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The record was made up by condescendence and defences, which were unusually long and detailed. The record having been closed, and parties heard thereon, the Sheriff-Substitute pronounced the following Interlocutor:

Having considered the closed record, productions, and whole process, and heard parties' procurators thereon: Finds it admitted that the defender is the father of the pursuer's two children-Jessie Lang and Jane Lang-mentioned in the summons, and that he is bound as such to contribute to their support: Finds that the said Jessie Lang was born on 25th December, 1853, and the said Jane Lang on 11th Oct., 1855: Finds, that in the circumstances disclosed on the record, and admitted by both parties, the sum of twenty pounds per annum is justly due by the defender to the pursuer, as the amount of aliment due by him in respect of the said children, being at the rate of ten pounds per annum for each child, the same being payable by him until each of the said children respectively attains the age of twelve years complete: Therefore decerns against the defender for payment to the pursuer of the sum of twenty pounds yearly of aliment for the said Jessie Lang and Jane Lang, being, in equal proportions, of ten pounds for each child, payable said aliment quarterly, and in advance, commencing the first quarter's payment of five pounds, being two pounds ten shillings for each child as at 20th January, 1861, and the second quarter's payment of same amount on 20th April, 1861, and so forth quarterly and in advance until the said Jessie Lang attains the age of twelve years complete, and thereafter at the rate of two pounds ten shillings quarterly and in advance until the said Jane Lang attains the said age: Finds the pursuer entitled to expenses, but only subject to modification, and fixes such modification at the amount of one-half of her expenses of process, as the same shall be taxed by the auditor of Court; allows the pursuer to give in an account of these expenses, and remits the same, when lodged, to the auditor of Court to tax and report.

NOTE. Two questions occur in this case, viz.:-1st, The amount of aliment payable for each child; 2d, the period for which it is payable. The Sheriff-Substitute feels the difficulty and delicacy of deciding these questions, and he has not arrived without diffidence at the results embodied in the preceding Interlocutor.

Both parties seemed most anxious to avoid a proof, which could only have been relevantly directed to two points, viz., -the amount of the defender's annual income; and second, whether he is at present living "with another concubine" in adulterous intercourse-the first of these inquiries going to the question of the rate of aliment; the second forming a conclusive objection to the defender's demand that aliment should cease as each child reaches the age of seven years, he being ready then to assume their custody and undertake the whole burden of their support. The one inquiry would have been most expensive and difficult, and the other most painful; and it is thought sufficient materials exist for judgment in the facts

admitted on record.

The decision of the Scottish Courts-both Supreme and Inferior-on this subject are not, perhaps, easily reconciled, and the dicta of the Judges are certainly conflicting. But while it

seems to be fixed that the aliment of bastard children shall not

exceed the measure of the necessaries of life, such necessaries, i.c. of wholesome food, shelter, and raiment, are dependent, to some extent, on the social rank of the parents, and especially the mother, or it may be on the peculiar position in which the children may have been placed by the antecedent acts of their father, and for this reason that the child, for instance, of an agricultural labourer shall be supported in health at less cost than the child of a woman of high rank-many things being necessary to the very existence of the latter, which to the former would be superfluous; and, again, if the father has for years brought up his bastard child in a style of comfort and luxury, and has provided for its education in a much more liberal way than the law would have compelled him to do at the date of its birth, such father shall not be allowed all at once to cut down the allowance for its maintenance to the smallest sum known in the Court, always asssuming that he is quite able to make a more reasonable allowance. He has, in fact by his own conduct, created a kind of fictitious necessity with reference to the scale of the child's aliment, and must

be so far bound by it. Again, the father cannot meet th claim for aliment by offering to undertake the custody of child even if it be above seven years of age, provided there in his own conduct such moral blemishes as make it contra to the child's interest to be placed in his hands. On the o hand, the Sheriff-Substitute cannot find any warrant for tinuing the decerniture for aliment for a female pupil bey the period of her puberty-twelve years-unless sickness imbecility, or something of that sort, can be alleged. If two children in question, or either, should be incapacita when they reach that age, for supporting themselves, a rene application, proceeding on that allegation, can then be ma As to the grounds on which the rate of aliment has fixed in this case, the Sheriff-Substitute may observe the this, as in many counties, the minimum allowance-eve the lowest class of society-for the aliment of a bastarde is £6 per annum, and a somewhat higher sum has usually allowed where the parents belonged to a higher class for a shopkeeper, with a successful village trade, and higher where the social mark or wealth of the parties a rised it.

Here there seems to be no doubt of the ability of the d der. He is a Town Councillor of the Burgh of Johns and the pursuer says he has an income of not less than a year. He does not admit this, but declines to say wh income amounts to; and, in point of fact, confesses that in extensive business, and easy circumstances. But his is that of a pawnbroker; he obviously lives in a some mean style; and his children are born of an adulterous course with a maid servant, who had previously had a child to another man in her own rank. The social both parties, therefore, is humble enough, and the mere the father being rich, even if held as proved, is very rial. But, then, from the time the two children in cohabited generally with the pursuer, and even when ne were born, and down to a very recent period, the de dent with her, provided, on a pretty liberal scale, for ture of these children; they seem to have been carefully and eventually put to school. The pursuer says she re for herself and her two children money equivalent to annum, besides being put in the way of earning someth keeping a shop. The defender admits he gave about week in money. In short, till the parties quarrelled, dren were not badly off. The mother, too, from domestic servant, became a householder, and is now the sum of £10 a year for each child, which the defe on the business of dressmaking. In the whole circums quite able to pay, seems the smallest sum that can be a

against him.

write in his statement of facts on record, certainly pre The autobiography of the defender, which he has ch strange medley of vanity and moral obtuseness; but dent of this, the fact that the defender is a marri whose wife is still alive, though living separate from that the children were born during his marriage, is th be sufficient to prevent him from claiming their cust cially as they are both females. If this had not been of her averment that the defender is now living in the Sheriff-Substitute must have allowed the pursue with another woman. It is not said that there is an exceptionable in the pursuer's present conduct or mode As to expenses, the Sheriff-Substitute cannot inqu the extrajudicial attempts at settlement by the parties defender's verbal offers. The pursuer was entitled her action. The amount consigned by the defender her claim is too small; but, as the pursuer's demand been held excessive, she has only been allowed one-half

expenses.

This Interlocutor was appealed, and parties' tors having been heard, the Sheriff pronounced lowing judgment:

The Sheriff having heard parties' procurators on the der's appeal, and considered the appeal for the pursu avizandum, and considered the productions and whole p Recalls in hoc statu, the Interlocutor appealed against, the record to be opened up, appoints the pursuer to s on record; by an addition thereto, the facts and circums upon which she maintains that the offer made by the de in the seventh article of his statement of facts is not a su

swer to the claim for the aliment of both or either of the dren, and that within fourteen days from this date, and points the defender to answer such additional statement by Be pursuer within eight days thereafter, and on the said statesent and answers being so lodged, appoints the record to be in closed: Finds the pursuer entitled to aliment ad interim reach of the said children at the rate of six pounds per un, beginning the payment of the said aliment as at tieth January, eighteen hundred and sixty-one, and the d quarter's payment being at twentieth April, eighteen indeed and sixty-one, and so forth quarterly and in advance al decree has been pronounced in this cause and deGrants warrant to, and authorises and ordains, the df Court to pay to the pursuer the sum of nine pounds ed in his hands by the defender, the same to be held pt payment of the interim aliment now awarded and ated for. Mor-In the case of Corrie v. Adair, 24th February, 1860, held that the obligation of a father to aliment an illee child was discharged by an offer on his part to the to take the child into his own family. But it was han in that case that such an offer by a father will only da discharge of his obligation to aliment if, in the of the Court, the offer ought in the circumstances to be defender here has made such an offer, to which the purreplied "The defender is the last man morally qualiLave the custody of little children, especially females, e pursuer would rather starve than entrust them to him. got another concubine, and it is believed at least r child." There is no specific reply by the defender to Berment. He merely says at the end of his statement deries the pursuer's statements in her answers "in so Inconsistent with the defender's statement of facts." the above averment as to the defender at present living ther concubine is not inconsistent with anything in der's statement of facts, and the averment therefore be held to be admitted. But it was earnestly contended debate that this was not what was meant by the general the Sheriff is willing not to tie down the defender ery strict construction.

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state of the record upon the matter is unsatisfactory. er must give the new concubine's name if it can be and state whether she lives in family with the defender. ender, also, must state in his answer whether he to keep the two children, in the event of his offer being in his own house, and who is the person that preeps it for him. If the averments of parties are releare contradictory of each other, of course a proof lowed.

papers ordered having been lodged, and the again closed, the Sheriff-Substitute thereafter ced the following Interlocutor:

considered the record as now made up and closed with the productions and whole process, and heard

procurators thereon: Finds it admitted that the defen

The father of the pursuer's two children, Jessie Lang Lang, mentioned in the record; and that he is bound, to contribute to their support: Finds that the said Lang was born on 25th December, 1853, and the said Bang on 11th October, 1855: Finds, for the reasons set the subjoined note, that the pursuer is not bound to the offer made by the defender in the seventh article of ment of facts, as explained by the fourth article of his to the pursuer's statements added to the record under rif's order of 2d May last, viz., to remove the children custody of the pursuer, with the view of providing education and maintenance by placing them under ge of Mrs John Campbell, but that the pursuer is insist in her present demand for the aliment of her n: Finds, that in the circumstances disclosed on the sad admitted by both parties, the sum of twenty jer annum is justly due by the defender to the pursuer, mount of aliment due by him in respect of the said being at the rate of ten pounds per annum for each he same being payable by him until each of the said rely attains the age of twelve years complete: Thereagainst the defender for payment to the pursuer am of twenty pounds yearly of aliment for the said

Jessie Lang and Jane Lang, being, in equal proportions, of ten pounds for each child, payable said aliment quarterly, and in advance, commencing the first quarter's payment of £5— being two pounds ten shillings for each child-as at 20th January, 1861, and the second quarter's payment of same amount on 20th April, 1861, and so forth quarterly, and in advance, until the said Jessie Lang attains the age of twelve years complete, and thereafter at the rate of two pounds ten shillings quarterly, and in advance, until the said Jane Lang attains the said age: Finds the pursuer entitled to expenses, but only subject to modification, and fixes said modification at the amount of one-half of her expenses of process incurred prior to the date of the Sheriff-Substitute's Interlocutor of 25th February, 1862, the pursuer being entitled to full expenses subsequent to said date-all as the same may be taxed by the auditor of Court; allows the pursuer to give in an account of her expenses, and remits the same, when lodged, to the audi tor of Court to tax and report.

NOTE.-The Sheriff-Substitute has arrived at the above decision by applying, as he believes himself entitled to do, the exercise of his discretion to the special circumstances ascertained by the admissions of parties.

The Sheriff-Substitute is aware that claims for the aliment of bastards may be met by an offer on the part of the father to undertake personally the custody and maintenance of such children, provided the Court is satisfied that the interests of the children are not prejudiced by such an arrangement.

It might well be doubted in this case whether any Court would sanction the removal of the children in question from their mother, the pursuer, against whom nothing is really alleged, except her having given birth to the two unfortunate adulterine bastards themselves, with a view to placing them in the family of such a man as the defender admits himself to be. But the Sheriff-Substitute has no desire to enlarge on this aspect of the case, nor is it necessary for him to do so. For the defender now says that his intention is "to give up housekeeping for an indefinite time; to abandon any fixed domicile in Scotland; and to travel abroad for the benefit of his health." At the same time in preference to paying aliment to the pursuer for the support of her two chilrden she has had by him, he states it to be his intention, if they are made over to him, to board them with Mrs Campbell, a respectable lady in Rothesay, and to have them educated at a public academy there.

But is there any sufficient grounds for compelling the mother to assent to this arrangement? In the first place, the defender is avowedly about to withdraw for an indefinite period from this country, and he does not now state how his proposal to board and educate the children is to be enforced against him, or how they are to have the benefit of any parental supervision at all-the very place he has selected for them being at the opposite side of Scotland from that in which their mother resides; and, in the second place, although the offer might, if accepted, be the means of providing the children with a higher intellectual training than the pursuer can afford to give them, still they would be deprived of that maternal care which is more valuable than any mere scholastic discipline. Had the pursuer been now leading a profligate life, the case might have been different, but there is no impeachment on her present conduct; on the contrary, she seems to be striving to support herself by honest industry.

On the whole, the defender's offer appears to be put forward more from animosity to the pursuer than from regard to her children, and the Sheriff-Substitute conceives that the pursuer is under no obligation to accept it.

The Sheriff-Substitute has seen no reason to change the views as to the amount and duration of the aliment, or as to the modification of the expenses allowed to the pursuer, which he took occasion to express at considerable length in the note to his Interlocutor of 25th February last, and he accordingly begs leave to refer to that note as explanatory of his present decision on these points.

This Interlocutor was appealed, and having again heard parties' procurators, the Sheriff pronounced the following judgment:—

The Sheriff having made avizandum with the debate, and considered the whole process, for the reasons stated by the Sheriff-Substitute, dismisses the appeal, adheres to the Interlocutor appealed against, and decerns: Finds the pursuer

entitled to additional expenses, and allows the account thereof to be added to the account of expenses found due by the Sheriff-Substitute, and to be audited and reported on under the same remit.

Act. ROBERT MACFARLANE.

Alt. JOHN HOLMES and THOMAS MACROBERT.

19TH JUNE, 1863.

SHERIFF COURT, GLASGOW.

(SHERIFF BELL.)

A. v. B.

Trust, Proof of-1696, c. 5.-A party in a cause was examined as a witness. Held competent to ask him whether a conveyance held by him from the owners of certain properties, in respect of advances, was understood to be a mere security, and that he was to denude on pay

ment.

Disposition-Ex facie, absolute-Security.-The holder of a deed, ex facie absolute, but in security only, not liable to a tradesman for work done on the heritable subjects, on the exclusive employment of those who had the radical right in the subjects.

THIS was an action by a wright and builder in Glasgow, for payment of (1.) £229 1s 2d; (2.) £10 8s 4d; and (3.) of £3 178 6d-the amount of three several accounts for work done and materials furnished by the pursuer for the behoof and benefit and on the account of the defen

der, in connection with certain properties of which it was alleged the defender was heritably vested as absolute proprietor, under deduction of £164 11s paid to account at sundry times. The defence was, a denial that the accounts sued for were incurred for work done and materials furnished by the pursuer for the behoof and benefit and on the account of the defender, or that the defender either employed the pursuer to do the work or is in any way responsible for the same. (2.) A denial that the defender is proprietor of the subjects on which the alleged work was done. (3.) That the pursuer held bills from the proprietors (named) of the subjects, and whom the pursuer accepted all along as his debtors to the extent of upwards of £100 in payment and satisfaction of the balance of said accounts, and that quoad the defender the accounts were discharged. 4. The accounts sued for are overcharged, and on a fair accounting it will be found that the pursuer has been fully paid for any work done. The record, which was made up by condescendence and defences, having been closed, a proof pro ut de jure, et habile modo was allowed to both parties, and to each a conjunct probation.

under his examination as a witness in his proof-in-chief page 2d of said proof, with the objections to said interro tory: Finds, that under the Act 1696, cap. 25, where a r stands in a deed as absolute, it is incompetent in any quest between the granter and grantee to prove that the right t granted only in trust, except by the writ or oath of the gran but Finds, that as in questions between third parties, to wi the said Act does not apply, it is competent to prove qualification of trust pro ut de jure: Finds, that in the sent case, the pursuer had nothing to do with the grantin the defender of the ex facie absolute conveyance referre in the interrogatory, and the pursuer is a third party question as to the true character of said conveyance: T fore, and under reference to the annexed note, repels the jections, and appoints the case to be put to the diet-roll, a new diet of proof may be fixed.

NOTE. In the case of Scott v. Gifin, November 16, 1 the Lord President stated the law on the matter now at as follows-"The Trust Statute of 1696, cap. 25, only to declarations of trust between a truster and a trustee as between these parties, the statute imposes a strict limit of the mode of proof," which shall be competent to any t of another is aware of the limited proof of trust to wh Under that statute, a party constituting a trust in the p is thereby confined, and such limitation occasions no har to him, since it is the result of his own act, and he fores But if any third party has an interest to prove the exis of a trust, notwithstanding an ex facie ownership, the e does not apply to him. It does not constrain him to trust only by adducing a writ which he had not original of the oath of a party whom he had never trusted. means of taking at the constitution of the trust, or by party whose interest it is to unveil the true characte simulate transaction, and to prove the existence of s "notwithstanding an appearance of ownership has an establish this pro ut de jure. The old law, as appess Stair, allowed to all parties a proof of trust pro ut de but the statute 1696, c. 25, limited this proof on all qu between truster and trustee. The limitation, however not extend to questions with third parties." This sta of the law is supported by various decisions. Thus in 16th November, 1827, it was held that "It is compe prove the existence of a trust as between two third pro ut de jure, and that the Act 1696, limiting the declarators of trust by the truster or those in his right proof to the writ or oath of the trustee only applies to the trustee." Again, in Miller, 7th March, 1843, whe defender averred as here that although the disposition favour was ex facie absolute, the subjects had not been him, but had been conveyed merely in security of he had made to the pursuer, the Court held that the was entitled to instruct the character and reality of the action, and that in doing so he was not to be restricted writ or oath of the pursuer. Dickson says broadly, sec. 580, "A person may pro In his work on eviden de jure that an absolute right in his favour is only It will at the same time be observed, that it is only of by the above Interlocutor. Whether the proof whe petency of the admission of parole testimony that is pleted will be sufficient to make out the defender's ave is another matter. In Brown's Supplement voce Trus V., p. 631, the author says "It has been found by late decisions of the Court, that Trusts may be inferred circumstances, and this notwithstanding the Act 1696 decisions have not gone the length that a Trust can be

parole evidence alone; but parole evidence will be n in part, and joined to written evidence or document make out a Trust effectually." This is what the undertakes to do here; and as the pursuer's claim aga is founded on the apparent character of the conveya

In the course of the proof, the defender was examined as a witness, and was asked, Whether the said convey-by ance (a conveyance by the proprietors to the defender in respect of certain advances he had made to them) was understood and agreed to be a mere security for the advances, and was he (the witness) to denude on repay-holds to the subjects for repairs on which the claim ment of said advances? To which it was objected as incompetent, in respect the proposed condition went to qualify by parole the effect of a written document in the witness's favour. The interrogatory and objection were taken to avizandum, and thereafter the Sheriff-Substitute pronounced the following Interlocutor:

pursuer arises, injustice might be done if the defende excluded from a proof at large, to show what in reali nature of his connection with these subjects is.

This Interlocutor was appealed, and after a hearit Archibald Alison pronounced the following judgm Having heard parties' procurators under the pursuer's against the Interlocutor repelling the objections to the qu Having considered the interrogatory put to the defender put to the defender as a witness under his examination

proef-in-chief on page second thereof, and the objections to d interrogatory, adheres to the said Interlocutor for the sons stated by the Sheriff-Substitute, and for this additional ason, that the question here put to the defender himself, as witzess, the holder of the deed ex facie absolute, which is alleged to have been granted in security of a debt merely, not to a third party, so that the proof is not so much by less by the party's own oath, the grantee of the deed facie absolute and the defender in the suit, but reserves all tions as to the effect to be given to the oath of the deler, as emitted in rem suam, and tending to qualify or cut written instrument in his own favour: And on the on put to the witness, N-, which is not objected to, res to the Interlocutor of the Sheriff-Substitute, under sion of all objections to credibility; therefore dismisses

peal

-The party to whom the question objected to is here sad to be put, is the defender in the cause, the holder of der facie absolute, who tenders himself as a witness to that in reality the deed was granted in security of debt It would unquestionably be competent for the purto prove by the defender's oath, as the holder of the writ, real nature of the right with which he was vested, and was in trust or in security of debt only; and by parity of it must be competent for the defender to prove by his ath calcat quantum that the deed, though ex facie absolute, security merely, under reservation of course of all s as to the effect to be given to the oath of the

ader as a witness in his own cause.

he proof having been closed, and parties' procurators the Sheriff-Substitute pronounced the following

locutor:

heard parties' procurators, and resumed considerof the proof, productions, and whole process: Finds that admitted at the debate for the pursuer that he had to establish any ground of action against the defender payment of the third sum concluded for in the summons, of work done and materials furnished in connection property situated in Street-seeing count applicable to said property is dated Feb. 3, at the ex facie absolute conveyance to the property defender's favour is not dated till 19th July following: is that under deduction of the amount of said account, 3178 6d, the pursuer still insists against the defender balance said to be resting owing on the other two set forth in the summons, amounting under said to £74 16s 6d: Finds that during the period the being done, and the materials being furnished, for ce of which the said balance remains, the defender

eted as ex facie absolute proprietor in the properties ection with which the charge is made: Finds, however, pursuer was not employed by the defender to do the make the furnishings, but by J. & J. N—, mentioned ess, who had previously acquired the said properties, pursuer throughout his whole operations believed that J. & J. Nwere the owners, and transacted with alone: Finds that the pursuer's whole account has been by the N-s, with the exception of the above balance, now holds acceptances of the N-s which more than the said balance: Finds that the N-s are not bankrupts rae the proof instructs, and have not asked to be settled by a composition, but were obliged in September, 1861, ve time from their creditors, and have not been able to fall since: Finds that the pursuer having discovered in ber, 1861, that the defender had obtained an ex facie e conveyance to one of said properties on 20th October, and to the other on 19th March, 1859, sues him in this par the said balance, on the ground of his having been , owner of the work done: Finds that the defender Pin defence, inter alia that he was not, and never had solute proprietor, but that he held merely in security in advances to the N-s, in whose favour he was

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to divest as soon as said advances were repaid: that the defender has proved partly scripto by certain productions in No. 9, and also by uncontradicted parole asy, and by the whole facts and circumstances of the at the above averment is consistent with truth, and no further interest in said properties than to the

amount of the advances: Finds that there is no evidence to show that the properties would not have realised the advances, in respect of which they were conveyed to the defender before the pursuer was employed to make alterations or repairs on them, and there is consequently no evidence that the defender was in any way interested in or lucratus by the said operations, however much the reversionary interest of the N-s may have been thereby increased: Finds, in point of law, that there is no authority for holding that a party in the position of the defender is liable to a tradesman for the value of work done upon heritable subjects on the exclusive employment of those who have the radical right in said subjects: Finds it, on the contrary, settled by the case of the heirs of Robert Selby, June 5th, 1795, Mor., p. 13438, that the tradesman in such circumstances has no claim on the fiduciary holder-the rubric of the said case being, "A person holding an heritable subject in trust, and having a right of retention over it for debts owing to him by the proprietor, is not liable for the claims of tradesmen for meliorations made upon it by desire of the latter:" Finds further, and separatim, that the pursuer having taken bills from the N-s as payment in full (see his letter in No. 9,) renewals of these bills, and there of his account, and having granted according to agreement, being no evidence that they will not be ultimately retired by the N-s, is not in titulo to insist against the defender, even although he could otherways competently do so: Therefore, and under reference to the annexed Note, sustains the defences, and assoilzies the defender: Finds the pursuer 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. It was settled by the Interlocutor of 14th August last, adhered to on appeal, that the defender was entitled to prove, pro ut de jure, that the ex facie absolute right in his favour was held by him in trust. It was admitted for the pursuer at the debate that the parole proof showed this, but the fact does not rest upon parole proof alone, as the written adminicles and the whole course of dealing between the defender and the N-s corroborate the oral testimony in the strongest manner. It was laid down in Taylor, 14th Nov., 1833, that a writing, though informal, which acknowledges a trust, may prove it; and in Dingwall, 6th June, 1822, that trust may be proved by the real circumstances of the case(see also M'Laren on Trusts, Vol. I., p. 38). The defender's position being thus ascertained, the case of the Heirs of Robert Selby conclusive of his non-liability to the pursuer. It was there held that tradesmen making repairs on property not being creditores hypothecarii, it would be extending too far the operation of the rule nemo debet locupletare aliena jactura, to apply it to persons who were substantially in the position of heritable creditors, even although their "security was rendered broader by meliorations made at the desire of the proprietor." The same thing had been found in the previous case of Burns, Mor., p. 13,402. The decision mainly relied on by the pursuer was that of Clerk, 20th June, 1850, in which it was held that an ex facie absolute proprietor, with an unrecorded back-bond, being infeft as the vassal in a feu, though he only holds in security, is liable to the superior in all the obligations incumbent on the vassal. But that was a widely different case from the present. The superior is heritably and preferably secured in the subjects for all the prestations exigible by him, and it is impossible for the vassal But here the defender has no real right or lien in the profor the time being to disconnect himself from such obligations. perties, and it is only on the principle of the defender having benefited by the work and furnishings expended that the pursuer can maintain any claim. Now, as the defender is which the subjects afforded was sufficient before the pursuer's not the proprietor, and as, for aught that appears, the security operations, he (the defender) has been in no respect lucratus by them. If the reversionary interest of the pursuer's debtors, the N-s, has been broadened by what the pursuer has done, he has it in his power to adjudge such reversion; but there was direct or fictione juris. The pursuer, therefore, must look to no privity of contract between him and the defender, either the N-s, with whom he has all along dealt, who admit their liability, who are not bankrupt, and whose paper he holds. [This case is under appeal.]

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20TH JUNE, 1863.

SHERIFF COURT, PERTH.

(MR SHERIFF BARCLAY.)

MICHAEL KEEGAN, v. THE SCOTTISH CENTRAL
RAILWAY CO.

Carrier-Damage- Damnum fatale-Mercantile Law
Amendment Act, 19 and 20 Vict., c. 60, sec. 16.
Railway company held liable for loss of goods by acci-
dental fire.

THE circumstances will be found fully detailed in the Sheriff-Substitute's judgment, which is as follows:

The pursuer sues for "£9 5s, being the value of 26 hundredweight, 1 quarter of a hundredweight, and 20 pounds of rags delivered by the pursuer to the defenders at Perth, on or about the 18th day of October, 1862, for conveyance to Bingley, Yorkshire, and there delivered to Messrs Immanuel & Son, but which the defenders have failed to so convey and deliver." It is admitted that certain rags were received by the defenders from the pursuer early in the morning of Saturday, the 18th October last. The rags were contained in bags, and about ten o'clock in the morning were deposited and arranged in two trucks on the loading-bank. At one o'clock the trucks were covered with tarpaulings; at four o'clock these were fixed down; and at seven o'clock in the evening a person in passing discovered that one of the trucks was on fire. The rags were immediately removed and spread on the loading-bank, and the flames extinguished. The fire appears to have commenced on the tier of bags second from the bottom, and to have burned upwards until it reached to the top, where it burned a hole in the tarpauling. A portion of the side or corner of the truck was charred. On the following day (Sunday) several lucifer matches were found on the loading-bank amongst the rags. All these had been ignited at the ends where the inflammable matter had been attached, but not one of them was charred in the wood, and not one was found in an entire state.

It is proved that the rags were carefully picked in a riddle, piece by piece, and then laid aside in a heap, and immediately transferred to the bags, and removed in carts to the railway. It is proved that two of the women engaged in the process of picking are smokers (even when at work with such materials), and they are accustomed to purchase and carry small quantities of lucifers of the ordinary description; but all the workers swear that no matches were or could have been in the rags when picked. However, it is possible that matches-either entire or after being used-may have found their way accidentally into the mass before being bagged. It is proved that lucifers are frequently found in the pockets of men's apparel, but seldom or never in those of the softer sex; and it is proved that the rags forming the consignment were of the feminine gender. It is proved that a strict order exists prohibiting all the railway employees from smoking whilst at work, which it is hoped is explicitly obeyed; but it is proved that farm-servants and others bringing loads to the loading-bank are not under this self-denying ordinance, and are very likely to exercise their liberty. It is proved that the line of the Dundee Railway approaches close to the loading-bank, as the Sheriff has seen, who has inspected the locality, and seen the place where the trucks stood on the occasion of the conflagration. It is proved that locomotives are frequently passing and repassing on the Dundee line close to the loading-bank, though

then in slow motion.

The Mercantile Amendment Act, 19 and 20 Vict., cap. 60 (1856), clause 16, assimilates the law of Scotland to that of England on the matter of carriers being liable for accidental fires. The clause is the following:-"From and after the passing of this Act, all carriers for hire of goods within Scotland shall be liable to make good to the owners of such goods all losses arising from accidental fire while such goods were in the custody or possession of such carriers." Looking closely at this enactment, it does appear to the Substitute (though not pled at the bar) that though the defenders had proved their position, that the fire had originated by matches, which had found their way into the rags in the pursuer's premises before removal to the defenders' station, still the fire would have been accidental, and therefore they are liable under the statute.

Nothing could carry them out of the clause but actual inten tion to burn the rags, or perhaps such very gross carelessness as to amount to culpa of the highest degree on the part of the pursuer or his servants. But were the defence alleged rele vant to elude the statute, the Sheriff is by no means satistied that the defenders have made good their defence.

1st, The Sheriff is satisfied that spontaneous combustion with such materials, and under the whole circumstances, is wholly precluded. On this branch of the case he has taken the opinion of Rector Miller, of the Perth Academy, who has sub

jected the points to actual experiment, and his ably-written opinion is submitted to the parties.

2d, He is not satisfied that there were lucifers in the bags when sent from the pursuer's premises.

3d, He is not satisfied that the lucifers found on the loading bank were in the bags, and occasioned the conflagration. 4th, Had even some lucifers been found amongst the raga charred, or some with their igniting matter still attached, there might have been some suspicion that lucifers had been the instru ments of the fire; but all of these found being discharged on the points, and not one of them charred, establishes their inne cence, and tends to show that they had been exploded "cast aways" either on the loading-bank, or it matters not whether thrown away by the pickers, when incapable of further use # them, or of mischief to any person or place. 5th, The Sheriff is of opinion that the lucifers, with igneou matter, could not have taken fire without friction. Hei doubtful if the tramping down the bags at 10 A.M. could hav inflamed them; but even conceding this, it is impossible reconcile that with the proved fact, at a place so open and public, no symptom of fire was felt or seen from 10 A. 7 P.M., though the very truck was visited and overhauled at o'clock and again at 4 o'clock.

Lastly, The contiguity of the trucks to the line of railwa on which locomotives were frequently going and coming, quite sufficient to account for the fire, by reason of a spar interjected underneath the tarpauling some time during th course of the forenoon. The pursuer is therefore entitled prevail.

The following is the opinion of Dr Miller above ferred to by Dr Barclay:

1. Spontaneous combustion was impossible, as cottonwhether wet or dry-is not liable to it, and worsted is still l combustible than cotton. Spontaneous combustion, says I Gregory, does not take place except in cases where char powder or tow and cotton steeped in oil, as often happens i certain manufactories, are set fire to by the oxidizing age of the atmosphere. See note to Liebig's Chemistry, by P fessor Gregory, page 310. See also Dr Henry's Chemis II. 262, Quart. Journal, v. 367.

2. If the rags had been put into a state of combustion ten o'clock, by being trampled down, the smell must have bee perceptible by one, and a fortiore by four, as although co does not emit much odour when burning, worsted-with whic it was mixed-would have evolved a very powerful one. have proved this by experiment.

3. Although the rags had been mixed with lucifer match I have taken a bundle of cotton rags, the more combustible of the common kind, no trampling would have kindled the the two components, and having tied up a considerable n ber of matches in it, so as to have sometimes even three or fo together, I have trampled it under foot, on a hearthstone. bundle for hours exposed to the oxidizing influence of the a as even to break some of the matches to pieces, and left t without any combustion ensuing.

4. Had there been lucifer matches among the rags, and th fire been occasioned by them, they themselves would have be just as much charred as the rags. I have proved this also! experiment.

the only rational way of accounting for the fire is to supp 5. Under all these circumstances, I respectfully submit th that it was occasioned by a spark from one of the locomotive Alt. MELVILLE JAMESON.

Act. HORACE SKEETE.

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