The

doth in his own affairs," and he is responsible only for fraud or culpa lata, "quod dolo ecquiparator in jure:" Finds that the chest in question was kept with reasonable care by the defender, having been put into a place properly secured and fastened, along with his own goods, and "the ordinary diligence of a man of ordinary prudence was observed:" Finds, farther, that even although it could be held that there had been an express hiring of care and custody, no responsibility for the loss of the chest would attach to the defender, unless there was established against him that neglect of middle or average care and attention which is called culpa levis, and no such neglect has been instructed: Therefore, and under reference to the annexed Note, sustains the defences, and assoilzies the defender from the conclusions of the action; but, in respect it rather appears that the chest and its contents were carried off a considerable time before any notice of their abstraction was given to the pursuers, finds no expenses due, and decerns. NOTE. The evidence leads to the belief that the pursuers had no intention at first to allow the chest to remain long in the defender's custody, and that if it had been taken away within a few weeks or months, no charge would have been made for keeping it. There is certainly no proof that there was any hiring of custody. It is also a material circumstance that so negligent were the pursuers themselves in the matter, that, for upwards of two years and a-half, they never made a single inquiry at the defender regarding the chest. defender was clearly not under the edict Nauta caupones, etc., the chest not having been entrusted to him in the character either of carrier or inn-keeper. But, even under the edict, the custodier is not responsible if the loss arises from robbers Tit. i., sec. 28. This would apply, a fortiori, to storekeepers; or housebreakers-Watting, June 10, 1825, and Ersk. B. iii., whilst as regards lodging-keepers, they are held not to be within the edict, and not liable for the effects of lodgers stolen out of the house-Bell's Princ., sec. 236; Comyn's Digest, voce, "action upon the case;" and Thomson, 24th January, 1820, Barn & Ald, p. 283. Now, there is little doubt that the chest in question was stolen from the defender's premises, and the presumption is that it was stolen by means of housebreaking. If the pursuer Alexander Buchanan had kept it at his own premises in Trongate, in the same way that the defender kept it first in Brunswick Street and afterwards in West Nile Street, he could hardly have been held responsible to the other pursuer for its loss by theft, and there seems no more reason for holding the defender responsible. Had the chest been the defender's own, he could not have taken better care of it than he did; and even where there has been a distinct hiring of custody, no liability attaches to the custodier if there has been no neglect, but, on the contrary, the rule applies res perit suo domino. In the case of Trotter, Morr., p. 10,080, which it was stolen, was found not liable for it to the hirer. a person who had put a hired horse into a livery stable from Neither is it to be forgotten that the chest was locked, that the key was never delivered to the defender, and that he was

M'Allister Buchanan, on the 26th May, 1858, to remove his furniture from Hillhead to Abbotsford and Apsley Place: Finds that among other articles there was a large and heavy chest filled with tools belonging to the pursuer, William Buchanan, which was first carted to Apsley Place, where the defender's carter, Hugh Cameron, was desired to take it to the pursuer, Alexander Buchanan's warehouse in Trongate: Finds that Cameron did so, but as he saw no one at the warehouse to give him instructions concerning it, he took it on to the defender's yard in Brunswick Street, and deposited it there: Finds that Cameron was sent twice by the defender to the said pursuer's warehouse to inquire what was to be done with the chest, but he did not see said pursuer, and only left word where the chest was: Finds that said pursuer has deponed, when examined as a witness in causa, that he called two or three days after the 26th May at the defender's yard, and saw the clerk there, and requested that the chest should be kept in a dry place, and expressed a hope that the defender would not charge much for the keep of it, but said, at the same time, that he would pay any reasonable store-rent, though no sum in particular was agreed on; and he has further deponed that he saw the defender himself on one occasion afterwards, and told him that as his brother (the pursuer, William Buchanan) had gone abroad, the chest might have to remain for some time, and that he hoped it would be kept dry: Finds that the defender has, on the other hand, deponed that no such conversation ever took place between him and said pursner, and that he never saw either of the pursuers on the subject of the chest during the whole time he had premises in Brunswick Street, and was never informed that the chest was to be taken there, and entered into no agreement to store it: Finds that the defender's clerks, Robert Grierson and John Watson, who were the only clerks in said defender's employment in Brunswick Street in May and June, 1858, have deponed that nothing was ever said to them by the pursuer Alexander Buchanan about paying store-rent for the chest; and the first of said witnesses, with whom the said pursuer settled the carting account No. 5, states that all which was on that occasion said about the chest by said pursuer was, that it contained steel, and that it had been sent to the defender's to be kept for a few days: Finds that the defender's clerk, James Orr, who went to him on 1st July, 1858, has likewise deponed that he never saw either of the pursuers at the premises in Brunswick Street: Finds it also proved that no entry of said chest or of any charge for store-rent on account of it was ever made in the defender's books, and that the defender does not carry on the business of a storekeeper, and never charged, when in Brunswick Street, store-rent for any of his customers' goods which were allowed, at their request, to lie there for short periods: Finds that the chest was kept in a safe and suitable place as long as the defender had premises in Brunswick Street, and when he left said premises at Whitsunday, 1859, he removed the chest along with his own effects to the new premises to which he went in West Nile Street: Finds that the chest was there placed in a back shed, in which the defender kept his own and other persons' goods, access to which could be had only by two doors, one of which was always kept locked, and the other, though open during the day, was locked at night: Finds that neither of the pursuers, nor any one on their behalf, called about the chest or looked after it from the latter end of the year 1858 till March or April, 1861: Finds that when it was then inquired for at the defender's premises in West Nile Street by the pursuer Alexander Buchanan, a search was made for it, when it was ascertained that it had gone amissing, and was no longer in the said premises: Finds that there is no evidence to show how or by whom it had been abstracted, but there appears reason to believe that the chest itself, without any of its contents, is now in the possession of Wordie & Co., carriers, Queen Street: Finds that, in these circumstances, the pursuers ask decree against the defender for the sum of £28 128 6d, as the value of the chest and its contents: Finds, second, in point of law, that the evidence does not instruct that there was a contract of locatio operis, or anything beyond a contract of deposite between the pursuers and defender: Finds that in a contract of deposite, under which a corporeal moveable is delivered by the owner or depositor for custody on his account, and the depository engages without hire to keep it safely and restore it on demand, the obligation on the depository is to keep the thing deposited with reasonable care, the diligence prestable being, in the words of Lord Stair, "such diligence as the depositor

In

never shown or told what the contents of the chest were. Morr., p. 3452, says, such state of matters, Erskine, referring to the case of Cassilis, "Where a chest or other repository under lock and key is deposited, without delivering to the it, he is answerable only for the repository itself, and not for depositary the key and showing him the goods contained in its contents, of which he could not be said to have undertaken the charge." At all events, the charge undertaken was that only of ordinary care, and that having been given, the pur

suers claim cannot be sustained.

This Interlocutor was appealed, and after hearing parties' procurators, the Sheriff adhered in the following judgment:

Having heard parties' procurators under the mutual appeals upon the Interlocutor appealed against, and made avizandum, and considered the proof adduced, and whole process, adheres to the Interlocutor for the reasons stated by the Sheriff-Substitute, as also those in the following Note, but with this variation, that half costs are found due to the defender and quoad ultra dismisses the appeals for both parties, and de

cerns.

NOTE. The Sheriff has little to add to the distinct findings in fact, and reasons in point of law, contained in the elaborate Interlocutor and Note of the Sheriff-Substitute. The material

facts of the case appear to be-(1) That the original deposit of the chest with the defender was not for hire, nor under any contract under which profit ordinarily accrues to the depositary; (2) That the key of the chest was not given to the depositary, nor was he informed what the contents of it were, nor how long it was to remain in his premises; (3) That having in this manner deposited the chest with the defender, the pursuer made no inquiries about it for two years and a half, the deposit having been made in May, 1858, and the pursuer having inquired about it in December, 1860; (4) That in the interim the defender moved from his place of business in Brunswick Street to other premises in West Nile Street, where the chest was deposited in a covered shed open during the day but locked at night, along with other articles of a similar kind in the defender's premises, and that when there the chest disappeared upwards of a year after it was first deposited, and this fact was communicated to the pursuer when he called to inquire about the chest in May, 1861, three years after it had been deposited. In these circumstances the defender is clearly not liable, in respect the deposit with him not having been proved to have been for profit, prestant calpam levem only, and the defender appears to have taken as good care of the chest as he could reasonably be expected to do, or as he was in the habit of doing in regard to his own property of a similar description. The pursuer was himself mainly to blame for leaving the chest for two and a half years to encumber the defender's premises before inquiring after it, and there is no ground in law on which the defender can be made responsible for the loss of the chest, either ex damnum fatali, or from its having been stolen, as it would appear to have been from its having been seen elsewhere. In these circumstances, expenses are due to the defender, but they are modified to a half, as he was to a certain degree in fault himself in not having intimated the disappearance of the chest, debito tempore, to the pursuers, who might then have taken steps to trace it out, and possibly have recovered some of its contents. Act. J. M. ROBERTSON.

Alt. W. P. ALLARDICE.

10TH JUNE, 1862.

SMALL DEBT COURT, PERTH. (DR BARCLAY.)

NOTES IN SMALL DEBT CASE.

THE CARSE TURNPIKE TRUSTEES v. THE SCOTTISH CENTRAL RAILWAY COMPANY.

Turnpike-Railroad.-Claim of the former against the latter for damage done to Highway, repelled under the

circumstances.

THIS is an action for recovery of two pounds one shilling and eight pence sterling, "in name of damages caused to a portion of the Upper Carse Turnpike Road, between Muirhall and Perth, by the defenders, or others for whom they are responsible, driving at least five hundred tons of stones from the Muirhall and Corsichill Quarries along the said portion of road towards Perth in the months of November and December, 1859, and January, 1860, for the purpose of constructing the approach to the general terminus at Perth, charged at the rate of one penny per ton, and which claim is made and is due under and by virtue of sections 16 and 51 of The Railway Clauses Consolidation (Scotland) Act, 1845.”

Turnpike, but went through no toll bar-That 500 tons of the metal was for the defenders, the Scottish Central Railway Company-That the stones were ordered by Fraser, the contractor, for works at the terminus, and who paid for them, and he it was who told the witness where the stones were going.

(2.) M'Donald, the quarryman, corroborated Robertson, and swore that nearly a mile of road was much damaged by the cartage, although he sorted the roads all the time of the cartage.

(3.) Roberton, the road surveyer, swore that from seventy to seventy-five yards of road metal were required more than usual for about one mile of the road, solely occasioned by the cartage of stones from the Kinnoull Hill Quarry to the terminus-That 1900 cubic yards of metal were so driven, 1400 of which was to the Scottish North-Eastern Railway Company, and 500 to the defenders, the Scottish Central Railway Company, and that a cubic yard is reckoned a ton, and that one penny a-ton is usually exacted in similar circumstances.

The pursuers were understood to have closed their proof without examining the contractor or any of the Company's servants; and, if so, they certainly have failed in fixing liability upon the defenders. The fact of the defenders being the recipients of any portion of the metal, the cartage of which occasioned the damage, depends solely on hearsay.

On a second day the parties were heard upon the law of the case, and whatever may be the effect of the proof, certainly the pursuers have not made out their legal claim of relief against the defenders.

It is admitted by the pursuers that they have no claim at common law, nor under the Turnpike Acts, either special or general, similar damages frequently occur in the case of every extensive erection where the stones are driven intermediately between toll bars. The only protection is by side bars, and it will require very clear positive enactments to impose greater burdens on railway companies than on other parties performing similar, it may be greater, works. The pursuers' claim is founded entirely upon the 16th and 51st sections of the "Railway Clauses Consolidation (Scotland) Act, 1845.”

The 16th section merely sets forth the works which a railway company is empowered to execute, and it may be admitted that under the interpretation clause works at a station are fairly included. The 16th section is concluded with a provision "that in the exercise of the powers by this or the special act granted, the company shall do as little damage as can be, and shall make full satisfaction in manner herein, and in the special act, and any act incorporated therewith, provided to all parties interested for all damage by them sustained by reason of the exercise of such powers."

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as they think reasonable, and may impose on the company for not carrying into effect such repairs any penalty not exceeding five pounds per day, as to such Sheriff or Justices shall seem just; and such penalty shall be paid to the surveyor or other person having the management of the road interfered with by the company, if a public road, and be applied for the purposes of such road; or, if a private road, the same shall be paid to the owner thereof. Provided always that in determining any such question with regard to a turnpike road, the said Sheriff or Justices shall have regard to and make full allowance for any tolls that may have been paid by the company on such road in the course of the using thereof."

It is clear, under this clause, that the remedy is not that here sought, but rather that the Company shall be ordered to make repairs upon the road, under a high penalty for each day they delay in doing so. No doubt the concluding clause does give some colour to a pecuniary claim of damage; but admitting that such pecuniary award is competent under the 51st section, the mode of recovery is expressly provided for under the 132d section, and which does not recognise proceedings in the Small Debt Court, though under the 147th section something very similar is contemplated. But under the 105th section there is provided an appeal from the Substitute to the Sheriff wherever a record is made up, and which, no doubt, could be as well done by a remit from the Small Debt to the Ordinary Action Roll.

The Sheriff-Substitute scarcely thinks that the 51st section was meant to reach a claim of this description. He is rather inclined to think that it is limited to works adjacent to the line of railway, and where the injury is done directly in the construction of the railway. It is difficult to extend its operation, so far as to include all contracts for carriage of materials from a distance it may be very great. If the Railway Company simply contract for the work, and leave the contractor to find the materials anywhere, it is not obvious how they should be compelled over and above the contract price to repair roads it may be very distant, and with which they might have no knowledge, and that under a severe daily penalty for the act of another over which they had no control. The mora in this case has been very great, and it is doubtful whether the six months' limitation provided by the 143d section does not apply to a claim of damages either under the terms "penalty" or "forfeiture;" but be that as it may, the mora at common law is quite sufficient to bar such a claim. The Company may have lost their evidence as to the exact amount of the damage and their claim of relief, which they might have against their contractor. It is right, however, to record that the pursuers stated that they were able to meet the plea of mora by proof of the claim being timeously made, and of continued correspondence since then up to the date of the action. But if the defenders refused to recognise their claim, the greater necessity for putting it immediately in form of action.

12TH JUNE, 1862.

SHERIFF SMALL DEBT COURT, PAISLEY. (MR SHERIFF CAMPBELL.)

THOMAS WALKER, Writer, Paisley, Collector of Assessments imposed by Abbey Heritors v. THOMAS HOOD Parish Church.- Repairs Assessment. -A voluntary assessment was imposed on the heritors of a parish for the repairs of the parish church. An heritor objecting to pay was sued. In defence he pleaded that the valuation on which he had been assessed included other heritors who had not been sued, and that he was not liable to pay for them. Held that being the successor of the heritor who had successively given off the feus, and who had not applied to the Commissioners to restrtct his valuation, but had continued to pay for many years, he was liable in the assessment.

THE claim in this case was-"To your proportion of the assessment imposed by the said heritors upon the 28th of March last, for meeting the expenditure authorised for certain repairs and improvements on the parish church, and the usual annual disbursements in connection with the church and manse, per minute of the said heritors, dated the said 28th of March last, your valuation being £3 15s Scots, and the rate of assessment 1s 8d per pound, Scots-6s 3d."

The defender pleaded

1. A denial of the statements and grounds upon which the claim is founded, and a denial of the claim itself.

2. The assessment claimed being a voluntary imposition, cannot affect any heritors but those concerned therein; and the pursuer cannot enforce it from an objector; and, further, the meeting granting the assessment was not regularly constituted, and the defender was not warned to attend the same.

3. By the canon law, the expense of building and repairing kirks was a burden on the tiends, and this rule was adopted into our law (see Scots Acts) and the burden charged against the titular or heritors having heritable rights to their tiends, according to their respective Scots valuations-(Robertson and Others, 17th June, 1772, M. 15,691; Connell on Tithes, vol. I., p. 154, and vol. III. p. 376; Dunlop's Parochial Law, p. 7 and seq.; Erskine, vol. I., p. 520 and note.)

4. The defender being only a small feuar in the burgh of Paisley, and possessed of no ascertained or known Scots valuation of property, and the present assessment being rated on such valuation, it is impossible to assess him in that form.

5. Even supposing the £3 15s Scots valuation to have any reference to the defender's feu, it can only be in common with many (probably twenty) other feuars, as the defender's feu occupies considerably less than a quarter of an acre, and this Scots valuation applies at

out the defender and prosecuting him for the whole assessment effeiring to these four acres is most oppressive and illegal. Moreover, the claim is not debitum fundi, and cannot affect singular successors; and the same not being a real burden proper on the lands, the defender is

not liable singuli in solidum, but only in the proportion effeiring to the extent of his own feu-(Stair's Institutes, More's edition, vol. I., p. 306; Erskine's do., vol. I., p. 520; Callender v. Munro, M. 15,632; Dunlop, p. 12.)

6. The superior (or disponer) remains liable in all such burdens according to his cumulo Scots valuation, until he sues and procures a division of his valuation, or, as is usual, takes his feuars and vassals, bound in their titles to pay him a certain sum as their proportion of these burdens—(Muir v. Cunningham, 1746, M. 15,721; Boswell v. Hamilton, 15th June, 1837, s. vol. xv., p. 1148.) 7. Had the assessment been rated on the real (instead of the old valued) rental, according to the recentlyestablished valuation roll, the proportion applicable to the defender's feu could have been properly ascertained and assessed; and since the decision in the Peterhead case in 1852, this is the proper mode of assessing the small feuars, with the heritors, in parishes, partly landward and partly in burgh, for such burdens-(Dunlop, p. 10, and seq.; Boswell v. Hamilton, ut supra.)

The case of Boswell against the Mauchline feuars was chiefly relied on, and the opinions of Lords Craigie, Mackenzie, and Gillies, were referred to.

The pursuer maintained that as he had shown the defender's feu was on a portion of the land to which this Scots valuation applied, and that it was not necessary to announce the meeting otherwise than from the pulpit; and, as the defender was the last feuar or purchaser from the heirs of the late James Buchanan, who had now become wholly divested, and who had formerly paid on the whole valuation, he was entitled to decree and costs. The 33d section of the Lands Valuation Act, 17 and 18 Vict., cap. 91, was cited and founded on.

The Sheriff stated that the facts of the case were now ascertained and not disputed. Buchanan had been originally proprietor of a piece of ground, and was entered as owner thereof in the old Scots Valuation Rolls, which was the only rule of levy; that from the date when he was so entered, he and his heirs after him had always paid the assessment to the heritors effeiring to that piece of ground, although he and his heirs had from time to time parted with various portions of the land, until all that was left to them was the remnant ultimately acquired by the defender; that even after the property of Buchanan and his heirs was restricted to this remnant of his original property, they had continued to stand on the roll and pay the assessment, effeiring to the whole as before; that as his name stood on the roll, the heritors had no alternative except to assess Buchanan and his heirs in terms of that roll, which was their only legal rule of levy; and that when the defender acquired the property from Buchanan's heirs, who thereby ceased to have any property in the Abbey Parish, or, at least, in the piece of ground in respect of which they (Buchanan's heirs) were assessed, the heritors had no choice except to assess the defender, who had come in room and place of Buchanan and his heirs; that the seventh ground of defence was excluded by the 33d section of the Lands Valuation Act; and that for the hardship complained of, the defender was alone responsible, as he ought to have known that Buchanan stood on the old Valuation Roll, and foreseen the consequences of assuming his place, and have guarded himself against those consequences by

applying to the Commissioners of Supply by petition, stating the circumstances, and craving that his valuation according to the old Scots rental should be restricted to the proportion of the land of which he was actually the owner; that this course was well known in practice, and would remove the inequitable result of which the defender complained so loudly; and that as he had hitherto failed to adopt the measures suggested, and as the heritors had no alternative but to levy the whole assesstheft from him and his heirs-the old Scots Valuation Roll being their only rule of levy-the action must be sustained, and decree pronounced for the sum sued for, with expenses.

KERR v. SCOTTISH NORTH-EASTERN RAILWAY CO. Carrier-Railway-Condition.-A Railway Co. having two sets of charges-one for the conveyance of goods at the owners' risk, another at the Co.'s risk, a condition stipulating that “the sender undertook all risk of delay or damage" was held to be reasonable, and, therefore, that the Co. were not responsible for the goods being found at the end of the journey to have been broken— the cause of the damage not being ascertained. CERTAIN castings were sent from Montrose to Kirriemuir, at what was called the "station to station" ratethe sender packing the goods on the trucks, and signing a note to the effect that he "undertook all risk of delay were broken to pieces-some could not be discovered. or damage." On their arrival at Kirriemuir the castings The owner having claimed £7 78 9d as their value, the Sheriff said:—

from Montrose to Kirriemuir, under a "forwarding note," In this case it appears that certain goods were forwarded stipulating that the sender undertook "all risk of delay or damage." The Company have two sets of notices, one for the conveyance of goods at the owners' risk, and another at the third of the sum charged in the latter. The pursuer paid the Company's risk. The carriage in the former case is about a lower rate, and says it was his duty to take the goods to the station and pack them to the satisfaction of the railway officials. He did so accordingly; but on the arrival of the goods at Kirriemuir, they were completely destroyed-how, does not appear.

Now it seems to me to be a reasonable thing for a company of carriers to say we have two prices-if you pay us the first we will insure the safety of the goods entrusted to us for conveyance; if only the second, we will do our best in the circumstances, but the risks incident to the journey must fall entirely on yourself." A condition which would be void standing alone may be fair enough when accompanied by a reasonable alternative, so framed as to put it in the sender's power to have his goods carried free from the conditions. And so it has been held in a number of cases. Thus in Simon v. Great Western Railway Co., 18 C.B. 826, it was inter alia loaded and unloaded by the owners and their agents, and the stipulated "goods conveyed at special mileage rates must be Company will not be responsible for any risk of storage, loss