 1843, 6 D. 342; Kirkpatrick, 2d June, 1843, 5 D. 1104. The pursuer cited M'Glashan's Practice, 236, 16 Vict. c. 20, sect. 6, 1853; Barclay's Dig. voce "Bastard," p. 50; M'Kellar, 7th Feb., 1862, 34 Jur. 245. Thereupon the following Inter locutor was pronounced: The Sheriff having considered the defender's appeal, with reclaiming petition, in support thereof; answers for the pur suer and whole process, dismisses the appeal, and affirms the Interlocutor appealed from. NOTE. The Sheriff has felt great difficulty in deciding the point raised by the defender's appeal, and, he confesses, that, if he considered the point open, he would have refused to order the defender to be judicially examined. The reasons which influence him, to entertain such an opinion, are these: Before the parties to a process were admissible as witnesses, it was usual, in actions of affiliation, to allow the parties to be examined judicially. The evidence, on oath, of the one party, could not then be obtained by the other party, without a reference to oath. But a party can now be examined, as a witness on oath, without his opponent being obliged to peril his case solely on the import of his evidence, as in the case of an oath on reference. Therefore, the cause which, it is thought, led to the practice of allowing judicial examinations, no longer is in operation. The reservation, in the 6th sect. of 16 and 17 Vict., cap. 20, was probably considered necessary, in order to preserve the right to examine, in consistorial cases, where parties cannot give evidence as witnesses. Even before this change in the law of evidence, some Judges expressed an opinion, opposed to the propriety of allowing judicial examina tions, in affiliation cases, as a general rule. (Kirkpatrick v. Donaldson, 5, D. B. M., 1104: Patrick v. Goodwin, 26th Nov., 1845, 8, D., 138.) The Sheriff fears that, in some cases, when a defender is examined, without being put on oath, he is induced to give answers favourable to his own case, but not consistent with truth, which he might not have done, if examined on oath. But after committing himself by statements in his judicial examination, when adduced as a witness for himself, he depones, generally, that his previous statements are true. If the pursuer wishes to begin her case, with the examination of the defender, it is now quite competent for her to do so, by examining him as a witness, a course sometimes followed in the Jury Court in other cases. But, while such are the Sheriff's impressions, he does not feel himself at liberty to act upon them; because, after inquiry, he finds that the practice of allowing the judicial examination of the defender, has been general, in all affiliation cases, in of evidence above referred to; and, farther, the practice ap this Court, and has continued since the changes in the law pears to have received some sauction from the Court, in the recent case of M Kellar v. Scott, 8th Feb., 1862. Although it does not appear from the report, that there was any argument submitted in regard to the competency and propriety of judicial examinations. As the practice has been not to order the judicial examina tion of the pursuer, the Sheriff will give effect to that practice also in the present case. Alt. M'LEAN, Dunblane, Act. SOUTAR, Crieff. SHERIFF COURT, ABERDEENSHIRE. 6TH NOVEMBER, 1862. (SHERIFFS WATSON & DAVIDSON.) This Interlocutor was appealed; and, after a hearing, the Sheriff (Davidson) pronounced the following judg ment: Having considered the appeals for the defenders, the Inspector of St Nicholas, and the Inspector of Birse respectively, THE INSPECTOR OF PETERHEAD V. THE INSPECTORS OF with the record, proof, and whole process, and heard parties ST NICHOLAS AND BIRSE. A Scotswoman married an Englishman who at his death had acquired no residential settlement in Scotland. After the husband's death, the wife obtained temporary relief from the parish in which she then resided. In an action, at the instance of the latter parish-Held, that the birth parish of a pauper Scotswoman, the wife of an Englishman, who has not acquired, or having acquired, has not retained a residential settlement in Scotland, is upon her husband's death bound to support her. THIS was an action at the instance of the Inspector of Peterhead, to recover certain advances made to Jane Black, or M'Kane, a pauper, who was born in the parish of Birse, and who had married an Englishman who predeceased her, having his residence, at the time of his death, in Peterhead. The action was directed against the Inspectors of St Nicholas and Birse, and concluded for decree against St Nicholas, in the event of its being found that the pauper's husband had acquired a settlement there; and for decree against Birse, in the event of its being found that no such settlement had been acquired. These and the other facts will be found fully stated in the following judgment, by the Sheriff-Substitute and the Sheriff-Depute, assoilzing the Inspector of St Nicholas, and finding the birth-parish of the pauper liable in her support. Having resumed consideration of this cause, Finds, in point of fact, that the pauper is the lawful daughter of the late William Black; that she was born in the parish of Birse, in May, 1831; that she resided with her father, in that parish, till 1835, when she came with her father to the parish of St Nicholas; that she lived in family with her father till 1847, when she became a domestic servant, and continued to reside in said parish, till November, 1848; that she then began to cohabit with John M'Kane, in February, 1858; that the said John M'Kane was not a native of Scotland, and never acquired an industrial settlement in this country; that he died in November, 1858; that prior to the death of the said John M'Kane, the pauper applied for parochial relief from the pursuer, and her application was sustained: Finds, in point of law, that on the pauper's marriage, her claims on her birth, or residential settlement, were suspended, and continued to be so during the subsistence of the marriage relation; that the settlement of her husband, whatever that was, became the settlement of herself, and her infant children; that, on pauperism intervening, her husband and his family might have been removed to the place of his settlement, by the burdened parish, in terms of the statute; that, on the death of her husband, her own suspended rights revived her husband having no settlement; and, in respect, the pauper has lost, if she had ever acquired, a residential settlement: Finds that her settle ment, is that of her birth settlement: Therefore, decerns against the defender, the Inspector of the parish of Birse, in terms of the libel. NOTE.-Every person born in Scotland, must be held to have a birth settlement which remains during life. In the case of a Scotchwoman marrying an Englishman, or Irishman, she may be removed, along with her husband, to the country of his birth, in the event of his falling into poverty; but after his death she cannot be so removed, and if no settlement then accrued to her, she would be in the anomalous position of being without a parish, and must either perish from want, or throw herself on whatever parish she chose for temporary residence, thereon; recalls the Interlocutor appealed against, assoilzies the defender, the Inspector of the parish of St Nicholas; decerns against the defender, the Inspector of the parish of Birse, in terms of the libel: Finds him liable in expenses of process to the pursuer, and to the defender, the Inspector of St Nicholas, and remits the accounts of expenses, when lodged, to the auditor, to tax and report, and decerns. NOTE. The husband of Jane M'Kane, the pauper, is said to have been an Englishman-at any rate he was not born in Scotland-and at the time of his death, he had not, if he ever had, a residential settlement in Scotland. It is not stated at what place he was born, nor is it averred that he had any known settlement in England or elsewhere. Jane M'Kane, his widow, was born in the parish of Birse. If she had a settlement, by residence, in St Nicholas, previous to 1840, when she and her husband came together, it was subsequently lost. At the time of his death she had no residential settlement-that is established by the proof. The claim of the pursuer, the Inspector of Peterhead, is for repayment of advances made to the pauper, Mrs M'Kane, after her husband's death. As the pauper has lost any resi dential settlement she may have had in St Nicholas, that parish is assoilzied. The question is between the parish of Peterhead-where · neither the pauper, nor her husband, had a settlement, but in which she became destitute, and has been relieved-and the parish of Birse, which is her birth settlement. At the hearing, the Inspector of Birse founded chiefly on the case of M'Rorie, March 7th, 1862. But that case only decided that, stante matrimonio, the birth settlement of the wife was not liable for her support. Here there is a very im. portant distinction, that the husband is dead. According to M'Rorie, if the pauper's husband were now alive, the parish of Birse would probably not be liable, her husband's settlement would be hers. Yet even there, there would be a distinction; for, in that case, the husband's settlement in Ireland seems to have been specified and admitted, or at least not denied. But here the husband is dead, and although it may be maintained, that, if the settlement of M'Kane-supposing him to have had a settlement in England-was the settlement of his wife, during his life, it must continue to be her settlement after his death, and until she loses it, or acquired a new settlement by marriage, or residence. There has been no decision to that effect, on the contrary, there are decisions which lead to a different result. For instance, in the case of Gibson v. Murray, 18th June, 1854, which was decided by the whole Court, it was held that the children of an Englishman, who married a Scotchwoman in Scotland, and who died without a settlement in Scotland, must be supported by the parish of their mother's birth settlement. The plea was taken in that case, and was, therefore, in the eye of the Court; although it appeared not to have been the parish of the dead father's settlement, and not either that seriously regarded, either by the Court or the parties, that of the mother's, or that of the children's birth, was liable. The parish of the widow's birth was held liable to support her children. The application for relief was there made for the children, and not for their mother; but, of course, if the application had been made for herself, as the pauper, the parish of her birth would have been held liable, as it is in the present case. The principle of the judgment will be found in the opinion of the Lord President, which was concurred in by the large. majority of the Court. The father was an Englishman, and died without a settlement in Scotland. The Lord President says:-"Such prior liability would, in the general case, attach to the parish in which the father held the settlement at the time of his death. But, in this case, the father had no known settlement in Scotland. He was by birth an Englishman, and he had not, so far as known, resided in any parish in Scotland, long enough to have acquired a settlement at all events, he had no settlement in the parish of Melrose. The mother was born in the parish of Peebles. Her maiden settlement was in that parish, and there is no question that, in so far as she ię concerned, she is now entitled to the benefit of that settlement, and has no other." "In the present case, the children are legitimate, but they derive no settlement through the father, for he had none in Scotland, either by birth, or, so far as is known, by residence." Farther, the place of the father's birth, in Gibson v. Murray, was distinctly stated, but here no place of birth is statedthere is no known settlement here. It is not even stated, or recorded, that M'Kane had any settlement in England at the time of his death. It is not stated as a fact, and, of course, there is no proof of it, that, if he had a birth settlement in England, the parish of that settlement would now be bound, by the law of England, to support his widow. The contention of the parish of Birse has been, that the pauper has a residential settlement of her own in St Nicholas, and that her husband had one there also. Neither of these statements is correct. The judgment now given is, indeed, covered by the defender's fifth plea in law. Trustee-Executor.-Two trustees were named in a trust deed, and both accepted; they were also nominated executors, and were confirmed. One only of the trustees and executors took the active management of the trust and intromitted with the funds. After a lapse of years the acting trustee and executor died insolvent, and his estates were sequestrated. In an action by a legatee against the surviving trustee.-Held, that having been guilty of culpa lata, the trustee was personally liable in payment of the legacy bequeathed to the legatee under the trust. THIS was an action of count reckoning and payment. The defender Johnstone was called as the surviving accepting trustee and executor under the deed of settlement or testament of the late John M'Leod, sometime merchant, afterwards residing in Glasgow, and as an individual, and personally responsible for the sums concluded for, and the other defender Cuningham as sole accepting trustee and executor of the deceased Charles Cuningham, accountant in Glasgow, the latter having been also an accepting trustee and executor of the said John M'Leod. After the action had been raised, the estates of Charles Cuningham were sequestrated, and J. Wyllie Guild, accountant, was appointed trustee. He was cited to the action, but no defences were lodged either by him or the defender Cuningham. In the deed of settlement under which the defenders were nominated, John M'Leod left to his son, the pursuer, a legacy of £1000, and the residue, if any, of his estate, after making payment of various other legacies. The interest of this legacy was to accumulate for the pursuer's benefit, in addition to the principal from the testator's death, which happened on 5th June, 1844, till the pursuer attained the age of twenty-one, which he did on 28th January, 1862; out of the interest was to be reserved a sum for the pursuer's maintenance and education, to be fixed by the trustees and executors. It appeared that the testator had been a member of the firm of Ross & M'Leod, of Toronto, Upper Canada, and on the dissolution of this firm, Ross, Mitchell & Co., of Toronto, arranged to carry on the business, and pay out the testator his capital in the firm of Ross & M'Leod, and that the testator's share of the company stock at his death was £5516 118 5d. This sum was given up by the defenders as executors, and they were confirmed to the estate on 23d July, 1844. It was averred that both defenders had intromitted with the estate, or had neglected their duty in regard to it; but Johnstone alleged that Cuningham having been the more intimate friend of the testator, he alone was allowed to intromit and manage the estate. Ross, Mitchell & Co. became bankrupt, and were sequestrated in Scotland, but dividends to the extent of 11s 5d per pound were realised from their estate, and these dividends had been paid to the other legatees of M'Leod either by the defender Cuningham, or his firm of Mein & Cuningham. It appeared that at the dissolution of the firm of Mein & Cuningham, the funds remaining had been transferred to the credit of Cuningham, and they remained in his custody till his death, when it appeared that he was insolvent, and his estates were afterwards sequestrated. Johnstone alleged that he had never intromitted with any portion of the funds, and that all had been managed by Cuningham; and for the last ten years the existence of the trust had escaped his recollection-he had never inquired after it, not remembering of its existence and never having had during that time occasion to do anything in its management. The record was made up by condescendence and defences. The pursuer pleaded (1) The said William Johnstone and the deceased Charles Cuningham having accepted of the office of trustees, and been appointed executors on the estate of the deceased John M'Leod, and having intromitted therewith, the defenders are bound to hold count and reckoning with the pursuer in regard to the legacy of £1000 and interest thereon, accumulated in terms of the settlement, and also the residue of the estate. (2) The pursuer is entitled to decree against said William Johnstone as surviving executor foresaid, and against the said Andrew Cuningham, as executor of said Charles Cuningham, jointly and severally, for the sum which may be due on the accounting; and, failing, an account for the sum of £585 2s 6d, with interest from 1st January, 1862. (3) In the event of its being found that the said William Johnstone did not intromit with the estate, yet, as he, in neglect of his duty as trustee and executor, paid to or allowed the said Charles Cuningham to uplift, intromit with, and use the provisions in the pursuer's favour at pleasure, he is personally responsible to the pursuer in the sum due him as libelled. (4) Even if it were the case that the defender did not intromit personally as trustee, yet, as his whole case on record is, that he allowed Charles Cuningham and Mein & Cuningham to intromit with the funds belonging to the pursuer uncontrolled during the last ten years, he is, according to his own confession, guilty of culpa lata, and bound to account and pay to the pursuer the sum admitted to be due. (5) A fortiori is the defender so liable, in respect that there was no power conferred on him by the settlement deceased Charles Cuningham, in payment to the pursuer of to appoint either Mr Cuningham or Mein & Cuningham as factor or intromitter with the estate. (6) Any questions of relief between the defender and Mr Mein, and Messrs Mein & Cuningham, are irrelevant. The defender Johnstone pleaded (1) The trust created by the deed of settlement and codicil of the deceased John M'Leod having lapsed by the death of Charles Cuningham, the said William Johnstone, even although he had the trust funds in his possession, could not lawfully pay them over to the pursuer, nor, if they had been invested, uplift and receive them. (2) The defender, William Johnstone, having been always ready and willing to concur with the pursuer in his obtaining the sum to which he is entitled out of the estate, and the trust having lapsed, the action was unnecessary, and is incompetent. (3) Generally, in the circumstances, the defender is entitled to absolvitor from the action, and to payment of his costs out of the estate. The record was then closed; and parties' procurators having been heard, the Sheriff-Substitute pronounced the following Interlocutor: the foresaid admitted sum of £585 2s 6d, with interest as libelled: Therefore, and under reference to the annexed note, repels the defences, and decerns against said defender, in terms of the alternative conclusions of the summons; reserving to him his claim of relief against the estate of the said Charles Cuningham, or of the said Mein & Cuningham: Finds the defenders also liable in expenses; allows an account thereof to be given in, and remits the same to the auditor, to tax and report. NOTE. This is a very hard case for Mr Johnstone, who relied implicitly on his co-trustee, Mr Charles Cuningham, as the party who took throughout, the main, if not the sole charge, as trustee. At the same time the documents in process acknowledge realization of the trust funds by both trustees; and there can be no doubt, that at the date of the discharges by the other legatees, the money effeiring to the pursuer's legacy, might have been safely invested, so as to be forthcoming at the proper period. Instead of that, it was allowed to remain, without inquiry, in the hands of Charles Cuningham, who, quoad hoc, acted as factor for the trustees. But in the case of Sym, 13th May, 1830, where a trustee was appointed factor, and the co-trustee neglected to see that a legacy was invested, in terms of the deed, and allowed the money to remain in the hands of the factor, who died insol vent, the co-trustee was held personally liable. There is no trustees from responsibility for omissions, and limiting it to protecting clause in M'Leod's deed of settlement saving the actual or personal intromissions. But even though there had been such a clause, or though it should be held that the general Having resumed consideration of this process, which has protecting provisions of the Act 24 and 25 Vict., cap. 84, fell lain over for a short time, with a view to an extrajudicial to be imported into the deed in question, it is settled, that arrangement that has not been carried out, in respect of the such protecting clause does not liberate trustees from the confailure of the defender, Andrew Cuningham, to lodge de- sequences of omissions which amount to culpa lata, or which fences, and of his having been held confessed by the Inter-indicate crassa negligentia. In the case of Seton, 18th Decemlocutor of 21st May last; decerns against him in terms ber, 1831, which is very analogous to the present-where cer of the alternative conclusions of the summons: Finds, as retain sums of money belonging to a trust estate were received after gards the defender, Johnstone, that it is admitted by him, that the trustee's death by one of the trustees who had been directed he and the now deceased Charles Cuningham, were the sole by the others to realise the trust property without receiving any accepting trustees and executors, under the deed of settlement express appointment as factor for the trust, and the trustea or testament, of the late John M'Leod, merchant in Glasgow, with the estate, but the deeds acknowledging receipt of these acted generally in the management of the trust and intromitted and that, as such, they realised the trust estate to an extent sufficient to yield a dividend of 11s 5d per pound, on the sums of money were subscribed by all the trustees, and after legacies bequeathed by the testator, including a legacy to the the first meeting no other meeting was held for eight years, pursuer of £1000: Finds that the state of the pursuer's claim by which time the managing trustee had become bankrupt, with a large balance due by him to the trust estate-it was against the trustees, as at the date of raising the action, is set forth in the account, No. 7/5, which shows a sum of £585 28 6d, and were not saved therefrom by the protecting clause. (See, held that the trustees were personally liable for such balance, to be resting owing to him, and it is not denied, by said de-in particular, the Note of the Lord Ordinary (Jeffrey) in the fender, that this is the correct sum: Finds it instructed by the sederunt book of M'Leod's estate, No. 7/1, as also by the three discharges, Nos. 7/2, 7/3, and 7/4, that the said defender, along with his co-trustee, the said Charles Cuningham, after realising the estate, paid the various legatees, with the exception of the pursuer, by three instalments, a dividend of 11s 5d, on their respective legacies, and took discharges for said payments in their joint names, the said discharges being dated so far back as the years 1848 and 1850: Finds, that the reason why the pursuer was not included in said payments was, that the legacy of £1000, bequeathed to him, was not payable till he should attain the age of twenty-one years, and he did not reach that age till the 28th January, last: Finds, that a sum effeiring to the dividend payable on the pursuer's said legacy was set aside, and, according to the said defender's statement, which the pursuer does not aver to be incorrect, was kept by the late Charles Cuningham, who took the active management of the trust, and was by him paid into his firm of Mein & Cuningham, and no portion of it has ever been paid to the said defender, who states, in article 6 of his defences, that, for the last ten years, the existence of the trust escaped his (the defender's) recollection, and that he never inquired after it, not remembering of its existence, and never having had, during that time, occasion to do anything in its management:" Finds that the said Charles Cuningham died insolvent, in April, 1861, and his estates have since been sequestrated: Finds, that, in the above circumstances, the said defender, Johnstone, both in respect of his intromissions with the trust estate, and of his neglect in failing to see that the amount payable to the pursuer, on his obtaining majority, was duly secured, is bound, jointly and severally, with the other de fender, Andrew Cuningham, as trustee and executor of the above case. See also the analagous cases of M'Clymont, February 14, 1827; and Kennedy, June 28, 1827; likewise For syth on Trusts, p. 310 et seq). It was pleaded for the defender, ham, a judicial factor, fell ante omnia to be appointed, whose that as the trust had lapsed by the death of Charles Cuningduty it would be to recover the trust funds and settle the pursuer's claim. But this view is not sound, if it be the fact that the trust funds have disappeared, and that a personal liability has been incurred. Mr Johnstone is clearly entitled to his relief against the estate, either of Charles Cuningham, or of Mein & Cuningham, or both, and the pursuer's receipt to him will operate as an assignation in his favour. This Interlocutor was appealed; and after hearing parties' procurators, Sir Archibald Alison pronounced the following judgment: Having heard parties' procurators under the defender Johnstone's appeal upon the Interlocutor appealed against, and having made avizandum, and considered the closed record, productions, and whole process, Finds it agreed on between the parties, that the only question to be considered and decided in this process is the general question of the defender, Mr Johnstone's liability, as co-trustee with the late Charles Cuningham-not the amount of the sum to be decerned for if that liability is established: Finds it admitted by the defender Johnstone that he, along with the now deceased Charles Cuningham, were the sole accepting trustees and executors of the late John M'Leod, and that, as such, they realised the deceased's trust estate to an extent which yielded a dividend of 11s 5d in the pound on the legacies bequeathed by the testator, including a legacy of £1000 to the pursuer: Finds that the defender and his co-trustee, Cuningham, after realising the estate, paid the various legatees, with the exception of the pursuer, the dividend on their respective legacies, and took discharges for the same in their joint names; but the dividend on the pursuer's legacy of £1000 was not paid, as it was not payable till he became of age, which he only did on 28th January last: Finds that a sum effeiring to the dividend on the pursuer's legacy was set aside, and was allowed by the defender Johnstone to be kept by his co-trustee, Cuningham, who took the active, if not the entire, management of the trust, and no portion of it was ever paid to the said defender, Johnstone: Finds that the said Charles Cuningham, the defender's co-trustee, died insolvent in April, 1861, and his estate has since been sequestrated, and the present action has been brought by the pursuer-one of the beneficiaries under the deed-against the surviving trustee, Johnstone, and the other defender, Andrew Cuningham, as trustee and executor of the late Charles Cuningham, jointly and severally, for the dividends effeiring to his legacy of £1000: Finds that in these circumstances the defender Johnstone is in point of law liable for the sum concluded for, as he incurred the liability of culpa lata by omitting to look to and secure the investment of the money due to the pursuer till he came of age, and that not having done so, but allowed the money to remain in the hands of his co-trustee, Cuningham, who is now dead, and his estates sequestrated, he is liable for the same, jointly and severally, with the other defender, as Cuningham's trustee and executor, against whom decree has been pronounced in absence: Finds it admitted that the sum decerned for, with interest, as libelled, is correct: Finds that there is no need of a judicial factor being appointed to supply the place of Charles Cuningham, the trustee who is now dead: Therefore, dismisses the appeal, and adheres to the Interlocutor appealed against, and decerns. Act. ALEXANDER & TAYLOR. Alt. NICOLSON & STIVEN. 18TH NOVEMBER, 1862. SHERIFF COURT, PERTH. (MR SHERIFF BARCLAY.) A. v. B. Process-Exhibition.-Held, incompetent for a superior to sue an exhibition of his vassal's titles in the Sheriff Court. A SUPERIOR instituted an action of exhibition of titles the titles sought; 2d. Granting that the pursuer is superior and the defender the proprietor of the subjects, and in posses sion of the title-deeds, there appears no authority for a superior at any time calling for exhibition of the whole titles of property within his superiority, which may comprehend family deeds of the most private nature; 3d. The object is not said to discover the state of the title with the view of ascertaining whether the feu is vacant, but that the superior may "ascertain the validity and import of the whole writs." With this it is not easy to perceive what the superior has to do farther than to have a vassal in his feu. The validity and import of the titles could not be judicially ascertained in this Court, and it cannot lend its authority for the purpose of merely satisfying the pursuer on these legal questions, which could have no judicial result. Suppose that the Court were to give decree, and the defender made the production, what would be the result? Still more difficult, were he to refuse and go to prison under a decree so utterly vague in the extent of the exhibition and its object, there may be no law to enforce a superior to keep a cartulary; but, if he does not, the blame and its consequences rest on himself. The public records give the investitures, and inquirers can ascertain who is in possession, either natural or civil. It does appear that our law at one time recognised an action, at the instance of the superior, of "shewing the title," but this, with the progress of peaceful times, has long been in desuetude. The only reference by the pursuer to a decided case is that of Rose v. Grant, in 1781; but that was not an action at the instance of a superior, but of a crown donatory to exhibit titles, in order to discover the amount of certain Crown duties payable from subjects burdened therewith. The remedy of a superior in modern times is either to sue an action of nonentry against the heir of the last entered vassal or an action of reductionimprobation of certain specified deeds granted to his prejudice. Both of these actions are still privative to the Supreme Court. On an appeal, the Sheriff (Gordon) affirmed with the following NOTE.-The Sheriff concurs in the remarks contained in the Note appended to the Interlocutor, and considers it unnecessary to add to them. Alt. FINDLAY, Act. HEPBURN. 18TH NOVEMBER, 1862. SHERIFF COURT, PERTH. (MR SHERIFF BARCLAY.) M'ROSTIE v. HOG. without stating any reason for the call. In defence, the Affiliation-Aliment-Defence.-Held, that an offer of defender stated that he had sent the titles to the superior for a charter, but disputed his liability for costs, as the action was incompetent-the only remedy being an action of nonentry in the Supreme Court. The Sheriff-Substitute ordered the pursuer to lodge a note of authorities in support of such an action, stating that during thirtythree years of his judicial experience, he had never met with any similar action, and had in vain searched the books for authorities. A note of authorities being lodged, the following Interlocutors were pronounced: Having resumed consideration of the defender's preliminary pleas, with note of authorities lodged for the pursuer, sustains the objection to the competency of the action, dismisses the same: Finds the defender entitled to expenses, remits the account thereof to the auditor to tax, and decerns. NOTE. This action calls on "a party to produce the whole writs and title deeds of and pertaining to a certain property, in order that the validity and import of the said writs and title-deeds may be ascertained by the pursuer." The objections to such an action are numerous-Ist. It is not said that the defender is proprietor of the subjects, or in possession of marriage was no defence to an action of aliment for an illegitimate child. A WOMAN prosecuted a man for aliment of an illegitimate child. The man sued the woman for damages in respect of breach of promise of marriage. In the first case (of aliment) the defender admitted the paternity, but offered to marry the mother of the child, and thereby secure its legitimation. The Sheriff-Substitute pronounced the following Interlocutor: Having advised the closed (short) record, in respect that the paternity of the child libelled is admitted, and the rates of aliment claimed not disputed, Finds that the defender cannot meet payment of the aliment by offer of marriage: Therefore, repels the defence, and decerns in terms of the summons: Finds the defender liable in expenses, etc. NOTE. The defender's plea might be offered in every case of aliment, and would be a novel mode of compelling marriage. On an appeal, the Sheriff (Gordon) affirmed the decerniture. |