Court, it becomes a judicial contract to abide by what is sworn to in the oath, and it may be doubtful how far the Supreme Court could review the previous Interlocutors in the cause, or whether parole proof could thereafter be allowed, even although the higher Court should deem it competent, and, at all events, the pursuers have a right to avoid such doubtful questions: Therefore alters the Interlocutor of 17th April last, complained of, and finds it competent for the pursuers to prove the resting owing of the account by the writ or oath of the defender as a witness, but by that mode and by that witness only without lodging a minute of reference of the cause to his oath, and remits to the Sheriff-Substitute to fix a diet for taking such proof accordingly, and do thereafter as to him shall seem just; and upon the appeal for the pursuers against the Interlocutor of 10th April last, refusing the pursuers' motion to be allowed still to lodge in process the four letters addressed to them by the defender, prior to the institution of the action, and which have been all along in the pursuers' possession, adheres to the said Interlocutor for the reasons stated by the Sheriff Substitute, as also those in the following Note, and dismisses the appeal. NOTE.-The present decision relates only to the mode of taking the defender's oath. The pursuers must equally, in the mode now allowed by the Sheriff, as under a regular minute of reference, prove their entire case in the absence of writs by the defender's oath, that is the constitution as well as the resting owing of the account. On the other point of the pursuers' motion still to be allowed to produce the letters, the Sheriff is of the opinion that under the decision in the case of Borthwick, 6th December, 1861, production of documents within the power of a pursuer are competent though not produced before the record is closed, if they go to elide a defence, not to support the action; but no documents can be more justly held to be in support of an action than letters, which, being the defender's writ, and relating to the subject matter of the action, are founded on as implying an admission of the debt against which prescription was pleaded. Act. W. P. ALLARDICE. Alt. ALEX. WATT. 5TH JUNE, 1862. COMMISSARIAT OF FORFARSHIRE. (MR J. GUTHRIE SMITH, Commissary-Depute.) Mrs KIRKALDY, or GRANT, and WILLIAM KIRKALDY, Competing. Succession-Next-of-Kin-Executor-Dunlop's Act18th Vict., c. 23.—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. In this case the administration of the estate of a Mrs Middleton, who died intestate, was claimed by her sister, Mrs Kirkaldy or Grant, and also by Mr William Kirkaldy. Mr Kirkaldy contended that the proper person to be appointed executor was the party having the beneficial interest, and, as he took one-half of the estate under 18th Vict., c. 23, he ought to be preferred to his daughter, the other claimant. The Commissary-Depute issued the following Interlocutor, to which, on appeal, the Commissary, Mr Maitland Heriot, adhered:— The Commissary-Depute, having heard parties' procurators, conjoins the two petitions: Finds that the petitioner, Mrs Catherine Kirkaldy or Grant, is legally entitled to the office of executor, to the exclusion of the petitioner, William Kirkaldy: Therefore decerns her executrix dative, qua next-of-kin, to the deceased Mrs Janet Kirkaldy or Middleton, and dismisses the petition of the said William Kirkaldy: Finds both parties entitled to their expenses out of the estate, subject to taxation, and decerns. NOTE. This competition raises, for the first time, the important question whether a father, who comes in for one-half of the estate of a predeceasing son or daughter, in preference to brothers and sisters under 18th Vict., c. 23, sec. 3, has right to the office of executor exclusive of, or at all events along with, the next-of-kin. Mr Kirkaldy reads the statute thus:-"Where any person dying intestate shall predecease his father, without having lawful issue, his father shall have right to one-half of his moveable estate, (and the administration of the whole of it,) in preference to any brothers, or sisters, or their descendants." This is evidently too violent a rendering of the Act of Parliament. The next-of-kin have been entitled to the office of executor from the earliest times. In the Regiam Majestatem, 2, c. 38, it is said, "Gif he quha makes the testament nominates na man, the nearest of his kin in consanguinitie may offer themselves executors." The instructions to the Commissaries, ANNO 1666, are, “That if there be no nomination of the testament made by the defunct, the Commissaries must confirm the nearest of kin;" and, finally, the Act in question, after establishing the right of representation in moveables in sec. 3, declares "That the surviving next-of-kin of the intestate claiming the office of executor shall have exclusive right thereto in preference to the children or other descendants of any predeceasing next-ofkin; but that such children or descendants shall be entitled to confirmation when no next-of-kin shall compete for the office." Therefore, so far from giving any countenance to the notion that it was meant to deprive the next-of-kin of the right of administration, competent to them under the old law, the statute expressly confirms it. But then it was said that the right of the next-of-kin was not a right of blood, but a right arising from their having in the general case the beneficial interest in the estate to be administered, and cessante ratione cessat lex-a principle given full effect to in 1755, when the Court, in Lord Crawford's case (M. 3818), preferred to the office of executor a general disponee, although not named executor by the defunct. Mr Erskine says that this case was so decided "because those to whom the deceased has given the only substantial interest in the succession ought also to have the right of administering it," (Inst. 3, 9, 32;) that is to say, the fact referred to may be accounted as a nomination of executors by implication. The case, therefore, only proves that the right of the next-of-kin can never be defeated, save by a testamentary writing of the defunct, containing either an appointment of executors expressly (as in Peacock v. Glasgow, 2 S., 639), or by the implication arising from their being constituted universal disponees, universal legatories, or residuary legatees of the deceased. In the presence of this fact, and the well-established principle that an Act of Parliament does not alter the common law further than its words expressly declare, it is in vain to contend that the bare admission of a father to one-half of the estate, left by a predeceasing son, repeats all the old law relative to administration by the next-ofkin. If the father is entitled to the office under s. 3, so also is the mother under s. 4. But the mother is not one of the next-of-kin at all; consequently, under s. 1, which declares "that the children or descendants of the predeceasing next-ofkin shall be entitled to confirmation when no next-of-kin shall compete for the office," she would be excluded by a niece or nephew of the deceased. Now as the right of a niece or nephew is secondary to that of a brother or sister, multo and if the mother, so also the father; for as to both the magis, is a brother or sister entitled to exclude the mother, phraseology of sec, 3 and sec. 4 is exactly the same? It was also argued that as the Act makes no reference to the widow's half, a case might occur in which the next-of-kin would take nothing; for if the intestate left a widow, and predeceased his father, the two would divide the succession between them to the exclusion of the brothers and sisters, or their descendants. It rather appears, however, that this is not a right interpretation of the statute. The relict's share is not a right of succes. sion at all, but vests in her as the surviving member of the partnership in the communio bonorum constituted by the marriage. On this principle the jus relictae does not need confirmation. The Act seems only to deal with that part of the succession of the defunct requiring to be diverted into such 'channels as are appointed for it ex lege, that is to say, succession of property so-called, and exclusive of both the jus relictae and the children's legitim. The moveable estate spoken of in the Act means the whole free moveable estate on which the deceased might have tested (s. 9). This, however is of MARY PURDIE AND ALEXANDER PURDIE, her Administrator-in-Law, v. WILLIAM KELLY. Damages-Personal Injuries-7th and 8th Vict., cap. 15; 19th and 20th Vict., cap. 58.-Circumstances in which damages awarded to a mill-worker for injuries caused by the machinery being unboxed. THE pursuer, a minor, with consent of her father as her administrator-in-law, sued the defender, a mill-owner at Barrhead, for £300 sterling, as damages and solatium sustained by the pursuer through the fault, negligence, and carelessness of the defender, or others for whom he was responsible, in so far as being in the defender's employment, working at a self-acting spinning machine in motion, her right hand was caught by the wheels or gearing, and her fingers so crushed that they had to be amputated, and her hand much bruised and injured, which injuries had been occasioned in consequence of the gearing of the headstock of the acting mule not having a cover or guard, and being improperly constructed and unfenced, and the passage between the machine and others being narrow, and insufficient, and dangerous, in violation of the Factory Acts. The record was made up by condescendence and defences. The defence was that the accident was caused by the pursuer's own fault or negligence, in having recklessly or carelessly thrust her hand into the machinery, not while she was at work, but when amusing herself. The record was then closed, and a proof before answer was allowed to both parties. Proof having been led, and parties' procurators heard, the Sheriff Substitute pronounced the following Interlocutor: Having considered the closed record, proof, productions, and whole process, and heard parties' procurators thereon: Finds that on and for sometime prior to the 21st January, 1860, the pursuer, Mary Purdie, then a child of thirteen years of age, was employed by the defender as rove-piecer at a selfacting spinning machine, within his cotton mill at Fereneze, Barrhead: Finds that in accordance with the usual practice in the said cotton mill, the pursuer had occasion, in pursuing her work as a rove-piecer, to go by a narrow passage, known as "the centre back pass," past the back of the head stock of the said spinning machine, and certain wheels at the back of said head stock, in order to put in the rove: Finds that two of said wheels are toothed, and revolve upon each other with an inward motion: Finds that on the said 21st January, 1860, when the occurrence libelled is said to have taken place, the said wheels were unfenced, and without shield or guard of any kind, and that in consequence they were dangerous to the said pursuer, as the rove-piecer employed at the said machine: Finds that upon that day the pursuer was in the said centre back pass, in the usual course of her employment, and that when she was so there, her right hand was caught in the said wheels, and the first three fingers thereof so crushed and mangled thereby down to the knucle joints that they had to be ampatated, her little finger being from the said cause partially injured, and part of the bone of the top joint thereof taken off: Finds that the same day, or very soon afterwards, the said wheels and all similar wheels in the said cotton mill were fenced or "boxed in" and that for some time prior to the above accident, the guards or boxes for these wheels had been lying in the mill unused: Finds, that in not having fenced or boxed in the said two wheels, the defender failed in exercising due care and caution for the protection of the said pursuer as a rove-piecer in his said mill; and failed to comply with the requirements of the Factory Act, 7 and 8 Vic. chap. 15, sec. 21, which requires such wheels to be securely fenced: Finds, that in consequence of the defender's said failure to fence or box in said wheels, the pursuer has suffered great injury and damage. Finds, in point of law, that the defender's said failure, as averred on record, and established in evidence, is relevant, and sufficient to infer culpable negligence, or fault on his part, and, pursuer, Mary Purdie, and to her father, Alexander Purdie, therefore, finds that the defender is liable in reparation to the as her administrator-in-law, and joint pursuer of this action; assesses the damages at £40 sterling, and decerns therefor against the defender: Finds the defender liable in expenses; allows an account to be given in, and remits the same when lodged to the auditor of Court to tax and report. NOTE.-The long period which has intervened between the date of the occurrence, in respect of which the pursuers claim damages, and the raising of the present action, is certainly lost, owing to the disappearance of valuable witnesses, but the most unfortunate; for not only has important testimony been evidence adduced is less pointed and satisfactory than could have been desired. There are circumstances of real evidence female pursuer was a child of 13 years of age at the period in in the case, however, which so far diminish its obscurity. The question, and was employed as rove-piecer at a self-acting spinning machine in the defender's work. The "centre back pass" which she wrought and the similar machine which stood next or way between the back of the head stock of the machine at it, and the frame of which was then standing, though the machine itself was not as yet set agoing, was very narrow, not exceeding at the back of the head stock of her machine 15 had little room; and in so passing, or in standing at the back inches in breadth; consequently, the rove-piecer in passing, of the head stock, she was in close proximity to two toothed wheels revolving on each other, these being parts of the machine driven by steam-power at which the pursuer wrought, and being the wheels by which confessedly she lost her fingers. For these wheels, shields or boxed-in covers were provided, and as the wheels themselves were undoubtedly capable of effecting serious mischief, they were exactly such as the Factory Act of 7 and 8 Vic., cap. 15, sec 21, requires to be so guarded, as being parts of the machinery "near which children or young persons were liable to pass or be employed." From the afternoon of the day on which the child was hurt boxed in; but unfortunately, though the covers or boxes were these and all similar wheels in the defender's works have been lying under a window-sole in the factory, ready for use, at the time, they were not put on until she had been injured. The defender was desirous to make it appear that the machine in question had only been started for a few days, and that the delay in putting on the covers arose simply from a reasonable wish to see that the wheels wrought well before they were finally covered in, but not only was there little force in this, as it appears the covers lift off and on at pleasure, but it is proved by the pay-sheet put in by the cashier of the defender that the machine had been going at least thirty-two days, i.e. nearly five weeks at the date of the accident, the pursuer having earned wages in rove-piecing at self-actors on that number of days prior to the accident, and never having been so employed at any machine except that in question; nor is it said that any operations were going on during or after that period which the boxing-in of the wheels would have interfered with. The defender next maintains two very inconsistent propositions— 1st, that the wheels were not dangerous, and that the "centre back pass" was perfectly safe; and 2d, that the rove-piecers were strictly prohibited from going through the centre back pass. Viewing the evidence as a whole, the Sheriff-Substitute This Interlocutor was appealed, and having heard parties' procurators, the Sheriff (Mr Patrick Fraser) pronounced the following judgment: The Sheriff having heard parties' procurators on the defender's appeal, and considered the appeal for the pursuer, made avizandum, and thereafter considered the proof, productions, and whole process, dismisses the appeal, adheres to the Interlocutor appealed against, Finds no additional expenses due to or by either party, and decerns. is satisfied that the wheels were dangerous, especially in the piecer's hands though she had not been touching the dangercase of a child worker, and unless such had been the case he ous wheels in question; and although she had been playing would ask why covers had been provided for all such wheels herself some little time before the accident, this does not conin the self-acting machines. That the juvenile rove-piecers tradict the evidence of Alexander Purdie, that she was afterwould be near them, and would be likely sometimes to pass wards roving for him, and called by Wason to put in roves them is clear enough, and even if a general order was issued for him, near the head stocks, whereby she came in contact against passing the head stocks in which they were placed, in with the wheels. On the whole, it is thought that the purdealing with children, the wheels should have been guarded. suer was in the flat, in attendance on her work, and that But what is the amount of the evidence as to the prohibitions there is nothing to show she was doing anything else except against the rove-piecers passing these head stocks? It is said her work when she was caught and hurt. It is not pretended to have proceeded from Mr M Murtrie, the spinning master in that there was anything implying discharge of the pursuer's the defender's work, and he says that he warned all the rove- claim of damages, if she was ever entitled to demand them. piecers, and the female pursuer amongst them, and that he But the medical attendance afforded her, and the consideration trusted to the "guider" or "minder of each machine to shown by the defender in giving her employment for a long enforce his orders. But the prohibition, if ever announced, time subsequent to the accident, must form grounds for abawas a perfect mockery; the inveterate practice of the mill was ting the damages allowed; and as the girl's appearance and for the rove-piecer, in roving, to pass the head stock. Mr health indicate that she may still earn a livelihood, though by M'Murtrie admits he saw them do it without checking them, more limited means, and under less favourable conditions than and he cannot specify the name of any rove-piecer who obeyed before the accident, the Sheriff-Substitute thinks £40 a reasonhis orders, by taking a different course, instead of passing the able amount to decern for. head stocks. (Proof, pp. 16, 17, 18.) It may be added that all the different practical operatives from other works, adduced as witnesses, hinc inde, assume that the rove piecer would have occasion to pass the head stock. If this is 80, there can be little room for doubt that the wheels should have been covered. It is said, however, that the female pursuer was not engaged in rove-piecing when she was hurt, but that while amusing herself she recklessly put her hand into the wheels which crushed it. The pursuer says that she had put in rove for her brother, Alexander Purdie, and for Mrs Caldwell, the two piecers at her machine, and that when doing so, Alexander Wason, the guider or minder, called to her suddenly to put in rove for him, he taking charge of the upper portion of both sides of the mules next the head stock, and that in her haste to do so she ran up to the centre back pass, and in passing the head stock there her hand was caught in the wheels and hurt. Alexander Purdie, her brother, corroborates these statements in all their essentials, deponing that he heard Wason give her the order; that she ran to fulfil it, and that almost immediately thereafter he heard her cry of pain, as she was caught in the wheels. Most unfortunately Wason, who has since enlisted as a soldier, has left the country, and his evidence cannot be got. Mrs Caldwell, the other piecer at the machine, is relied on by the defender to contradict this positive testimony. She says that the child did not fill up rove for her that morning, and that she had no work to do. But, on being pressed, she admitted that she did not know whether she might not have to put on rove for her brother Alexander. She adds that she was standing near Wason, and that she would have heard him order the pursuer to put on rove if he had done so, while she depones she heard no such order given. But this, after all, is negative evidence against positive. And not only is such evidence of little weight, especially after the lapse of nearly two years from the occurrence in question, and in relation to a matter so little remarkable in itself as readily to escape observation. But it may be observed further, that persons in Mrs Caldwell's position are generally singularly unobservant, and their perceptions of things not immediately connected with themselves blunt and dull to a degree almost incredible to better educated people. This is illustrated by what she says about rove-piecers passing the head stocks in the mill; for she asserts that when the whole machines in the flat were in motion, she never saw the rove-piecers passing the head stocks even after they were guarded, and that it was the practice for them to go up the "fore pass" when roving. Now, this is inconsistent with the whole strain of the evidence, and even with the evidence of M'Murtrie, the spinning master, whose statements are quite inconsistent with it. The same remarks apply to the evidence of Mary Muirhead, (proof, page 33,) who is equally far wrong as to practice. Indeed, one can scarcely get rid of a suspicion that their testimony is characterised by a certain partisanship on behalf of their master, the defender. These remarks, if well founded, would seem to reduce to little importance the story told by Mrs Caldwell and Mary Muirhead that the pursuer was playing about shortly before the accident, and came running up to them with her hands black with grease, and that the grease must have been off the machinery, as it was the only place where such grease existed about the place. Now, no one else in that busy flat saw the pursuer playing about, and dirt and grease might surely be found on a rove NOTE. The defender contended that the summons was irrelevant, and even though relevant, that it was not supported by the evidence. The Sheriff is of opinion that he is wrong in both of these contentions. The condescendence avers that the pursuer was in the employment of the defender as a rove-piecer in his cotton mill, and that while in the course of said employment she received the injury of which she complains "in consequence of the fault, negligence, and carelessness of the defender," as set forth in the record. This is a relevant statement to go to proof. The proof establishes that certain wheels at the back of the head stock were intended to be covered or fenced, and were not so, and that in consequence of this the pursuer's fingers were caught by the wheels and were crushed and mangled. That these wheels were dangerous, and ought to have been fenced, there can be really no doubt, when the proof is fairly considered; but perhaps the best proof that they were dangerous, is the fact that the pursuer was injured by them. Now, at common law, and independently altogether of the Factory Act, "when a master employs his servant in a work of danger, he is bound to exercise due care in order to have his tackle and machinery in a safe and proper condition so as to protect the servant against unnecessary risks." (Lord Chancellor in Burtonshill Coal Co. v. Reid, 3, M'Queen, p. 288.) No doubt the Factory Acts add additional force to this common law obligation by the imposition of penalties, and the Sheriff concurs with the SheriffSubstitute in holding that the 21st sec. of the 7th Vict., cap. 15, as explained by the 4th sec. of the Amendment Act 19th and 20th Vict., cap. 38, is applicable to the wheels in question. But it was said that even assuming that the defender here was bound to guard this machinery, he is not liable in damages to the pursuer, because she had no right to be near the machinery at the time when the accident happened, and was amusing herself, and the witnesses Ann Campbell or Caldwell, John M'Murtrie, and Mary Muirhead, gave some countenance to this by their evidence. But Ann Caldwell's evidence is contradicted upon other points by the evidence of several rove-piecers as to whether they passed the head stock, and as to whether they were told not to pass it. And so likewise the evidence of John M'Murtrie and Mary Muirhead is not consistent with that given by several witnesses. The Sheriff cannot, therefore, hold it to be proved that the pursuer, by her own carelessness, brought down the calamity upon herself. There is one feature of the case which calls for some notice. The accident took place in January, 1860. The pursuer, in consequence of it, was off work for nearly three months, during which time the defender paid her her wages, as if she had been working, and then she returned to the defender's service and continued in it for nearly a year without making any claim for damages, and the action is only raised in April, 1861, apparently on account of her having been dismissed from the defender's service. All this may not be a bar to the action, but it certainly is a reason why the damages should be made moderate. Damages for the loss of three fingers, and an injury to a fourth, to a person who must earn her livelihood by manual labour, cannot be said to be otherwise than moderately estimated when decree is given for only £40. The pursuer having failed in her appeal to get a larger sum awarded, no additional expenses are found due. WILLIAM HAMILTON and Others (Clark's Trustees) v. Clause-Construction.-A clause in a contract of co- THE late Mr Charles Clark, merchant in Glasgow, was for some time a partner of the firm of Potter, Wilson, & Co. The contract of copartnery was dated 14th February, 1851, and Mr Clark retired from the company on 21st September, 1854. His retirement, and the terms and conditions under which it was done, were arranged by a joint minute. Mr Clark died in 1856. Under that minute Mr Clark's trustees, alleging that certain sums remained due to Mr Clark, had endeavoured to arrange extra-judicially; but this failed, the defenders alleging that, in place of there being any sums due to Mr Clark's trustees, they were indebted to the defenders in considerable sums. This involved an accounting; and the trustees believing that the contract of copartnery contained a clause of reference sufficiently broad to include the differences between them and Messrs Potter, Wilson, & Co., they, founding on that clause, presented a petition to the Sheriff to have the differences settled under that clause. The clause is as follows:"Thirteenth-When, and as often as, any disputes or differences shall arise between the parties, or between them, or either of them, and the heirs, executors, or representatives, trustees, or creditors of a deceased, insolvent, or bankrupt, or any ejected partner, relative to the true intent or meaning of these articles, or the fulfilment thereof, or the obligations of the partners to the company or each other as partners, or to the management of the business, or the paying out of the share of a deceased insolvent, bankrupt, or ejected partner, or the dissolution of the company, or the books and accounts of the company, or the accounts of the partners in the company, or the valuation, or disposal, or sale of the stock, property, assets, estate, debts, and effects of the company, or the recovery or payment of the debts or any of the balances of the company's books and affairs, or the winding up of the concern, or in any other way in relation to the premises, all such disputes and differences, and every one of them, shall be submitted and referred to the amicable decision, final sentence, and decreet-arbitral of two persons, to be mutually agreed upon and named, with power to such persons so named to appoint an oversman in case of their differing in opinion; and in the event of the parties not agreeing on two persons as arbiters, then it shall be in the power of any one or more of the parties to make summary application to the Sheriff of Lanarkshire by a short petition, and the said Sheriff shall have power, and he is hereby authorised and empowered, and his authority and jurisdiction to that effect is hereby prorogated, any law or practice to the contrary notwithstanding, de plano, to appoint and nominate two discreet persons to be arbiters as aforesaid, with power to them to name an oversman; and such arbiters and oversman to be agreed on or appointed as aforesaid shall have full power to take all steps necessary for bringing such disputes and differences to a just and speedy issue; and the awards and decreets-arbitral of such arbiters or oversman, interim or final, shall be binding and conclusive on all concerned." The record was made up by condescendence and defences. The pursuers pleaded 1. The claims made by the pursuers against the defenders, and by the defenders against the pursuers, being only competent to them respectively, under the contract, they are each entitled to have these claims determined in the manner which the contract provides. 2. The points in dispute betwixt the parties being essential to the extrication of the stipulations contained in the contract, the clause of reference to arbiters to be mutually chosen, though they are unnamed, is competent for the ascertainment of such dispute or difference. 3. It being part of the contract that any question which might arise as to the amount due to or by any of the partners was to be determined by arbitration, the reference clause is binding to the effect of having such questions determined as therein provided, even though the arbiters are not named. 4. In the whole circumstances, the defenders are bound to concur with the pursuers in a reference of the dispute or difference which has arisen between them to arbitration, in terms of the reference clause in the contract. 5. Failing the defenders concurring with the pursuers in the nomination of arbiters for the purposes aforesaid, it is competent to the Sheriff to make such nomination in terms of the contract. The defenders pleaded 1. The prayer of the petition that the defenders should be decerned and ordained to concur with the petitioners in entering into a submission to two arbiters, to be mutually agreed on, not being warranted by the terms of the contract of copartnery founded on by the pursuers, cannot be granted by the Court. 2. Mr Clark, the pursuers' constituent, having ceased for two years before his death to be a partner of the firm of Potter, Wilson, & Co., the pursuers are not entitled to found upon the clause of reference contained in the contract of the company, which only applies to disputes between existing or ejected partners, and the heirs, executors, representatives, trustees, or creditors of deceased or insolvent partners. 3. All rights and liabilities as between the defenders and the late Mr Clark being fixed and determined by the minute of 21st September, 1854, in which no allusion is made to any reference of disputes; and the contract of copartnery, in so far as the late Mr Clark was concerned, having been superseded and put an end to by this minute, the pursuers are not entitled to found on the reference clause contained in the contract. 4. No arbiters having been named in the contract, there is no valid reference, and it is not competent to the Court to supply the omission. 5. The pursuers having stated no objections to the accounts rendered to them by the defenders, and the defenders being willing, and having all along been willing-just count and reckon with the pursuers, no good grounds have been alleged or exist for the presentation of the petition in this process. The record was then closed. The questions raised under the record were-whether the kind of differences which had arisen between Mr Clark's trustees and Messrs Potter, Wilson, & Co. were embraced in the arbitration clause; and whether, if they were so, the clause was valid and binding on the parties. Parties' procurators having been heard on the closed record, the Sheriff-Substitute pronounced the following judgment, which has been acquiesced in: Having heard parties' procurators, and resumed consideration of the whole process, Finds that the pursuers sue as trustees of the late Charles Clark, who died in the year 1856: Finds that in February, 1851, the truster became a party to the contract of copartnery of which No. 9-1 is admittedly a printed copy, and in virtue of said contract he continued to be a partner of the defenders' firm of Potter, Wilson, & Co., till 30th June, 1854, when, by mutual arrangement, he retired from the firm under the conditions set forth in the copy minute No. 9-2: Finds that the pursuers, conceiving that, as trustees of the said Charles Clark, they have certain claims against the defenders, have instituted the present summary action to have them ordained to concur in entering into a submission in terms of the provisions of art. 13 of the said contract of copartnery, whereby it is declared that, (see supra for clause): Finds that the pursuers contend that a dispute or difference of the character contemplated has arisen between them as the "trustees of a deceased partner" and the defenders; but Finds that the late Charles Clark ceased to be a partner of the defenders' firm two years before his death, and some months before the execution of his trust disposition: Finds that the provisions of the above article of the contract of copartnery, in as far as relating to trustees, apply exclusively to the trustees of an insolvent or bankrupt partner, or of an ejected partner, or of one who was a partner at the date of his decease: Finds that Mr Clark was not in the sense of the contract an ejected partner, he never having been ejected from the concern under the pro visions of either the third or twelfth article; and he was not a partner who deceased "during the existence of the copartnership," in terms of the provisions of the sixth article, and who in that case would have been correctly described as "a deceased partner:" Finds that from the moment Mr Clark retired from the firm, his rights and interests ceased to be regulated by the contract to which he was no longer a party, but were arranged and provided for by the mutual minute No. 9-2, in which there is no stipulation that a submission shall be entered into in case of differences arising: Finds that whilst the pursuers have an admitted right, in reference to the provisions of said minute, to institute an action of count and reckoning against the defenders, they have no right, not being trustees of a deceased partner, but only trustees of an individual who had ceased to be a partner two years before his death, to demand that the defenders shall enter into a submission with them, in virtue of the provisions of said thirteenth article, which are no longer applicable, and on which Mr Clark himself, had he been alive, could not now have founded: Therefore, sustains the defence set forth in the second and third pleas in law annexed to the defences No. 6, 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. Alt. ADAM MORRISON. Act. JOHN STRACHAN. 9TH JUNE, 1862. SHERIFF COURT, GLASGOW. (MR SHERIFF BELL.) WILLIAM BUCHANAN and Mandatory v. CHARLES ROBB. Public carrier-Edict nautæ caupones-Contract of deposit. A railway carrier and contractor was employed to remove furniture, a portion of which was to be conveyed to a certain specified place. On arriving there, no one was found to take it in charge, and the carter returned with it to the contractor's quarters. It remained there for some time, and notice was sent to the The property remained in the contractor's possession for two and a half years, but no entry was made in any book regarding it, nor was any charge made for storeage. The key was not delivered to the contractor, nor were the contents declared. Held, that the contractor had not been proved guilty of negligence in storing and keeping the property, and having received no hire for it, he was not liable for its value on its disap owner. pearance. THE pursuer sued the defender, a railway carrier and contractor in Glasgow, for the sum of £28 12s 6d sterling, being the value of a chest and the contents thereof, as enumerated and set forth in an account annexed to the summons, delivered to the defender, 26th May, 1858, for the purpose of being stored in his premises, but which chest and contents he had failed to deliver, though repeatedly required so to do. The defence was-( -(1) That the pursuer, not having averred that he was the owner of the chest and articles libelled, he was not entitled to pursue the action; (2) That the defender denied that the chest and contents thereof libelled was delivered to him for the purpose of being stored in his premises, or that he was in any way responsible for the said chest or its contents. The record was then closed, and of consent the pre liminary plea was repelled, and a proof, pro ut de jure, allowed to the pursuer, and a conjunct probation to the defender, before answer. The proof was then led and parties' procurators heard thereon, when the SheriffSubstitute pronounced the following Interlocutor: Having heard parties' procurators, and resumed consideration of the proof, productions, and whole process, Finds, first, in point of fact, that the defender, who is a railway carrier and contractor, was employed by the pursuer, Alexander |