Sums paid for sixteen years from which

income tax was claimable, but was
not claimed nor allowed, held that
action for repetition was not com-
petent, and same dismissed, 60.
Interest-

A legacy was left to a minor, payable
on his attaining majority, interest
to be payable until that event ar-
rived. The funds were meantime
directed to be invested in heritable
security, and this was partially done;
but as 4 per cent. interest was the
highest obtained, the trustees, under
the Deed of Settlement, offered that
rate of interest to the legatee, who
refused, he maintaining that in the
absence of any direction, legal in-
terest was what was due, and that
legal interest meant 5 per cent. per
annum. In an action for payment
of the interest at the rate of 5 per
cent. per annum, at the legatee's
instance, against the trustees and
residuary beneficiaries, decree given
in terms of the conclusions of the
summons, with expenses, 76.

Joint-Stock Company-

A joint-stock company, not registered
under "Joint-Stock 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 decree given
accordingly, 148.
Jurisdiction. See Domicile.

Landlord and Tenant-

A proprietor let to a tenant an urban
subject. The tenant sub-let a por-
tion, and thereafter fell into arrears
of his rent. The landlord obtained
warrant of sequestration against the
principal tenant, but included in the
inventory, goods belonging to the
sub-tenant, who was not made a
party to the proceedings. The sub-
tenant thereupon presented a peti-
tion for interdict. Held, that no
inversion of the use and possession
having been averred, and the right
to sub-let being implied in every set
of an urban subject, unless specially
excluded, the landlord was not en-
titled to sequestrate the sub-tenant
for the rent of the principal tenant,
he possessing and paying his rent
to the principal tenant in good
faith, 37.

A tenant granted a letter of removing,
engaging to remove at the term of
Martinmas. The landlord wished
to remove the tenant at the new
term, but as he maintained that, by
the
usage of the estate and district,
the old term was understood, he
applied for interdict against his
ejection at the new term. Held,
that the tenant was entitled to a
proof as to what was understood to
be the proper term of removal, and
proof allowed, 83.

In a lease of land a cautioner was
given as security for fulfilment of
the stipulations. The tenant fell
into arrears, and an action was

raised against him, under the 5th
Section of the Act of Sederunt,
1756, to ordain him to find caution
for the arrears and the five follow-
ing crops, on the allegation that the
cautioner in the lease was in different
circumstances from those in which
he was when the lease was entered
into. Defence, that caution had
been already found, and new cau-
tion, under the Act of Sederunt,
could not be demanded-repelled,
127.

An heritable creditor raised an action

of maills and duties, to which he
had called the debtor, who had been
made bankrupt and sequestrated.
His trustee had taken possession
of his whole estates, heritable and
moveable-the latter of which he
had sold. The bankrupt's friends
purchased the household furniture
back, and, by an arrangement with
the trustee, were allowed to remain
in his house. Founding on his
decreet of maills and duties, the
heritable creditor sequestrated the
bankrupt's furniture under the Small
Debt Act. Held, that there was no
tenancy; and that an heritable credi-
tor, in possession under a decreet of
maills and duties, could not seques-
trate a tenant's effects as under the
landlord's hypothec, 134.

The tenant of an urban subject refused
to grant a letter of removal, under
section 31 of 16 and 17 Vict., c. 80,
and in an action of removing under
that Act and the Act of Sederunt,
1756, the landlord concluded for
expenses, in respect of the tenant's
refusal to grant the letter. Held
(differing from Stewart v. Greig,
Law Magazine, April, 1861), that
the tenant was not bound to grant
a letter of removal, and that he was
not liable in the expenses of the
action of removing, 137.

A tenant, who had miscropped his
farm contrary to the terms of his
lease, and had failed to labour it
according to the rules of good hus-
bandry, found liable in the penal
rent for miscropping, and in damages
for deterioration of the land, 140.
Law Agent's Hypothec-

An account was incurred to a law
agent by a client, inter alia, for the
preparation of a certain deed; before
the account had been paid the agent
gave up the deed to the client, who,
after an interval, returned it, getting
in exchange a borrowing receipt in
usual terms. Held, in an action
for delivery by the client against
the agent, the account being still
unpaid, that the agent was bound
to deliver up the deed, as his right
of hypothec had ceased on his vol-
untarily parting with the deed and
taking it back under a borrowing
receipt, 57.

Law-Burrows. See Aliment.
Legacy. See Interest-Vesting.
Lien on Freight-

Previous payment of freight deter-
mines a seaman's lien thereon for
his wages, 82.
Lis Alibi Pendens. See Process.

In an action for money lent without
acknowledgment, the defender ad-
mitted that he had received the sum
sued for, but added that it was as
payment of a share in a joint busi-
ness. 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, 146.

Master and Servant-
Circumstances in which damages
awarded against the executrix of an
employer for injuries sustained by a
workman, 71.
Circumstances in which held, in an

action against a master, that in-
juries causing death had been oc-
casioned by the recklessness and
carelessness of the party injured and
of his fellow-workmen, and defen-
ders assoilzied, 62.
Circumstances in which a coalmaster
held liable in compensation for in-
juries sustained by a miner from a
defect in the workings, 68.
A fireman was engaged, in writing,
for a period of six months by the
owner and occupant of a coal-pit.
Shortly thereafter the coal-owner
let the pit. Two months thereafter
he verbally desired the fireman to
go and work to his tenant, but with-
out offering any guarantee that the
servant's engagement would not be
held as cancelled, or his wages
lessened. The fireman refused to
enter the tenant's service without
guarantee, and was dismissed. In
an action for full wages, as having
been wrongously dismissed, decree
given as concluded for, with ex-
penses, 113.

A warehouseman and traveller entered

Novation-

Circumstances in which held that a
debt had been innovated, and the
original debtors liberated, 80.
Next of Kin-

A next of kin is entitled to the office
of executor in preference to father
of a predeceasing daughter, who
takes one-half of the succession under
Dunlop's Act, 91.

Order to Pay. See Assignation.
Obliteration. See Draft or Order.

Old and New Terms. See Landlord
and Tenant.

Oath of Reference. See Process.

Poor-Settlement-

A Scotswoman married an English-
man who at his death had acquired no
residential setttlement 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 Scots woman, 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, 172.
See Assythment.

Apprentice.

Process-

A process which had fallen asleep be-
fore the Act 16 and 17 Vict., c. 80,
came into operation, and which had
not been moved in for more than
six months thereafter, stands dis-
missed, and cannot be wakened, 51.
A remit was made in a process on 6th
February, 1861, to an accountant
to report. The accountant did not
report for more than twelve months,
but during that period meetings had
taken place, and letters had passed
between the agents and the accoun-
tant, in which information and
vouchers were called for. After
more than twelve months from the
date of the remit, the pursuer's
agent enrolled the case for an order
on the accountant to report. Held,
that this was the proper form of
motion-that, by the proceedings
before the accountant, the process
did not stand dismissed, on a sound
construction of the 15th section of
the Sheriff Court Act of 1856, and
motion granted, 67.
Documents in a pursuer's possession
prior to raising an action, but not
produced before closing the record
(see Borthwick, 6th Dec., 1861), re-
fused to be received afterwards, 90.
See Evidence.

See Exhibition.
Purchase. See Sale.
Prescription-Triennial-

An Englishman incurred an account
in England and afterwards came to
reside in Scotland, where he lived
for two years and ten months, but
more than three years had elapsed
from the date of the last item of the
account. In an action for payment,
prescription was pleaded.
(in accordance with Don v. Lipman)
that the triennial prescription ap-
plied, 23.

Held,

Vecennial-Business books and rela-
tive vouchers of entries held not to
fall under the vecennial prescrip-
tion, 33.

It was objected to a bill as a voucher
for a claim to vote for the election
of a trustee that it was prescribed.
Held, that prescription was elided
by a declaration of the bankrupt
on a residue account produced, in
which the debt was admitted, 176.
Pawnbroker. See Husband and Wife.
Principal and Sub-Tenant. See Land-
lord and Tenant,

Personal Injuries. See Damages.
Publication. See Interdict.
Parole Proof-

An account sued for was found to be
prescribed, and proof of the resting
owing restricted to the writ or oath
of the debtor. Held, that as a refer-
ence to oath implied a judicial con-
tract, and might exclude review;
and as it was now competent to
examine a party in a cause as a
witness, it was not necessary to give
in a minute of reference, and that
the party should be examined as a
witness, 90.

Parish Church. See Assessment.

Railway Company-

A railway company found liable in
damages for cattle killed through
the insufficient fencing and watch-
ing of a level crossing, 5.
A railway passenger took out his
ticket from Aberdeen to Keith, but
asked to have luggage labelled for
Elgin, a station farther on. At
Keith the passenger rebooked to
Elgin. Part of his luggage was
lost between Keith and Elgin.
an action for the value-Held, that
the railway company was not liable,
and action dismissed, 5.
See Carrier.
Restitution. See Insolvency.
Ranking-

On

Circumstances in which a claim, in-
sufficiently vouched, was rejected, 01.
Removing. See Landlord and Tenant.
Railroad-
Claim by a turnpike against a railroad

for damages done to a highway,
repelled under the circumstances, 97.
Right of Salmon Fishing. See Interim
Interdict.

Railway. See Assythment.
Railway Act-

The company not bound to erect gates
to shut across the railway at a level
crossing of a public carriage road,
but bound to provide a gatekeeper,
160.

Stoppage in Transitu-
Circumstances in which found that
goods had been effectually stopped
in transitu, 1.
Sequestration-

A landlord raised a small debt action
for rent-obtained decree, and im-
prisoned the tenant. He thereafter
presented a petition of sequestration
in the ordinary court for the same
rent-obtained warrant and seques-
trated. Held, that the petition
was imcompetent, in respect of the
small debt decree previously ob-
tained, and having elected the
diligence by having used the com-
pulsitor of imprisonment, 3.

An heritable creditor found entitled
to a preference over the trustee on
a sequestrated estate for the current
half-year's interest on his bond at
the date of his sequestration, 114.
An heritable creditor raised an action
of maills and duties, to which he
had called the debtor, who had
been made bankrupt and seques-
trated. His trustee had taken
possession of his whole estates,
heritable and moveable-the latter
of which he had sold. The bank-
rupt's friends purchased the house.
hold furniture back, and, by an
arrangement with the trustee, were
allowed to remain in his house.
Founding on his decreet of maills
and duties, the heritable creditor
sequestrated the bankrupt's furni
ture under the Small Debt Act.
Held, that there was no tenancy;
and that an heritable creditor, in
possession under a decree of maills
and duties, could not sequestrate a
tenant's effects as under the land-
lord's hypothec, 134.

Sale-

Circumstances in which held that
goods had been ordered and deliver-
ed, and decreet given for the sum
sued for, 10.

A party conveyed absolutely to one
of his creditors an heritable subject
in security of a debt, qualified by a
back letter, which was recorded.
The granter thereafter became
bankrupt, and his trustee having
taken possession of the heritage,
advertised and offered it for sale,
but it was not sold. The creditor
now advertised a sale of the sub-
jects under his bond. Against this
threatened sale the trustee applied
for interdict. Held, that the trustee
was entitled to interdict, and to
carry out the sale in preference to
the heritable creditor, whose rights,
under his bond, were preserved, 79.
A document set forth a sale of goods,
but these were retained by the
intended sellers. Circumstances in
which held that no sale had taken
place, 101.

A, on the eve of bankruptcy, sold a
quantity of goods to B, who, al
though he knew that B was in
difficulties, was not aware that he
would be obliged to stop. A alleged
that the goods were sold for cash,
as otherwise it would have been a
fraud on his creditors, and B was
not to plead compensation of any

debt otherwise due. A became
bankrupt, was discharged, and
thereafter raised an action for pay-
ment of the goods. Held, by the
Sheriff-Substitute, and acquiesced
in, that A had failed to prove the
alleged contract, that B was not to
plead compensation, and action dis-
missed, 125.

Interdict was craved at the instance

a father against a poinding and
threatened sale of goods by a
creditor of his son, on the allega-
tion that the goods were the father's.
On a proof, held that the goods
were the son's, and interim interdict
recalled, 129.

Circumstances in which a husband
living separate from his wife, who
had a separate business sufficient to
support her, was nevertheless held
liable for an account incurred in
connection with her own business,
133.

A horse was sold, under a written
warranty, as sound on 8th October.
On the 31st he was examined and
declared unsound. This was inti-
mated, and the price demanded
back from the seller. On his
refusal, and in an action for repeti-
tion of the price, held (1) the plea
of mora repelled in the circum-
stances; and (2) the onus of proving
unsoundness having been laid on
the pursuer, circumstances in which
held that he had failed in his proof,
and defender assoilzied, 144.
An account was incurred for work
done, for which it was agreed to
assign real property situated in
England. A bill of sale was pre-
pared in the English form, in which
was inserted the amount of the
account due, and was sent to the
debtors for signature. The sum in
the deed was erased, and a greater
sum inserted, and the alterations
signed or initialed on the margin
by the debtors. On receiving back
the deed altered, the creditor inti-
mated by letter to the debtors that
he objected to the alterations, and
this was not denied. In an action
by the creditor for another account
for work performed, it was pleaded
by the debtor that the additional
account was compensated or paid
by the difference between the
original sum in the bill of sale and
the altered sum; and that the
creditor had homologated the deed
by having entered into possession
of the property. Held, that in this
action, the pleas of compensation
and homologation could not be
sustained, as the deed was vitiated
in essentialibus, and could only be
set up by a separate action. Decree
given for sum sued for, but process
sisted for three months, to give
opportunity to raise action, 151.
A trustee sold by private bargain to
the bankrupt's mother furniture
which had remained in the bank-
rupt's possession until the date of
sale, and which his mother allowed

to remain in his possession in loan.
Held, that a creditor who had
drawn a dividend under the seques-
tration was not entitled to attach
and sell the furniture, though he
had obtained decree for a debt con-
tracted subsequently to the seques-
tration by the bankrupt, 169.
See Superior and Vassal.
Superior and Vassal-

Held, in an action of declarator of
tinsel of a feu brought before the
Sheriff, where the Sheriff's jurisdic-
tion was prorogated in the feu
contract, that notwithstanding the
prorogation the action was incom-
petent, the feu duty being above
£25, 74.

A vassal was sequestrated, and after-
wards discharged. He was in
arrears when sequestrated. After
his re-investiture the superior sued
for arrears. Held, that these were
discharged under the terms of the
Bankruptcy Act, 89.

Seaman's Wages-

Previous payment of freight deter-
mines a seaman's lien thereon for his
wages, 82.
Succession-

A next of kin is entitled to the office
of executor in preference to the
father of a predeceasing daughter,
who takes one-half of the succession
under Dunlop's Act, 91.

Summons-

A document in these terms-"Please
pay to AB the sum of £230 sterling,
to account of the carpenter and
joiner work of the Baptist Chapel
presently in course of erection in
North Frederick Street, this sum
being payable, per Mr Gow's plans
and specifications, when the Chapel
roof is on and ready to receive
the slates," with a penny stamp
affixed, held not to be a bill, but
was admissible as evidence valeat
quantum, 118.
Solatium-

A master found liable only in solatium,
for the accidental death of one of
his workmen, 166.

and the legatees, but only one of
the legatees survived the liferentrix.
Held (1), that the legacies vested in
the children of B a morte testatoris;
(2), That the husband of a legatee,
who had died during the life of the
liferentrix, was entitled to be pre-
ferred, as in her right, to her share
of the fund in medio, under the
obligation to account to her next of
kin for the half share of the goods
in communion of which it formed a
part, 106.
See Interest.
Turnpike-

Claim of a turnpike against a railroad
for damage, repelled under the cir
cumstances, 97.

Title Deeds-

Goods were sold and delivered on the
orders, verbal and written, of a
partner, who acted as manager, to
the workmen of the company, the
prices of which were retained out of
the workmen's wages. The manag-
ing partner became bankrupt. The
seller brought an action against the
company and the individual part-
ners for payment. Held, (1) That
the Truck Act did not apply; (2)
That parole proof was competent
for the goods furnished on verbal
orders; (3) That proof scripto vel
juramento of the solvent partners
was alone competent, that the writ-
ten obligations were in rem versum
of the company, 149.

Unvouched Claims. See Bankruptcy.

Voucher. See Bankruptcy.
Voting. See Bankruptcy.
Vitiation. See Bill-Sale.

Warehouseman. See Carrier.
Witness. See Atheist.
Wakening-

A process which had fallen asleep
before 16 and 17 Vict., c. 80, came
into operation, and which had not
been moved in for more than six
months thereafter, stands dismissed
and cannot be wakened, 51.
Witnesses-

In an action of interim aliment at the
instance of a wife against her hus-
band on the ground of cruelty, held
that it was competent to examine
both parties to the action, and that
the 4th section of 16 Vict., cap. 20,
did not apply, 138.
Warranty. See Sale.