said contract: And Mr M'Ewen, being a Member of the The creditors present at said meeting, at which the said John M'Ewen appeared for himself, and also represented a number of creditors, "instructed the trustee to make inquiry and report to next meeting as to the state of the claims between the bankrupt and the harbour trustees in connection with the contract between them." The said John M'Ewen, being a member of the Harbour Trust, is bound to protect its interests, and cannot consequently call independently the said trustees legally to account for any balance that may be due the estate; nor can he, being a member of said Trust, defend any action that may be brought against him as trustee on this estate, for any penalties that may be due or exigible from the bankrupt; and he, as a harbour trustee, has an interest adverse to the general body of the creditors on the sequestrated estate. The said John Kennedy M'Intyre craves diligence for exhibition of the minute or other document containing by the eleventh section, nine are declared to be a quo clerk, and by the 27th section it is enacted, that all m By the 42d section notices or citations are to be served of levied or received are to be applied by the trustees to the poses of the act, and to no other purpose whatever. word, the harbour trustees of Rothesay are a statutory ration, having the ordinary corporate powers and liabilit Now it is tritissimi juris that the personal characte powers and liabilities of the individual members are m in and inseparably consolidated with those of the corpor and that as an individual, no member of the corporatio powers or liabilities, and consequently can have no pe interest in the execution of the Trust powers. Doubt is his duty to see that those powers are duly execute this duty is not to be construed so rigidly as to dems the absence of any individual member, a number of t tendance upon all the meetings, there being, notwithst amply sufficient to discharge the duties. In this position there is certainly no legal objection of the corporation being elected a trustee on a ba estate in which the corporation is interested. Thi would operate even where the presence of the cor was necessary to constitute a quorum, or though, But here there office, he should be sine qua non. even an objection founded on inexpediency or uns ness. If from false delicacy a corporator, who is a on a bankrupt estate in which the Harbour Trus terested, should deem it right not to take part in t absent himself without impropriety. He is doubtles ceedings of the corporation relative to that estate, by his oath de fideli to execute the duties of a truste oath is not, and cannot be, so strictly construed as to attendance when he thinks it to be better, as his abs in nowise impede the execution of the Trust or invali procedure. The doctrine relied on by the object because it is his duty to guard the interest of the Trust, as trustee on the bankrupt estate, have an interest ad interest is obviously impracticable, for all the fund the estate, is untenable. A pecuniary or other pat accrue to the Harbour Trust are to be disposed of, an done, only for the purposes of the Trust, and in that quently he is in nowise interested; and the suppositi from an excess of zeal for the welfare of the Harbou the election of Mr M'Ewen to the office of harbour trustee, and also for the contract entered into between the bankrupt and the Harbour Trust. Thereafter, on a hearing before Mr Sheriff Hunter, he he would do injury or detriment to the bankrupt est pronounced the following judgment: The Sheriff having considered the minutes of the meeting of creditors and note of objections, and heard parties thereon, for the reasons stated in the subjoined Note, hereby declares John M'Ewen, accountant, Rothesay, to have been duly elected trustee on the sequestrated estate of John A. Napier, builder, Rothesay, in terms of the statute. NOTE. The nature of the objection stated to the trustee elected is that he has a personal interest adverse to the bank rupt estate; because, being a town councillor of the burgh of Rothesay, he is one of the harbour trustees of Rothesay, with which corporation the bankrupt had entered into a contract, which is in the course of execution. The Sheriff deems that there is here no personal objection which is valid against his election. The Harbour Trust of the burgh of Rothesay is statutory, being constituted by the 1st and 2d Gul. IV., cap. xxxiv. By the first section the provost, magistrates, and the members of the town council of the borough, together with four owners of ships, qualified and elected as directed by the statute, are nominated and appointed trustees for putting into execution and carrying into effect the powers by the act granted to the trustees. The number of the magistrates and councillors being eighteen, the total number of trustees is twenty-two, of whom, not even approximate to probability. These views are in accordance with the doctrine La in the books and sanctioned by the decisions:—“In nary case," says Bell (Com., Vol. II., p. 369), "a cred be a trustee, but where he has a distinct and material adverse to that of the other creditors (not an interes and inconsiderable, but such as may easily sway his he is ineligible." This doctrine has often been confir the case of M'Nair, and may "now be considered pletely settled." This doctrine applies a fortiori in th case, where there is no personal interest whatever. noted case of Paterson, 15th January, 1812, merely e The cases relied on by the objector are not in pai the doctrine that "the Court will refuse to confirmi what are generally called legal objections." Wh on the ground of expediency, though he may not be Sheriff does or does not possess such powers may doubt; but assuming that he does possess them, ther here no reason for their exercise, as there exists no expediency for invalidating the election. The cases there were personal objections sustained are obvious point, by reason of the alleged adverse interest in being altogether devoid of personal interest. Agent for Mr M'Ewen-JOHN WILSON. BRIFF 5TH OCTOBER, 1863. COURT, KIRKCUDBRIGHT. SHERIFFS HECTOR AND DUNBAR). RAE v. HUIGH. father of a child produced by that young woman at the dis tance of nine months from that suspicious intercourse. It is true that there were other parties in the bed-room on the two occasions who do not say that they were aware of, or witnessed the alleged criminal intercourse of the pursuer and defender; but their ignorance of this matter is sufficiently accounted for by the facts-1st, that these meetings were in tion-Proof-Circumstances in which paternity held darkness, and 2d, that those other parties were too much proved. was an action of affiliation, the facts and circumconnected with which are given in the Sheriff's cutors: advised the record, proof, and productions, and parties' procurators, Finds it proved that the defender father of the pursuer's child referred to in the libel: are repels the defences, decerns against the defender of the conclusions of the summons: Finds the purentitled to expenses, as the same shall be taxed by the of this Court, to whom remits the account thereof dged for taxation, and decerns. -The evidence in this case, as too often happens in ses, is conflicting to a degree that may lead some question the credibility of the witnesses on both d certainly there is much in the loose and immoral d intercourse in which these witnesses seem habitually indulged to impair the respectability of their characters weight of their testimony. At the same time, the Substitute thinks that there is enough in the admitted shed facts of the case to sustain the conclusions of It is admitted that on two occasions, viz., the 27th April, 1862, the defender, accompanied by Fan, went into the pursuer's bed-room during the en she was in bed with her fellow-servant, Agnes try. It is proved that he entered on both occasions room window-that, on the first occasion, he was tooling the pursuer on a chest close to the bed vards overheard "conversing in a low tone with being at the time in bed, and he either "at the bed, or in the bed, with her;" and he concluded ork by remaining the greater part of it in the ith the pursuer. It is proved that, on the second the pursuer rose from her bed, at the defender's either for the purpose or on the pretence of getting ink, and remained out of bed in her night clothes for some time. It is proved that the pursuer was of the child libelled on 5th February, 1863, being ths and a few days from the period of the foresaid meetings with the defender. The pursuer swears child was begotten by carnal intercourse with the at these meetings. She accused him of the paternity child was born. It is not alleged that she ever another person, nor that she had carnal intercourse other at the time when the child must have been conad it is not shown nor suggested what interest or ent she could have to commit the double crime of od fraud in their worst form, in order wrongfully to this burden on the defender. facts and circumstances seem, both morally and sufficient to establish the alleged carnal intercourse of Ges on the two occasions of their nocturnal meeting in 1862. The pursuer alone can tell whether the child by begotten; and there does not seem to the Substitute a valid ground for distrusting her evidence point, either on her acknowledged previous lapses tity with another man, nor in the contradiction given by other witnesses to some subordinate parts idence. been maintained that the defender was not solus cum suspecto with the pursuer on either of the foresaid and that therefore more specific and direct evidence intercourse than is here given was requisite. Haward-Substitute is unable to adopt that view. gman, entering a young unmarried woman's bedthe window, at midnight, when she is in bed, on no legitimate errand, and remaining in the same bed during the night, must, on the plainest principles of common sense, be held to have gone and remained an immoral purpose; and he can have cause for onder nor complaint at his being presumed to be the occupied with each other to be very reliable witnesses of the whole conduct and movements of their neighbours. But what they did observe of the pursuer and defender's proceedings on these occasions point clearly and naturally to the inference that carnal intercourse then ensued. The "toozling" on the chest is distinctly sworn to by M'Taggart, and the subsequent "conversation in a low tone" was overheard by both M Taggart and Montgomery while the pursuer and defender were in bed together, or in close proximity to each other, gives a very different version of the defender's conduct from what he describes it, on oath, to have been, and leads to the conclusion that he sought the pursuer's company, and entered her bed on that 23d April, 1862, neither for the purpose of saying his paternoster, nor of procuring bread and milk. In these circumstances, inferring carnal intercourse, the present case is scarcely distinguishable from that of Lyon v. Grant, reported by Tait in Morrison's Supplement, vol. v., page 556, where they may be held to differ, the circumstances of the present case seem more unfavourable to the defender. In Lyon's case the locus was a brothel, when it is not probable, and does not, at all events, appear that Grant, was an intruder, although he abused the opportunity thus afforded to him. The present defender was, on the contrary, an intruder from the first, as he had no legitimate right or reason to enter, and still less to remain in the pursuer's bed-room at that suspicious hour. This subsequent "toozling" of the pursuer exactly corresponds with the "struggling" of the pursuer and defender in Lyon's case. But there is also this distinction between the present and Lyon's case, unfavourable to the present defence, that in the latter there appears to have been only one act of suspicious intercourse, whereas the suspicious visit of the present defender to the pursuer's bed. room, on the 23d April, was repeated, under circumstances equally suspicious, on 27th April, 1862. From Livingstone's account of the meeting on 27th April, which the defender has not ventured to contradict, it is obvious that Livingstone was invited and urged to go there by the defender, and that their object in going was, not as alleged by the defender, to get bread and milk, but "to make up to the girls." According to the evidence of the pursuer and Livingstone, there was time and opportunity for carnal intercourse between the pursuer and defender before Livingstone entered the bed-room. The defender says that he went in about ten minutes before Livingstone, but Livingstone swears that he went in half-an-hour after the defender went. There is a discrepancy here. But with reference to the probable nature of the defender's occupation in the interval, there is nothing extraordinary in the same period of time seeming to him only ten minutes, which appeared to Livingstone, less comfortably situated, fully half-an-hour. Montgomery states the time to have been less than ten minutes; but for reasons to be immediately adverted to, the Steward-Substitute thinks more reliance is to be placed on the pursuer's and Livingstone's evidence on this point than on Montgomery's. Montgomery further alleges that on the week following, the 27th April, 1862, Livingstone and Evans entered, and were sometime in the pursuer's bed-room at night, after she and Montgomery had gone to bed. This statement, if corroborated, or not disproved, would have been important, as the date of that alleged meeting would have corresponded more nearly with an exact nine months gestation than either the 23d or 27th April, 1862, does. But the averment rests exclusively on the evidence of Montgomery, and it is expressly contradicted by the concurrent testimony of the pursuer, Livingstone and Evans. It must therefore be regarded as an erroneous statement; and the Steward-Substitute has less hesitation in holding it to be disproved, that with reference to Montgomery's examination, her retraction of an important part of her deposi tion, her suspicious and indecent familiarity with the defender, and her correspondence with him immediately previous and relative to her deposition, there are strong grounds for believ ing that her testimony is not altogether untainted and free from personal bias. L* With regard to that correspondence of the defender with M'Taggart and Montgomery, it is evident that it originated in the defender's great anxiety to escape the consequences of his indiscretion on the 23d and 27th April, 1862, and that while exhorting in his correspondence in a general way to speak the truth, he took rather too much pains, and gave too significant hints, to lead them to adopt his version of the facts on which the parties were at issue and the case depended. There is one discrepancy between the pursuer's statements on record and her evidence, to which, though not immaterial, no reference was made at the debate. In article four of the condescendence it is averred that the carnal connection of the parties on both the occasions libelled took place in the pursuer's bed. The pursuer swears (Pur. Proof, p. 2), that on the second of these occasions "the defender had carnal connection with me on the top of a chest." Where the proof of that act of intercourse is merely circumstantial, it appears at first extraordinary that the pursuer should have varied in her description of the locus. But it may fairly be stated in explanation first, that the chest is proved to have been so close to the bed, that both Montgomery and M'Taggart, when in the bed, and hearing the defender and pursuer conversing in a low voice together beside them, were unable to say whether the defender was then in the bed or on the chest beside it; and second, where the fact of carnal intercourse has been reasonably established as having occurred at the time libelled, the proof as to the locus seems sufficiently instructive of the averments in the record, when it is both alleged in the record and proved that the connection took place in the pursuer's bed-room. A discrepancy of a more serious nature, where the pursuer of a similar action erroneously described in the record the date of her child's birth, was not held by the Supreme Court a fatal irregularity, the facts as to the actual birth of a child in the next month to the one libelled and the paternity being clearly established. To this Interlocutor the Sheriff, on appeal, adhered. Act. R. BROATCH. Alt. D. JENKINS. 6TH OCTOBER, 1863. SHERIFF COURT, GLASGOW. (SHERIFFS SIR A. ALISON AND STRATHERN.) JAMES M'OUAT v. DOUGALD REEVIE. Scottish Measure-Imperial Measure-Acts 5 Geo. IV., c. 74; and 5 & 6 Will. IV., c. 63.-A quantity of potatoes was sold by the Scotch acre. In an action for payment, the contract held to have been illegal as contrary to statute, and dismissed with expenses. THIS action was raised for the recovery of £124 13s 11d, the price of six acres, thirty-seven poles, and seventeen square yards of growing potatoes, and 2s 6d for tolls, under deduction of £20 paid to account, the balance being £104 16s 5d. The record having been closed, and procurators heard, the Sheriff-Substitute pronounced the following Interlocutor: Having heard parties' procurators on the closed record, and made avizandum, Finds that the action referred to in the defender's first preliminary plea was dismissed on payment of expenses on 10th January last, and these expenses were paid on the 14th of that month: Finds that the present action, although raised and executed by the 12th, was not called in Court till 20th January, and was not a depending process when the preliminary plea was stated; therefore repels said plea: Finds it stated and admitted that the summary process, which was instituted in the Sheriff Court of Dumbartonshire, concluded for warrant to dig and sell the potatoes in question, and for consignation of the proceeds, which having been done, the process was exhausted; and that the ordinary action which now depends in the same Court at the instance of the defender Reevie against the pursuer M'Ouat and the clerk of said Court, relates to the ultimate disposal of the sum signed in the summary process, and for damages a M'Ouat, so that, although directly contingent to, that is not identical with the conclusions of the present: Th repels the defender's second preliminary plea, and, merits, Finds it averred by the pursuer that the pota question-measuring six acres, thirty-seven poles, and teen square yards imperial standard measure-were, tember last, sold to the defender, undug, at the agr price of £20 per acre, to be paid in sums of £20 duri digging, and in proportion to the quantities dug, and o potatoes the defender took partial delivery, and paid account, leaving still due the balance of £104 16s 5d together with 28 6d of tolls expended by the pursuer in the potatoes for the defender so far as removed b Finds it pled in defence that the sale libelled was the Scotch, and not by the imperial acre, and that, bei an illegal sale, the pursuer could only claim payment ing to the worth and value; but as the potatoes a under guarantee that, excepting ten drills or there were of good, or fine, or first-rate quality, and having out of bad or inferior quality; farther, that while th der's servants were in the course of digging the pote pursuer, without pretext or intimation, and without a cause, and without warrant or authority, suddenly the work-people off the ground, and refused to allow remove the potatoes dug, or to continue digging, loss and damage followed; therefore the defender pla not liable in payment of the sums claimed: Finds, law, that as by the Statute 5 and 6 Will. IV., ef sales, by any denomination of measure other tha perial measures, thereby, and by the Act 5 Geo. fixed, involve the contracting parties in penalties, prohibited, and as express guarantee or warrandio good, fine, or first-rate quality of the potatoes soll is and as the quality is said to have turned out other finally, as the pursuer is alleged to have stopped the digging and removal of the potatoes without cause, i several grounds of defence are irrelevant: Finds pursuer having averred a sale by the imperial stan sure, and as it is not to be presumed that the partie into an illegal contract, the onus probandi is on the to prove his defence in this and also in the othe alleged: Therefore, before answer, allows the defer i that the sale in question was entered into by the Sc that the potatoes turned out contrary to expres bad; and that the pursuer, without just cause, sta defender in completing the digging: Allows the respectively against witnesses and havers, and com conjunct proof, grants diligence at the instance any of the depute-clerks of Court to take the de havers, to receive productions and certify exla reported forthwith, and appoints the case to be e Court day in vacation, that a diet may be fixed for proceeding. regulated by local or customary measure, are not NOTE. All contracts which, in gremio of them illegal. For example, in cases where rents were to mined by Scotch instead of imperial measure, the were found valid, Henry v. M'Ewan, 25th May Shaw, 572, affirmed 9th August, 1834; and the re Mair v. Miller, 3d February, 1860, 4 Journal of dence, p. 198. But sales made by any other than the imperia measure not only entail penalty by statute, but in c of law are prohibited. In administration by the provisions of the Weights and Measures Acts since th 6 Will. IV. passed, have been invariably enforced may be gathered from the opinions of the Judges in List, 1st December, 1845, 2 Brown's Rep., 596; Alla 1844, 2 Brown, 294. But, as the illegality of the now in question is alleged by the defender, and bein to the pursuer's statement, the former must sup fence. The allegation of warrandice, and the b together with the averment that the pursuer stopped the defender while in the course of potatoes, are matters of which it is plain the bard lies on the defender, because on them he raises al the pursuer. The Sheriff-Substitute feels constrained to call th of parties to the anomalous position in which they seres by litigating concerning the same facts, though cferent conclusious, in separate counties. Besides the of obtaining conflicting judgments, the parties must incur expense of double proofs, which could have altogether vided by him who was last in Court selecting the tion first appealed to. This was perfectly competent be principle of reconvention; and it would be desirable process should be sisted in either Court till the case, first ed, was decided, otherwise, of consent of parties, jurismight be prorogated, and a remit made ob contingenof the one case for conjunction with the others. Interlocutor was appealed, and after a hearing Biff pronounced the following judgment: heard parties' procurators under the defender's pon the Interlocutor appealed against, and whole linds that the Interlocutor is appealed against only estion of the onus probandi as to the agreement, and ty on whom it lies: Finds that the presumption of law the bargain between the parties was according to the lare, and in dubio as an agreement between them is to have been entered into, the Court must presume according to the legal standard measure: Finds of proving the contrary lies on the defender; adheres to the Interlocutor complained of, and disappeal. -The presumption of law is, omne rite et solemniter when anything else is alleged when the agreement ed, it must be proved by the party alleging it. er's allegation here is, that a certain quantity of was sold at £20 per acre. The defender does not some agreement was entered into, but alleges the was per the "old Scotch acre;" and this the pursuer The presumption is in favour of the pursuer, and the proving the allegation lies on the defender, the legal a being that the law by acre means the imperial proceeding with this proof, it was moved that should be sisted, and the Sheriff-Substitute accordingly. This Interlocutor was appealed, Sheriff recalled the Interlocutor sisting, and if the case to proceed by the following judgment: ing considered the Interlocutor appealed against, and agent for the pursuer-no appearance having been the defender-and having reviewed the process, Finds are the Interlocutor under review was pronounced, the action of damages, at the instance of the present before the Sheriff Court at Dumbarton, has been W the Sheriff there, so that, as matters stand, both the in the Sheriff Court at Dumbarton, and the present have been sisted, which is a state of matters that ly cannot be allowed to continue: Finds that the assigned by the Sheriff of Dumbartonshire forsisting the in that Court, appeared to be perfectly satisfactory, action in this Court is the direct and leading action contract price of the potatoes, whereas the action in mbarton Court is for an illiquid claim for damages out of the contract, and also that the process in this originally the leading process, although the first was withdrawn in consequence of a formal error, and Sent action, which came in lieu of the former, though tent in point of date to the one in Dumbartonshire, is ach more advanced stage than the Dumbarton one: are alters the Interlocutor complained of, and recalls of this process, and remits to the Sheriff-Substitute ed farther in the cause as to him may seem just: ends to the defender to prove his alleged counter this action, and reserves his claim for any excess may be established above the sum claimed and found the pursuer in this action. was then led, and parties' procurators heard, ie Sheriff-Substitute pronounced the following In 3 heard parties' procurators on the concluded proof le canse, Finds it instructed that in September, 1859, er sold the defender a parcel of potatoes then on the ground on his farm of Ardmore, Cardross Parish, Dumbartonshire, at the price of £20 per acre, a portion whereof the defender soon afterwards dug and took delivery of, and he paid £20 to account of the price, but the greater part of the potatoes were left undug: Finds that the pursuer avers said sale was made by the imperial standard acre, and he demands payment for the quantity of potatoes libelled, on that medium, but the defender, on the other hand, alleges that the sale was by the Scotch acre: Finds it proved that the sale was by the Scotch acre, and it was entered into without reference to the proportion which the imperial acre bore to it: Finds that under the provisions of the Statute 5 Geo. IV., c. 74, sec. 15, as amended by the Act 5 and 6 Will. IV., c. 63, sec. 21, the contract between the parties so made was null and void; and the action rests solely on said contract; therefore sustains the defence that the sale was void, and assoilzies the defender from the conclusions of the summons as so laid: Finds the pursuer liable in expenses, allows an account thereof to be lodged, and remits the same to the auditor to tax and report, and decerns. NOTE. The nullity of the contract is the only plea in defence which the Sheriff-Substitute has found it necessary to dispose of; in all other respects the rights of parties, quoad said potatoes, remain unaffected. The proof adduced instructs that the contract between the parties was by the Scotch acre and not by the imperial standard acre. In the first place, it is proved that sales in Cardross Parish are usually made by the Scotch acre; in the next place, the potatoes were measured by the witness Buchanan, under the pursuers' instructions, according to that acre; in the third place, the original demand made for payment through the pursuer's agent, Mr Hislop, was calculated by it; in the fourth place, the original action instituted for payment of the price, but afterwards abandoned, libelled the Scotch as the contract acre; in the fifth place, the price claimed was the current value of the potatoes by that acre; and, last of all, the parties themselves, together with the witness Houston, concur in stating that the bargain was concluded on that understanding. Indeed, the pursuer's evidence is decisive of the point, he depones-"I understand that there is a difference of about a-fifth between the Scotch and imperial acre; when I was seeking £22 an acre for the potatoes, what I meant and understood was £22 the Scotch acre. When the defender said he would give me £20 an acre, I understood him to refer to the Scotch acre also. I understood that the transaction between us was closed on the footing that I was to receive £22 the Scotch acre for my potatoes." A sale of this kind is null. The second section of the Act 5 Geo. IV., c. 74, provides that the acre of land shall contain 4840 square yards of the standard prescribed by the preceding section. It is enacted that, after the 8th of May, of the United Kingdom shall be deemed to be made and had 1825, all contracts, bargains, sales, and dealings in any part according to the standard weights and measures ascertained by the Act; and in all cases where any special agreement shall be made with reference to local measure, it is provided that the ratio or proportion which it bears to the standard shall be it shall be null and void. When the parties agreed, no such expressed, declared, and specified in the agreement, otherwise proportion was either expressed, declared, or specified, so that, have enforced his contract. But the Statute 5 and 6 Will. under the comparatively mild provision, the pursuer could not IV., c. 63, which, although it repeats the 4 and 5 Will. IV., c. 49, simply varies and amends the 5 Geo. IV., c. 74, makes more stringent provisions. By section 21st not only is the but it is declared that " use of local weights and measures prohibited under penalties, 'any contract, bargain, or sale made by any such weights or measures shall be wholly void." these enactments; and in the analogous case, Alexander v. Accordingly, effect has been given in questions of sale to M'Gregor, 24th June, 1845, 7 Sess. cases, 915, a seller of potatoes by the Scotch acre failed in an effort to enforce the 8TH OCTOBER, 1863. SHERIFF COURT, GLASGOW. (SHERIFFS SIR A. ALISON AND STRATHERN.} THE POLICE AND STATUTE COMMITTEE OF THE TOWN COUNCIL OF THE CITY OF GLASGOW and JOHN LANG, Writer in Glasgow, their Clerk, v. ANDREW MENZIES. Police-Damages-Master and Servant.-The Police Committee of the Town Council of Glasgow raised an action against an omnibus proprietor, one of whose vehicles was negligently allowed to run against and destroy a cluster lamp erected in an open space at the junction of two streets.-Held, that the owner was liable for the negligence of his servant—that the lamp was in a proper place, sufficiently protected, and damages awarded. In June, 1860, one of the defender's omnibuses, when driving along Woodside Crescent or Sauchiehall Street, came in contact with a lamp-post, placed at the junction of the Crescent with Sauchiehall Street, and overturned it, thereby destroying the post and lamps, and this action of damages was raised, in which £20 was concluded for. The defence was a denial of liability and of the averments in the summons. The record was then closed, and parties' procurators having been heard, the Sheriff-Substitute pronounced the following Interlocutor:- Having heard parties' procurators on the concluded proof and whole cause, Finds that, on the afternoon of Monday, 25th June, 1860, the defender's omnibus, drawn by three horses abreast, and which then plied within the city of Glasgow, between Bridgeton and Woodside Crescent, reached the latter terminus, at the junction of Scotland and Lynedoch Streets, about 20 minutes to 6 o'clock, and was there turned and left stationary to receive passengers, on the view of starting on a return trip in five minutes thereafter: Finds that the omnibus was in charge of a driver and a guard, both in the defender's service, and on turning the carriage the driver threw the horses' reins over the handle of the drag, which was placed at his feet, and descended to examine a hoof of one of the horses, which immediately before had shown symptoms of lameness, and the guard stood by, near the horses' heads, while the driver was so employed: Finds that, on discovering nothing wrong with the animal, the driver proceeded to ascend the driving seat, and for that purpose had put his foot on the lowest step of the omnibus-which, from recent rain, was wet-but he slipped, and dropped to the ground, at which instant the horses started off quicker than usual, apparently startled, and ran through Scotland Street into Woodside Crescent, and along the declivity there towards Charing Cross in Sauchiehall Street: Finds that, on the horses thus setting off, the driver caught the off-side traces, and stretched up his hand to seize the reins, and so to control the animals; but in this he failed, and was almost immediately thrown to the ground, the omnibus passing over him; the guard, however, continued running beside the horses, endeavouring, ineffectually, to catch them: Finds that the uncontrolled horses and omnibus turned from the said Crescent quickly into Sauchiehall Street, and, on rounding the corner, came violently in contact with, and overthrew, a large police cluster lamp pillar and lamps, which had been erected in the centre of said street at that point, whereby both pillar and lamps were broken, and damage done to the extent of £20-the sum now sued for: Finds that the pillar fell on the horse on the right hand side of the omnibus and killed it, the other horses were wounded, the omnibus itself was much broken in front, and the driver, who was run over, expired in the Infirmary, from the injuries he sustained, a few days afterwards: Finds that the said pillar lamp so overthrown had been put up by the pursuers in the autumn of 1857, under the provisions of the Glasgow Police Acts, 6th and 7th Vict., c. 99, and 9th and 10th Vict., c. 289, as is alleged in the summons: Finds that the pillar was he and made of cast-iron, it was 14 feet high, and stood o octagonal stone building of the height of 2 feet, which a diameter at the bottom of 3 feet 2 inches, but at the narrowed to 2 feet, and weighed about two tons; the was attached to the stone base by five iron prougs, from to five inches long; inserted in corresponding holes abou inches from the outer edge, wherein lead had been ru batted on one side; from the neck of the pillar, and a height of about 12 feet from the street, four branches pro about four feet horizontally, each containing lamps, a being from 13 to 14 cwt.: Finds that the omnibus wa the apex was a fifth lamp-the weight of pillar and bra eight to ten feet wide, and the height at the back driver's seat measured from 11 to 13 feet: Finds that, set on the stone base, and having regard to its weig lamp was not as securely erected as was prudent or sal according to its proved dimensions, the lamp brauches str into the street several inches beyond the base, and were by calculated to obstruct the free passage of large ca on either side, and being unfenced, and the site in one principal thoroughfares, the lamp was not unattende danger: Finds, that by the 162d section of the first-me statute, which regulates the matter, the pursuers were n and empowered to make provision for lighting in a manner the whole streets of the city, and to provide and maintain such lamps, lamp posts, and lamp iroes, might be necessary; and they were authorised to ar same to be fixed, either (1) on the sides of the ca streets, and roads; or (2) on the curbstones of the pa or footways; or (3) at the rails, or on the walls of i or (4) on the sides of the streets, or roads-the pars demnifying the proprietors or possessors of the bu any damage thereby done: Finds that by section i said statute it is enacted that if any person shouli, negligence or accident, break any lamp set up in aa streets, etc., and should not, on demand, make satisfa the injury or damage, then, on complaint made to an magistrates of the city, or the Sheriff of the county, a is given to award such sum of money as the damag should amount to, not exceeding £5; and in these stances finds, in point of law, and in the first place, defender's servants acted negligently on the occ question in suffering the omnibus horses to stand at minus in Scotland Street without having the reins se hand, and the horses under complete control, and sequence allowing the animals to start with the om proceed towards, and come in contact with, said lam upset and break it: But finds, in the second place, lamp was put up contrary to the provisions of thes which the pursuers found, in the centre of a street on the side; and, as erected, it was unfenced, and in either to protect the lamp itself against injury fro with passing carriages, or to keep carriages at all of it and exempt from damage: Finds that by th culpability the occurrence libelled was the result, ca to both parties, the measure of loss being greate defender's side; and, therefore, agreeably to the ord in such cases, neither party is entitled to recover Therefore, sustains the defences, and assoilzies the from the conclusion of the action: Finds no expe and decerns. NOTE. The manner in which the lamp in que erected, and unfenced as it is proved to have been, led to absolvitor in the absence of every other cons But uniting that view of the case with the unauth chosen, the Sheriff-Substitute has come to be of o the pursuers have no right to recover. Undoub negligence of the defender's servants, and for whi them too fatally paid the forfeit, was the immedia the occurrence; but the pursuers themselves had primary and a long-standing cause, and without not improbable the defender's horses might have be up unharmed, and causing no injury. The fa greater sum than £5 is recoverable as reparation fr negligently damaging a lamp erected under the staid shows that an elegant and ornamental structure, su destroyed, was not in contemplation when the A But, as the pursuers saw fit, with commendable tat the streets with lamps of the description in questi both their interest and duty to have surrounded t |