tion" that he discovered that James Laing's name had been cut off.

be recovered from him.

If the alleged vitiation or alteration is not ex facic apparent, the Sheriff thinks that it cannot be pleaded against a bona fide onerous holder of the bill. This is not a case of forgery, or signature obtained by force. It is admitted by the defender that the signature, John Ireland, is his signature, and that he subscribed the stamped paper which would carry £100 along with James Laing, to whom he gave the paper, with liberty to use it. James Laing might have written on the paper a bill for £100, so that the defender's signature imported a consent to a liability, joint and several, for £100, and in the most limited view for £50, being more than the sum now sought to There is only one witness in support of the defender's allegations-the defender himself; and while he has in his answers to the reclaiming petition commented on the pursuers not having examined William Laing, the observation applies also to his, the defender's proof, for he has not called William as a witness. In this state of the proof it appears doubtful whether the defender's own evidence is sufficient to prove that James Laing's signature was written under his, the defender's. But even if it should be held that there is sufficient proof of James' signature having been at one time written under the defender's, the question arises, who is to suffer loss in consequence of its having been cut off? The pursuer, who was in no way accessory to that act, or the defender, who entrusted his signature to James Laing on a stamp which would have covered a sum of £100, or, at all events, £50, for which the defender would have been liable without relief against James Laing. The Sheriff thinks that the defender must bear the loss arising from the act of the party to whom he trusted. The case, in this light, is similar to cases in which, owing to the careless way in which a bill has been written, room has

been left for an addition to the sum which was filled in at the date of the acceptor's signature, and in such cases it has been held, that where there is nothing ec facie to excite the suspicion of the holder, the person who filled in the bill so carelessly must pay the full amount. Third parties are not bound by the actual authority given, but are concerned only with the obligation presumable ex facie of the bill which the debtor has sanctioned by his signature, if there is nothing suspicious in the appearance of the document such as would attract the notice of a person exercising ordinary diligence, (Thomson on Bills, pp. 70 & 179; Graham, Jan. 17; 95 Moir, 1453.) In that case the words "four hundred and" were added before "fifty-eight," which latter sum only was written when the acceptors signed, but they accepting were held liable for the whole sum of £458, as there was nothing in the appearance of the bill to excite suspicion. A different judg ment was pronounced, where a somewhat similar addition was made, but the addition was apparent ex facie-(See also Young v. Grote, 4 King, 253.)

The Sheriff, therefore, holds that the pursuer ought not to suffer on account of the fraud of persons to whom the defender entrusted his signature on a blank stamp sufficient to carry £100. The fraud of any party connected with the bill as an obligant or otherwise can afford no defence against a claim for payment made by a bona fide holder for value; and, as already stated, there being nothing on the face of the bill sufficient to excite the suspicion of a person exercising ordinary diligence, and the pursuer is therefore entitled to recover the amount concluded for.

27 ru MAY, 1862.

SHERIFF COURT, GLASGOW, (MR SHERIFF BELL.)

JOHN HUTCHISON r. J. W. LITTLEJOHN. Interdict-Publication.-The holder of a share in a Trad ing Company proposed to sell out, and prepared an ad- | vertisement announcing the sale, which he sent to another member of the firm previous to publication. In an application for interdict against the publication of the

advertisement, on the ground that it was untrue, and calculated to damage the Company's business, interdict refused, the respondent being truly a member of the firm. THE petitioner presented a petition, in which he averred that he was the sole partner of the firm of George Hutchison & Co., and craving interdict against the defender printing or publishing in a certain newspaper, or in any other newspaper, or otherwise to publish an advertisement offering for sale, by public roup, within the Faculty Hall, George Place, Glasgow, all and whole the half share and interest in the business of the firm of George Hutchison & Co., and that the publication was calculated to damage or destroy the business of the firm. It was also averred that the advertisement contained statements which were untrue, and calculated to mislead and to damage the petitioner's credit and that of the firm. Interim interdict was granted. The defence wasPRELIMINARY.

(1.) The interdict sought is incompetent and unconstitutional. Every man is entitled to publish any thing whatever, whether written or verbal, unless such publication be an infringement of copyright, or some other right of property, or an illegal disturbance of some state of possession. No Court has any jurisdiction to interfere, by preventive measures, in any way with the liberty of the press or freedom of speech.

(2.) Interdict is, in the circumstances, an incompetent and inapplicable remedy, being appropriated entirely to regulate questions of possession or quasi-possession, or the use of property; and no interdict is competent against nuda verba, whether spoken or printed, but only against such facts and deeds alone as actually disturb some state of possession, or actually interfere with some use of property; and, separatim, no man has any possession or quasi-possession or property of character or credit, such as is capable of being regulated by the possessory judg ment of a Court.

(3.) The petition is irrelevant and ought to be dismissed, because it does not condescend on what particular illegal or injurious expressions are contained in the advertisement produced in process; nor state what, or in what way, special injury is apprehended from its publication; nor what the illegal or injurious matter sought to be prohibited is; and a Court is not entitled to grant an interdict against the whole advertisement without any limitation or specification of the special illegal or injurious matter prohibited-publication of an advertisement not being a wrong per se.

(4.) Even if interdict were competent against the particular advertisement produced in process, the petition ought not to be granted, in so far as it asks the Sheriff of Lanarkshire-(1) To interdict publication "in any newspaper" wherever published; and (2) To interdict publication, not merely of that particular advertisement, but "of any other advertisement of a like nature or substance, or any other similar advertisement or paragraph which may have an injurious or prejudicial effect on the good name or reputation of the petitioner, or the said firm,"-such an interdict being too vague and uncertain, incapable alike of precise obedience and of vindication.

(5.) The respondent ought not to be called on to discuss with the petitioner his (the respondent's) title or

authority to expose anything whatever for sale, so long as there is no de facto interference with his (the petitioner's) possession or use of his property-the respondent's title being jus tertii to the petitioner,

ON THE MERITS.

interest in it than he really possesses. The pursuers may, if they choose, warn intending purchasers against the terms of the defender's advertisement; but as it bears, in gremiæ, a reference to the deed of agreement, which constitutes the defender's title, inquirers will be able to judge of the accuracy of the description for themselves. Act. J. Y. STRANG. Alt. J. A. DIXON.

28TH MAY, 1802.

SMALL DEBT COURT, FORFAR. (MR SHERIFF GUTHRIE SMITH.)

The preliminary pleas were reserved till the record was closed. The record having been closed, and parties' procurators heard, the Sheriff-Substitute pronounced the the following Interlocutor, which has been acquiesced in:

Having heard parties' procurators, and reviewed the process, Finds that the defender, as assignee of William Scott, one of the parties to the deed of agreement, No. 6-1, proposes to advertise for sale, in terms of the draft advertisement, No. 6.2, or in similar terms, the share and interest in the business of George Hutcheson & Co., assigned to him by the said William Scott: Finds that it is res judicata in this Court, as instructed by the copy Interlocutor, No. 7-1, and is not now disputed by the pursuers, that Scott had an assignable interest in said business: Finds that such interest is also saleable, and the holder of it is entitled to go into the market with it: Finds that there is nothing in the terms of the proposed advertisement substantially inconsistent with the said deed of agreement, nor does said advertisement give an evidently false account of the interest held by the defender in the pursuers business: Finds that, in these circumstances, and irrespective of the question whether an interdict against the publication of any statement whatever is competent, the pursuers have instructed no sufficient ground for insisting in the interdict here craved: Therefore, and under reference to the annexed Note, sustains the defences, recalls the interim interdict formerly granted, and dismisses the action: Finds the pursuers liable in expenses, allows an account thereof to be given in, and remits the same to the auditor to tax and report, and decerns.

NOTE.-Mr Borthwick, in his work on Libel, p. 145, lays it down that, "by the law of Scotland, every man may speak, may write, may print, and may publish what he pleases," on condition of subjecting himself in the penal or civil consequences if he speak or publish treason, sedition, blasphemy, or slander. There is every reason to believe that this is also the law of England. See Wellsby's Blackstone, 1844, vol. iv., p. 151; Starkie on Libel, vol. i., p. 100; and the Lord Chancellor's observations in Fleming, Bell's app. p. 189. Injunction or interdict, therefore, against nuda verba, either written or published, is, in all ordinary cases, incompetent. If it were not so, the liberty of the press would be at an end. The Court, however, is not driven to rest its judgment, in the present case, on this wider and more comprehensive ground. Had the defender intended to print, as an advertisement, what was ex facie false and injurious or calumnious, the general question of his right to do so, as the citizen of a country where the broadest liberty of the press is established, would have arisen. But such questions can hardly be said to emerge, when, upon the merits, it appears that the defender only intends to exercise his common law right of advertising his property for sale-a right which he cannot be deprived of on no other ground than the pursuers' allegation that he is not about to describe the property accurately, and that he proposes to represent himself as having a greater

GORDON v. SCOTTISH NORTH-EASTERN RAILWAY

COMPANY.

the railway company at Kirriemuir to be forwarded to London, subject to a printed condition, signed by the sender, to the effect that the company would undertake no responsibility save on their own line and its branches, but, for the convenience of senders, they would invoice goods to stations on other lines at the sole risk of the owner. Held, that the contract was for the entire journey; that the condition as to risk was contrary to 17 and 18 Vict., c. 31, and void; and that therefore the company were liable for an unexplained delay occurring beyond . their own line.

TIE facts are fully stated in the following judgment:The pursuer has been in the practice for many years of send ing slaughtered pigs by railway from Kirriemuir on Wednesday, and they reach London in time for the market of the following Friday. This is an action to recover the sum of £7 as the loss and damage sustained by him, in respect that seven pigs, weighing 3 cwt. 3 qrs., despatched from Kirriemuir on the 11th September, in order to be in London on the 13th, were, through the fault of the defenders, or of those for whom they are responsible, not delivered in London till Monday the 16th, by which time they had become putrid.

It appeared that the goods were despatched from Kirriemuir by the 4-20 P.M. train, which reached Forfar at 4-36, and that the truck containing them was taken on to Perth by the through goods train from Aberdeen to London, passing Forfar at 5-20. Had they been a ton in weight the truck would have been sent on to London by the same train, but as to parcels of a less quantity than a ton, the practice of the company is to transfer them at Perth to a waggon going to London, Birmingham, Liverpool, or whatever may be their distinction. On the occasion in question, the porters being all away for the night, this transference could not be effected till early next morning, when the goods were sent on by the Edinburgh, Perth, and Dundee Railway. What became of them after that it is not necessary to inquire, but they did not reach London till Saturday night, and they were not delivered till Monday morning following. It was contended that there was negligence on the part of the defenders in not taking advan tage, at Forfar Station, of the forty minutes or so available for transferring the goods from the waggon in which they came from Kirriemuir to a waggon going through to London. It is conceivable that such a practice at every junction along a trunk line might occasion much delay in the passage of goods' trains, but the view I take of this case renders it unnecessary to pronounce any opinion on this point.

The main question arises on the terms of the contract. The goods were received by the defenders at Kirriemuir under what is called a "perishable goods' consignment note," signed by the sender, and which in substance was as follows:-

"The Scottish North-Eastern Railway do not undertake to carry, or to be responsible for, any goods of the above description, (fish, game, rabbits, etc.,) except to stations on their own line and its branches, and within these limits they only undertake to carry within a reasonable time.

"For the convenience of senders, however, the company invoice goods to stations on other lines at the sole risk of the

owner, but do not undertake to hand over such goods in time to be forwarded by any particular train.

"Be pleased to forward, subject to the above conditions, the undermentioned to London Station, for Campbell & Eustace, railway carriage to be paid by them.

66

(Signed)

"JOHN GORDON." When a carrier receives a parcel addressed to a place to which he usually does not go, it is obvious that he undertakes to do something more with it than merely convey it to his own terminus, otherwise it might lie there for ever. It was at first contended that his duty, beyond that of safe conveyance on his own line, was simply to forward it by the proper opportunity to its ultimate destination-in other words, that the carrier was empowered to make as many fresh contracts as he thought proper along the whole line of road over which the parcel required to travel, and which should be binding on the person who employed him. This was the view taken of the subject in the earlier Scotch cases, some of which are mentioned by Baron Hume; but these occurred long before the existence of railways, many of them forming continuous lines hundreds of miles in extent, and belonging to different companies, and the principle obviously cannot now be upheld. It is a mis take to say that in the contract of carriage there is conferred, by implication, on the carrier any such authority as is as sumed. It may be conferred on express terms, but not otherwise. Accordingly, in a great many cases, beginning with Muscamp v. The Lancaster and Preston Junction Railway Co., 28th May, 1841, Mees. and Wels. 421, it has been decided in England (where questions of this sort have chiefly occurred) that a carrier who receives goods addressed to a place to which his own line does not extend, is responsible for their safe conveyance during the whole of the journey, and that his obligation is not affected by the fact that his line goes only part of the way. The company whose line goes beyond his become his agents for fulfilling his contract. It follows, as a corollary from this principle, that in the event of any loss being suffered on any part of the journey, action lies, not against the latter company, but against the first company, with whom the contract was made. So it was determined in Mytton v. Midland Railway Company, 4 H. and N., 615. In that case it appeared that the plaintiff took out a ticket at the Newport Station of the South Wales Railway from Newport to Birmingham, for which he paid the entire fare. The South Wales Railway extends from Newport within twelve miles of Gloucester, which latter distance is traversed by the Great Western, and the Midland Line have a railway from Gloucester to Birmingham. By arrangement between these Companies, tickets are issued at one fare for the whole distance. Plaintiff having lost his portmanteau between Gloucester and Birmingham, brought his action against the Midland Railway Company; but it was held that the contract being an entire contract with the South Wales Railway Company, the Midland Railway Company were not liable. The more recent case of Coxon v. Great Western Railway, 11th February, 1860, 5 H. and N., 274, bore a still closer resemblance to the one under consideration, and still more forcibly shows the effect of the rule mentioned. Cattle were delivered to the Shrewsbury and Hereford Railway, to be carried to Birmingham, subject to this condition--" For the convenience of the owner, the Company will receive the charges payable to other Companies for the conveyance of such cattle by other railways, but the Company will not be subject to liability for any loss, delay, default, or damage arising on such railway." Plaintiff having sued the second Company for a loss occurring on their line, it was held that there was one contract for the entire journey. "They do not say (said the Court) that they will not carry on another railway, but that they will not be liable for damage on such railway." Therefore, it was decided that, whatever were the plaintiff's rights, his action lay solely against the first Company with whom he made the contract. The decision in the House of Lords in the case of Collins v. The Bristol and Exeter Railway (7 H. of L. cases, p. 194), to which I shall afterwards have to refer for another purpose, is to the same effect.

Reading, then, the pursuer's contract with the defenders in the light of these cases, it appears to me that it must be held to be an undertaking to carry the goods all the way from Kirriemuir to London. I do not say that a railway company is bound to carry beyond the limits of its own line, or that it may not make such a contract as will effectually confine its responsibility to what happens on its own railway. It is per

There

fectly lawful for a carrier to make such a stipulation, and it will receive effect, provided the terms employed are sufficiently distinct and unambiguous as to make it clear, beyond all con troversy, that it was so understood by both sides at the time the goods were sent away. But in this case the defenders have not succeeded in doing so, and the pursuer swears he did not so understand it. What they say is in effect this"In the general case we do not undertake to carry, or to be responsible for any goods save on our own line, but, in the present case, and for your convenience, we undertake to forward them to London, at your sole risk." The word "forward" here has the same meaning as send, or carry, or convey. Not only, therefore, has the action been properly brought against the defenders, but, on the cases mentioned, it could not have been competently brought against any other party. But, then, the defenders say, if the goods were to be taken by us all the way, they were to be so taken at the pursuer's risk. Prior to the Act 17 and 18 Vict., c. 31, carriers were at liberty to make special contracts with their employers, restricting their common law responsibility to any extent they thought proper. Parliament, however, considering that railway com panies have practically a monopoly of the carrying trade of the country, interfered to prevent an abuse of this power, by declaring that such special contracts should not be binding, unless reasonable; and the reasonableness of their terms is a question for the Judge or Court trying the cause. have been a number of cases decided as to what are, and what are not, reasonable conditions. It has been held that a condition which seeks to protect a company against liability for damage from any cause whatsoever is invalid-at least so far as it applies to damage, or loss arising from the gross neglect of the company, or their servants, or by reason of the defect or insufficiency of the truck or carriage provided, unless an option is afforded of sending such goods free from the con. dition on payment of a reasonable hire. M'Manus v. The Liverpool and Lancaster Railway Company (30 "Law Times," Pp. 321, and 7 W.R., 547). Whether a condition in a through contract, exempting from responsibility as in this case, save on the line of the contracting company, is sufficient for their protection, has not been expressly determined; but that it is insufficient is, I think, fairly deducible from what was said in the House of Lords in the case of The Bristol and Exeter Railway Company v. Collins, which I have already quoted. In that case the contract was subject to a number of conditions, to the effect that the company would not be responsible for loss by fire-that goods addressed to consignees beyond the limits of the company's local regulations would be forwarded by carrier-that any money received as payments for the conveyance of goods by other carriers beyond the limits of the railway would be received only for the convenience of consigners, for the purpose of being paid to such other carriers; and "the company would not be responsible for any loss, damage, or detention that might happen to goods so sent by them, if such loss, damage, or detention occurred beyond their said limits." The contract was made with the Great Western Railway for the conveyance of the goods from Bath to Torquay; and the goods having been destroyed by fire at Bristol, an action was brought against the Bristol and Exeter. The contract being an entire contract made with the Great Western, the plaintiff was held to have no recourse against the Bristol and Exeter; but it rather appears from the judgment that if the action had been brought against the former instead of the latter, the conditions, excepting the one as to fire, would not have protected them from liability. Indeed, Baron Watson says so expressly: "The true mode (he says) of ascertaining the meaning and effect of the note and condition is by considering the case as if the action had been brought against the Great Western Railway Company for a loss or injury to the goods, other than by fire, whilst on the journey between Bristol and Exeter. In that case, would the Great Western Railway have been liable? I think it would." That is exactly the case which has occurred here. The defen ders, having undertaken the whole distance, were unreasonable in stipulating that beyond Perth it should be done at the pursuer's risk-in other words, that he should have recourse against them for the first forty miles or so of the journey, and not as to the remaining 380. The condition is therefore void. The defenders are liable for the unreasonable and unexplained detention which occurred somewhere south of Perth; and the judg ment of the Court is in favour of the pursuer, with expenses. Act. CLARKE, Writer, Fortar. Alt. GRANT,

4TH JUNE, 1862.

SHERIFF COURT, GLASGOW.

(MB SHERIFF SMITH.)

tracted by him prior to the date of the sequestration, except for the composition; that, in the present case, the obligation to pay the feu duty was contracted prior to the sequestration, although the terms of payment of the sums now demanded in virtue of that obligation have emerged subsequent thereto; and that the Bankrupt Act has made provision for such a case by directing future payments under prior obligations to be

Superior and Vassal

RUSSELL.

Sequestration-Discharge. A vassal became bankrupt and was sequestrated, he being in arrears of his feu duty at the time. The superior raised an action for the arrears after the vassal had been discharged and reinvested in his estates. Held, that the personal obligation in the feu contract to pay the feu duty had been discharged under the terms of the Bankrupt Act, and action dismissed.

THE pursuers sued the defender for £20 13s 5d, being the half-year's feu duty and proportion of public and parish burdens due by him at the term of Whitsunday last to the pursuers, for ground situated at Phoenix Park, Glasgow, after deduction of Income Tax thereon; as also the sum of £20 15s 2d, being the half-year's feu duty and proportion of public and parish burdens due by him at Martinmas last, after deduction of Income Tax.

The defence was a denial of resting owing, and an averment that the defender was sequestrated under the Bankruptcy (Scotland) Act, 1856, and Acts explaining or amending the same, on 17th April, 1861, and that he had been discharged of all debts and obligations contracted by him, or for which he was liable at said date, on a composition of 6d per pound, conform to deliverance by the Sheriff of Lanarkshire in said sequestration, dated 14th September, 1861.

The record was then closed, and parties' procurators having been heard, the Sheriff-Substitute pronounced the following Interlocutor:

Having considered the closed record and whole process, and having heard parties' procurators thereon, Finds that the defender does not deny that he is the pursuers' vassal on the ground for which feu duty is claimed, nor does he deny the amount of said feu duty as stated in the summons: Finds the defender admits that he is now re-invested in his estates: Finds, therefore, that the defence stated is no answer to the pursuers' claim: Repels the defences, and decerns against the defender in terms of the conclusions of the summons: Finds him also liable in expenses, allows an account thereof to be given in, and remits the same to the auditor of Court to tax and report, and decerns.

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

Having heard parties' procurators under the pursuers' appeal upon the Interlocutor appealed against, closed record, and whole process, Finds it now admitted that the copy of the defender's title in the pursuers' chartulary is correct: Finds, on the merits, that it is admitted that the defender became the pursuers' vassal in the feu libelled on, the feu duty payable for which, by the feu contract, is £20 13s 5d half-yearly, and that the feu duty claimed under the present action is that due at Whitsunday and Martinmas, 1861: Finds that it is pleaded in defence that the defender was sequestrated under the Bankrupt Act on 16th April, 1861, and that he got his discharge under that sequestration on payment of a composition of sixpence in the pound, on 14th September, 1861: Finds it pleaded in point of law by the defender, in these circumstances, that the discharge obtained by him under the sequestration cut off all claims against him at the instance of any creditor, upon any ground whatever, for debts due or obligations con

the valuation on the sequestrated estate: Finds it pleaded for the pursuer in reply, in support of the action, that these provisions in the Bankrupt Act apply only to personal claims and to moveable debts; that heritable rights and real securities defender has been re-invested in the estate on payment of the over land are withdrawn from its operation; and that, as the composition, and stands in the public records as the pursuers' vassal in the feu libelled, he is liable for the feu duties payable under the feu contract subsequent to his sequestration: Finds it averred, and not denied, that the trustee on the defender's sequestrated estate declined to take up or interfere with the heritable property in question, for which the feu duty is now claimed, as it was burdened beyond its value: Finds, in point of law, where a superior grants a feu right to a vassal, he is clothed with a double security for his right to the feu duty or the vassal and his heir in the feu, for the amount of the feu casualties payable from the land-one, a personal claim against duty or other prestations under the feu contract; and the second against the land itself, to be made effectual by a Declarator of Irritancy, in the event of the vassal allowing two years' feu duty to run into a third unpaid: Finds that the personal obligation on the defender for feu duties, though payable

at a term subsequent to the sequestration, has been cut off by the express words of the Bankrupt Act, but that the real security, arising from the right of the pursuers vindicating the land, remains untouched: Finds that the present action is rested on the personal obligation undertaken by the defender, which is struck at by the discharge obtained by him under the Bankrupt Act, and not upon the real right vested in the pursuers which is untouched by that Act: Finds that it was competent to the pursuer to have claimed on the defender's sequestrated estate for the ascertained value of the feu duties, and drawn a dividend or composition effeiring thereto; and that the fact of her not having done so, will not re-invest her with a right to the full annual feu duties, in the face of the discharge obtained by the defender under the Bankrupt Act, which applies expressly to all debts due, or obligations contracted, prior to the date of the first deliverance in the sequestration, though not prestable till after it: Finds that the whole estate of the bankrupt, carried by the sequestration, including the feu in question, was, by the force of the statute, vested in the trustee, but that the trustee, having declined to take up the feu or interfere with the property, and the defender having in no way interfered with it since his discharge, the defender, in virtue of his discharge, became re-invested in the estate as it stood in the person of the trustee; and that being so, he is protected from the personal claim for the feu duty by the force of the Bankrupt Act, and that the pursuer can only now vindicate his right as superior to the ground by a Declarator of Irritancy, ob non solutum canonem: Therefore, alters the Interlocutor complained of, sustains the defences, and assoilzies the defender from the action, reserving to the pursuer to proceed as accords of law for vindication of her right as superior to the property itself in the proper Court; but on the question of expenses, in respect of the novelty and difficulty of the question for the first time been brought in collision with the rights of at issue, where the rights of a superior by the feudal law have of there being no express decision of any superior Court on a discharged bankrupt as declared by the Bankrupt Act, and the point, finds no expenses due, and decerns. Act. A. L. GRAHAM.

Alt. P. S. HONEYMAN.

G*

5TH JUNE, 1862.

SHERIFF COURT, GLASGOW. (MR SHERIFF BELL.)

BUTLER & SMITH V. MOLYNEUX.

Process Evidence - Productions.

- Documents in a pursuer's possession prior to raising an action, but not produced before the closing of the record (see Borthwick, 6th Dec., 1861), refused to be received afterwards. Process-Evidence-Parole proof-Oath of reference.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 reference to oath implied a judicial contract, 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. SEE Supra, page 23.

The pursuers now moved that they should be allowed to lodge in process four letters addressed by the defender to the pursuers. This motion was opposed by the defender on the ground that these letters had all along been in the pursuers' possession.

Parties' procurators having been heard for and against the motion, the Sheriff-Substitute pronounced the following Interlocutor:

Having heard parties' procurators on a motion for the pursuers that they be allowed to put into process four letters received by them from the defender previous to the institution of this action, and which have ever since been in their custody, for reasons stated in the annexed Note, refuses the

said motion.

NOTE.-The letters which the pursuers wish now to be allowed to put into process are with the view of proving scripto the resting owing of the debt sued for. The pursuers were certiorated by the minute of defence both that the resting owing was denied, and that the defender pleaded prescription. After this minute had been lodged, both parties were allowed, of mutual consent, by the Interlocutor of 29th October last, six days to make productions, and the pursuers did make certain productions accordingly with a view to establish their claim, but withheld the letters now in question. By the 51st sec. of the Act of Sederunt of 11th June, 1839, it is made imperative on parties to produce with their pleadings, before the record is closed, "all writings in their custody or within their power not already produced on which they mean to found." And by the 56th sec. it is enacted that when the record has been closed "no new productions within the power of the party shall be allowed or received under the exception of res noviter veniens ad notitiam." It has been the invariable practice in this Court to give effect to these enactments, and to refuse to receive, unless of consent after the record has been closed, productions directly bearing on the grounds of action which have all along been in said parties' power. But it was argued for the pursuers that this practice should now be altered in virtue of the recent decision of the Court of Session in the case of Borthwick, 6th December, 1861. The Sheriff-Substitute has carefully considered that case, and finds nothing in it subversive of, or contrary to, the foresaid established practice. No doubt the Court there allowed certain documents recovered in modum probationis in the course of a proof on commission to be received into process. But the ground on which this was allowed by a majority of the Judges was, as the rubric bears, that the documents had not been, previous to the closing of the record, in the power of the party in the sense of the judicature act and relative Act of Sederunt. It is true that several of the Judges were of opinion that these acts, which contain enactments similar to the Sheriff Court Act of Sederunt, did not mean to exclude

the production of documents, though in a party's possession, which did not bear upon the foundation or grounds of the original claim or defences, but only on incidental matters of fact as to which disputes had arisen, and a proof been allowed after the record was closed. There was no express decision, however, given upon this point, and the Lord Justice-Clerk, in particular, emphatically said, "It is utterly impossible for me to arrive at the conclusion that any document in the possession or power of a party, and which is manifestly important and necessary to support his averments on record, can be produced after the record has been closed." Whatever latitude, therefore, may be allowed to parties in the production of documents in modum probationis on incidental questions arising unexpectedly in the course of a litigation, it is plain that Borthwick's case makes no infringement on the rule that documents material to the cause, as originally laid, cannot be received from a party after the record has been closed if they were within his power ab initio litis.

Thereafter the pursuers further moved that they should be allowed to examine the defender as a witness in causa, to which motion the defender objected, and, after a hearing, the Sheriff-Substitute pronounced the following

Interlocutor:-

Having considered the motion made by the pursuers to be allowed to examine the defender as a witness in causa, with the defender's objections to said motion, Finds that, by the Sheriff Depute's Interlocutor of 3d February last, the plea of a proof of the resting owing of the account libelled only by the prescription was sustained, and the pursuers were restricted to writ or oath of the defender: Finds that all parole proof was thus excluded, and the defender is not bound to undergo any examination merely as a witness or otherwise than under a reference to his oath, which implies a contract that his deposition shall be final as to the facts of the case: Finds that it is 1839, that "in all cases where the oath of the party is reprovided by the 84th sec. of the Act of Sederunt, 11th July, quired, the party by whom the reference or deference is made must either subscribe, along with his procurator, the paper in which the requisition is made, or sign a separate writing to that effect, to be produced along with the paper, or judicially adhere to the reference in presence of the Sheriff:" Finds that the pursuers, not having complied with these provisions, are not entitled to examine the defender in the manner proposed, and refuses the said motion.

Against both these Interlocutors the pursuer appealed; and, after a hearing, the Sheriff (Sir Archibald Alison) pronounced the following judgment:—

Having heard parties' procurators under the appeal for the pursuers upon the Interlocutor of 17th April last, finding that the pursuers are not entitled to examine the defender as a witness, in respect they had not lodged a minute of reference referring the causes to his oath: Finds that, under the Act 1579, the pursuer of an action for payment of a prescribed account may still prove his case after the three years have elapsed, but that he can only do so by "the writ or oath of the debtor:" Finds that before the Evidence Act was passed, it was not competent to examine a party to a cause as a witness in causa at all, and therefore it was necessary, by the Act of Sederunt, 11th July, 1839, that where the oath of a party was required, the party referring should lodge a minute of reference, signed by him, referring the matter to his op ponent's oath: Finds that it is now competent, under the Evidence Act, to examine a defender on oath as a witness in causa at the pursuer's instance, as allowed by the Act 1579: Finds that it is thus competent, in such a case as the present, for the pursuers to examine the defender as a witness in causa, without lodging a minute of reference of the whole cause to his oath, although they must prove their case by the defender's writ or oath, seeing, as has been already decided, no other proof is competent: Finds that it is restricted to the final and regular review of the decision, pronounced in the cause by the Supreme Court, under an advocation thereof, that the pursuers should be allowed to prove their case by the defender's writ or oath as a witness in causa, without being obliged to lodge a minute of reference, seeing if a reference of the cause is only made under a minute, and sustained by the