before a Scottish Court if the other happened Brydekirk, against the Annan District Committee to be temporarily resident in Scotland, or to have of Dumfries County Council. Sheriff Campion, in personal estate in that country capable of being Dumfries Sheriff Court, on the 9th inst., gave arrested. The second reason advanced by the judgment as follows:-This is an action for £7, respondents for denying effect to the reference being the amount of damages or compensation for would have been more plausible if it had been the loss sustained by the complainer from his being law of Scotland that no private agreement could compelled or obliged by the medical officer and exclude to any extent the jurisdiction of the sanitary inspector of the county of Dumfries, or ordinary tribunals. I am not disposed to hold that one or other of them, acting for and on behalf of Scottish Courts are bound to give effect to every the defenders, to cease working at his trade as a stipulation in a foreign contract, unless it is tailor in the village of Brydekirk for a period of shown to be contra bonos mores in the sense of the four weeks during the summer of 1892. By sect. law which they administer. There may be 49 of the Public Health Act, 1867, it is enacted, stipulations which, though not tainted with "any person who, without previous disinfection, immorality, are yet in such direct conflict with knowingly gives, lends, sells, transmits, or exposes deeply-rooted and important considerations of any beddings, clothing, rags, or other things which local policy that her Courts would be justified in shall have been exposed to infection from such declining to recognise them. But the law of disorders shall, on conviction of such offence Scotland has from the earliest times permitted before the Sheriff or any magistrate or justice, be private parties to exclude the merits of any dis- liable to a penalty not exceeding £5." It unpute between them from the consideration of the fortunately happened, in the summer of 1892, a Court by simply naming their arbiter. The rule case of scarlet fever broke out in the house in that a reference to arbiters not named cannot be which pursuer was living and working as a tailor. enforced does not appear to me to rest upon any On the sanitary inspector calling, he asked pursuer essential considerations of public policy. Even if he was still working and sending things out; and if an opposite inference were deducible from the hearing that he was, said it was the worst thing deauthorities by which it was established, the rule fender could do; and that if he persisted, he would, has been so largely trenched upon by the legisla- as pursuer expresses it, "call him up to Dumfries," tion of the last fifty years, both in general and in-i.e., prosecute him for infringement of the 49th local and personal acts, that I should hesitate to affirm that the policy upon which it was originally based could now be regarded as of cardinal importance. For these reasons I am of opinion that the interlocutors appealed from ought to be reversed, and the cause remitted, with directions to sist procedure in hoc statu, in order that the matters in dispute may be settled by arbitration in terms of the contract. Such an order will leave the parties at liberty, in the course of the reference, to avail themselves of the provisions of the Arbitration Act, 1889, and will enable the Court of Session, in the event of any lapse of the reference, to dispose of the merits of the case."

The other learned lords concurred. Respondents were ordered to pay the costs from the date of the Lord Ordinary's judgment-the other costs to be determined by the Court when the case came to be dealt with after the arbitration was concluded.—THE TALISKER DISTILLERY V. HAMLYN & Co.; 10th May 1894.

Counsel for the Appellants, Sir Henry James, Graham Murray, Ruegg; Agents, Finlay & Wilson, S.S.C., Edinburgh, and Ranger, Burton & Co., London.---Counsel for the Respondents, The Lord Advocate, Dankwertz; Agents, Alexander Mustard, Edinburgh, and R. S. Taylor, Son, & Humbert London.

Sheriff Court.

8. PUBLIC HEALTH-PUBLIC HEALTH ACT, 1867, SECT. 49-COMPENSATION.-This was a small debt action at the instance of James Thomson, tailor,

sect. of the Public Health Act, which contains the clause above quoted. That was all the sanitary inspector had power under the Act to do, and this it was his duty to do. The same course was followed at a subsequent visit by the medical officer. After a period of four weeks these gentlemen sent an assistant, Mr M'Nae, to disinfect the place, which was allowed then to be re-opened. As Mrs Scott says "Dr Ross and Mr Osselton were very kind. They said it was necessary to take precautions." All through, they gave the pursuer the benefit of their professional and skilled advice to assist him in complying with the provisions of the Act; and by disinfecting in a proper manner the place and things, put him out of quarantine as speedily as they deemed it safe to do so. Now, it appears that in similar previous cases compensation had been paid. Pursuer and his sister had apparently heard of this, and asked if compensation would be paid. They were told it had been done in previous cases; and both the medical officer and sanitary inspector, as I gather from the evidence, gave them an assurance they would receive every assistance from them in getting their case laid as favourably as possible before the Council. This, I think it is clear from the evidence, they did; more they could not do. Not unreasonably, pursuer assumed, as others had done, he would also be given compensation for the loss he had sustained. If that claim had been brought under the Act, the only section is 116, which provides for such being given " to all persons sustaining any damage by reason of the exercise of the powers of this Act."

attained 14 years
of age.
The Sheriff-Substitute
(Rutherfurd) gave decree for £9 a year from 4th
January 1894 until the child shall attain the age
of 14 years or be able to earn its own subsistence,
and added the following-

Now, I agree with Sheriff Rutherfurd, of Edinburgh, in his judgment in what is called the Gala Water case, that there is nothing in the Act which enforces the defenders or their medical officer to issue or enforce any such order as that alleged to be the basis of pursuer's claim in this case. The Note. This case suggests questions of general pursuer, therefore, whether he is in a better importance. As a rule, in this Court, the father's position, brings an ordinary action for damages. contribution to the aliment of an illegitimate child But here certainly it is necessary to show whether is invariably fixed at £7 per annum, unless in defenders, their medical officer, or some of the exceptional circumstances. It is, however, open officials acting on their behalf, exceeded the powers to the pursuer of the action, at the expiry of the conferred on them by statute. Now, this the time fixed by the decree, to present a fresh applicaevidence either of pursuer or his sister, without tion to the Court for an extension of the period the evidence on the other side, seems to me to and an increase of the aliment if the circumprove conclusively they did not, so that I think stances are such as to render it necessary. In the the defenders should be assoilzied. I think it is present instance the child is now nearly 12 rather a hard case that pursuer and his sister years of age, and, in the opinion of the Sheriff(though she is not a pursuer in this case), who Substitute, the sum required for its board and suffered by this unfortunate attack of scarlet fever, lodging will certainly not be less that £18 per were buoyed up by the false hope that they would, annum. It therefore appears to him that the as had been done in previous cases, be compensated defender's contribution may fairly be increased for the loss they were put to-pursuer particularly, from £7 to £9 per annum, but of course that is as he was in no way responsible for the children only to continue until the child is 14 years of who contracted the fever. I think it is a great age, or not even till then should the child be able pity that there is no provision for such compensa- to earn its own subsistence at any earlier date, tion in unusual cases of this sort, for it is clearly which, however, is not likely. It seems hardly the interest of every person in the community to necessary to add that the pursuer has no title to stamp out any infectious disease as soon as it issue for the aliment of the child after it has ceased discovered. However, that is a point which is clearly outside my province.-THOMSON . ANNAN DISTRICT COMMITTEE OF DUMFRIES COUNTY COUNCIL; 9th May 1894.

Agents, J. A. & W. Moodie, Dumfries, for Pursuer; John Henderson, Dumfries, for Defenders.

9. PARENT AND CHILD-ALIMENT-RATE OF ALIMENT FOR ILLEGITIMATE CHILD--PERIOD DURING WHICH PAYABLE.-This was an action at the instance of the mother of an illegitimate male child against the putative father for an increase of the rate of aliment and an extension of the time during which it was to be paid. The pursuer obtained in 1884 a decree in the Sheriff Court for aliment at the rate of £7 per annum for seven years from 4th July 1882. This present application prayed for aliment at the rate of 5s per week (£13 a year), payable from 4th January 1894 till 4th January 1900, when the child would be nearly 18 years of age. The pursuer stated that in the end of the year 1893 she offered the defender the custody of the child, otherwise she would claim an increase of aliment. It was argued for the pursuer that the cost of living was now much increased, and that the sum spent by the pursuer upon the upbringing and education of the child exceeded the sum of 10s. per week, and that the father was bound to relieve her of half that amount. The defender pleaded that the pursuer's averments were not relevant or sufficient to warrant the prayer of the petition. He contended that he was not bound to pay a higher rate of aliment than that already fixed by the Court, and that, in any case, the pursuer had no title to sue for aliment payable after the child

to be in pupillarity.

On appeal, the Sheriff (Blair) adhered. He stated in a note that the Sheriff-Substitute had made an addition to the sum formerly awarded to the pursuer for the aliment of her illegitimate son, of whom the defender is the putative father, but has not found her entitled to expenses, probably because her demand was extravagant, both as regards time and amount. No reasons were stated at the discussion which in the Sheriff's opinion should lead him to alter the decision of the Sheriff-Substitute.-MORRISON v. PATRICK; 10th May 1894.

Agent for Pursuer, R. Broatch, L.A.-Agent for Defender, W. Black, S.S.C.

10. ASSESSMENT GOLF COURSE PASTURE LANDS "PUBLIC HEALTH ACT, 1867," SECTION 94.-The Lenzie Golf Club have a lease for ten years of certain fields, being part of the farm of Wester Auchenloch, in the county of Lanark. The County Council of Lanarkshire being the local authority under the "Public Health (Scotland) Act, 1867," assessed the club for the year 1893-94 on the full annual rental, viz., £55. The golf club appealed against this assessment, on the ground that, though played over by a golf club, this did not alter the character of the land, and that consequently, under the 94th section of the Act, the lands being pasture lands, they only fell to be assessed on a fourth of the £55. Sheriff-Substitute Birnie, sitting in the Sheriff Court at Glasgow, refused the prayer of their petition, on the ground that the primary use of the fields was for golfing and not for the pasturing of cattle. The Sheriff-Principal (Berry) has now

recalled his 'Substitute's judgment, and decided in Note. Under a motion for the recall of favour of the contention of the golf club. In sequestration, the defender has raised the interesta note the Sheriff-Principal says:-"The questioning general question as to whether the lessor in a raised on this appeal is whether certain fields bowing contract has a hypothec over the invecta taken on lease by the Lenzie Golf Club fall within et illata of his bower. The answer to this question the description of pasture land and should be must depend to a considerable extent upon assessed at the lower rate of one-fourth of the whether a bowing contract is to be viewed in the annual value. The fields prior to the lease to the main as a contract of hiring, or as a contract of golf club were cropped in rotation along with the lease. So far as I have been able to discover, the other fields on the farm. The club, in addition to nature of a bowing contract has not been the playing golf over the fields, sublet the grazing subject of express judicial decision. The point last year for a rental of £15. The character of was incidentally raised in Goldie, 1839, 1 D. 426, the fields as pasture land seems beyond question, but not being essential for the decision of the but it is said that the use of them by the golf case, it was not judicially determined. Even club is the only element to be considered in there, however, it would appear that a difference reference to their liability to assessment. I am of opinion existed between Lords Medwyn and not satisfied that that is so. The proviso in the Jeffrey, the former viewing a bower as a subPublic Health Act which lowers the assessment tenant, while the latter preferred to regard him applies, inter alia, to "pasture land." In some rather as a manager. The later writers on the cases the use to which land is put may be important subject of land ownership have also differed on in considering whether it falls within the descrip- the nature of this contract. Mr Hunter (Landlord tion of land to which the exception is applicable; and Tenant, vol. 1, 345), approves of the view but if land is in its nature pasture land, I do not expressed by Lord Jeffrey that the bower is a think it ceases to fall within the proviso because manager, while Professor Rankine (Leases, p. 256) the persons to whom it is let may in fact apply it adopts Lord Medwyn's view, and regards him to other purposes. The land here is truly pasture rather as a sub-tenant. Such being the state of land, and so falls to be assessed at the lower rate. the authorities, it only remains to consider whether For the Golf Club, R. G. Ross.-For the County the true character of the present contract can be Council, Alec. Ross. ascertained from the terms of the deed. Now the subject let or hired is the bowing of 22 milk 11. LANDLORD AND TENANT BOWING CON- cows, together with the use of a dwelling-house, TRACT SEQUESTRATION-- RECALL.- By bowing byres, dairy-house, and the grass of four specified contract entered into between William and Archi- fields, all at the farm of Balmichael in Arran. bald Mackinnon, Balmichael, Arran, and Bryce | On the other hand, the consideration or hire to be Cumisky, it was, inter alia, agreed that Cumisky paid by the bower was to be the "sum of £242, was to have from the Mackinnons, for the period being at the rate of £11 for each cow for the of one year from 24th November 1893, the bow-year, and that by twelve monthly payments of ing of 22 milk cows, along with the use of a dwelling-house, byres, dairy-houses, and the grazing of four fields, all at said farm of Balmichael. The bower was to pay "the sum of £242, being at the rate of £11 for each cow for the year; and that by 12 monthly payments of £20, 3s. 4d. sterling each." The bower failed to make the stipulated payments; and when he was in arrears three months, the lessors raised the present action in the Sheriff Court at Rothesay to recover the amount which they alleged to be due to them, craving, inter alia, sequestration of the bower's goods and effects. On 3rd April 1894 warrant was granted to cite the defender, and also to sequestrate and inventory his goods and effects. This warrant was duly executed. The defender thereupon moved the Court to recall the sequestration, without caution, on the ground that it was illegal and inept.

The further particulars of the case are sufficiently explained in the note appended to the interlocutor by Sheriff Martin. The interlocutor was as follows:The Sheriff-Substitute having heard parties' procurators, recalls the sequestration granted on 3rd April 1894: Finds the defender entitled to expenses and modifies the same to £2, 2s., and decerns.

£20, 3s. 4d. each." Further, the duration of the contract was to be for one year from November 24th, 1893. Such being the terms of the deed, I have come to the conclusion that it is to be regarded as a contract of location, for a particular purpose, of the 22 cows mentioned therein, and that the accommodation, utensils, and pasture are to be regarded as mere accessories of that contract. If this view be correct, then it follows that the lessors have no right of hypothec over the effects of the bower, and that they must recover, by some method other than a landlord's sequestration, any sums which the bower may be restingowing to them. On the other hand, if this contract of bowing be viewed as one of sub-lease, it would appear that any right of hypothec existing in the lessors has been taken away by the Hypothec Amendment (Scotland) Act, 1867, sections 2 and 6, or, by the Hypothec Abolition (Scotland) Act, 1880, section 1. In either view of this contract the defender is entitled to have the sequestration awarded on 3rd April recalled as inept.-MACKINNONS . CUMISKY; 15th May 1894.

Agent for Pursuers, Carse.-Agent for Defenders, Mackirdy.