pillars or pall stones, without which the skilled witnesses mined are of opinion the erection was unsafe. It has been n that cluster lamps in the thoroughfares of London, and hare of smaller dimensions, are suitably surrounded with ee of the nature referred to, and might have furnished an ple of necessary precaution.

penses have not been awarded, as both parties have been ontributors to the casualty complained of.

Interlocutor was appealed, and after a hearing, Sheriff pronounced the following judgment:ving heard parties' procurators under their mutual upon the Interlocutor appealed against, and made aviwith the debate and advised the proof and whole prods that the present action is brought for payment of the damages done to a lamp, pillar, and lamps erected pursuers, the Police and Statute Labour Committee of y of Glasgow, at the crossing of Woodside Crescent and ehall Street, by an omnibus belonging to the defender g in contact with it, and knocking down the same, to the culpable negligence and carelessness of those in the omnibus, and for whom the defender is responFinds it proved that the collision took place between ax o'clock on a summer's afternoon in June, 1860, the lamp pillar was overthrown by the omnibus contact with it: Finds that the omnibus, which was three horses abreast, was in charge of a driver and and that after the carriage had been turned at the ef Scotland Street and Lynedoch Street, with a view on the return trip from Woodside Crescent to the driver threw the horses' reins over the handle ag, which was placed at his feet on the box, and from the coach box to examine the hoof of one of es, and that the guard stood by, near the horses' hile the driver was so engaged, but neither he nor he held the reins or had the horses under control driver let them go: Finds that, on discovering ng with the animal's foot, the driver proceeded to box, and for that purpose had put his foot on the mnibus, but having missed his footing he slipped ground, and at that instant the horses started nagh Scotland Street into Woodside Crescent, and declivity there leading down to Charing Cross, in Street, and ran against the pillar lamp, which was w, and in its fall killed the horse on the right hand emnibus: Finds that, on the horses running off, the Baght hold of the off-side traces, and stretched up his get hold of the reins so as to control the animals; but failed, and was thrown to the ground, the wheel of passing over him, and he died a few days after

the fault of those in charge of it, and for whom he is liable Therefore sustains the appeal for the pursuers, and alters the Interlocutor appealed against, repels the defences, and decerns against the defender for the sum of fifteen pounds sterling, as the value of the pillar and lamp in question, with interest as libelled: Finds the pursuers entitled to expenses, of which appoints an account to be given in, and remits to the auditor to tax the same and report, and dismisses the appeal for the defender, and decerns.

NOTE. This is the second case which the Sheriff has had to decide of carriages running against large pillars for public lamps in Glasgow, one at the top of Buchanan Street, and the present one near Charing Cross, at Woodside Crescent. Though the Sheriff does not think the absence of small stone pillars at the four corners of the stone base of such pillars is any defence against this action, yet he would recommend the Police Committee to erect such small pillars as is done at similar erections in London, such as those at the crossing of Regent Street with Pall Mall, Piccadilly, and Oxford Street in London, both to form an obstacle to horses or carriages coming in contact with the pillar, and to furnish a place of refuge for foot passengers, which is the principal object for such erections in the London lamp pillars of this description. The defender pleads that the Police Committee are not entitled to erect lamp pillars in the middle of a crossing of streets by the late Police Act, although such erections are not prohibited by the Act. As the Police Committee are empowered generally to erect lamps, there is no limitation of their choice of a spot for them by statute in the public streets, and at common law the only limitation is that such choice shall not be danger. ous or inconvenient to the public, which cannot be said to have been the case here. The clauses founded on by the SheriffSubstitute relate to lamps put down on foot pavements, which are placed at the expense of the pursuers, and maintained by them; but they do not apply to the public streets, which are the property of the Police Committee, and in regard to them no power of erection was necessary. In regard to the latter there is no statutory restriction, and the case as to erections by them there thus rests on the common law. Unless lamp pillars were allowed to be put up in the centre of such crossings as those where the lamp pillar in question was placed, the large space in the centre would be dark at night, to the manifest danger both to foot passengers and carriages passing at the time. Alt. BROWN & DUNLOP.

Act. J. L. LANG.

15TH OCTOBER, 1863.

of the vehicle had taken no steps whatever to hold reins when the driver left the coach box to exhorse's foot, nor was any one appointed to that ds that the collision took place in a broad space was plenty of room for the omnibus to pass on of the lamp pillar, there being forty feet on each lamp pillar: Finds it proved that the cast-iron lamp od in the middle of an octangular stone-case, 3 feet ter and 2 feet high, and was the property of the missioners, who had erected it; and the pillar itself feet high, and strongly fastened to the stone base: proved that the pillar and lamp were entirely and that the damage done may be fairly estimated pounds: Finds it proved that the driver of the omniexperienced and skilful driver, and that the guard possibly could to stop the horses after they had but no one was at the horses' heads or had the hand when they started off, but the reins were and the handle of the drag, which was placed in the the driver's foot-board, so that neither the driver nor ald reach up to them after the horses ran off, and ing they could catch at was the traces: Finds that Commissioners had done nothing contrary to the or the common law, in putting up the lamp pillar where it was erected, having plenty of room to all sides; but that, on the contrary, it was a proper to take in order to protect foot passengers and crossing at the spot where it was placed: Finds ender is in law responsible for the loss and damage oned by the omnibus belonging to him, through

(SHERIFFS HECTOR AND DUNBAR.)

CURRUTHERS & BIGGAR v. DUDGEON.

Contract-Sale-Error calculi.—On a sale and purchase of sheep, an error was committed, and timeously intimated, in the gross sum to be paid, the price per head and the number being correct. In an action for damages, or the fulfilment of the bargain-Held, that there was no sale.

THE question in this case was whether a lot of lambs, sold by the respondent to the petitioners, had been sold The petitioners in one lot, or at so much per head. claimed delivery or damages on the assumption that the bargain was a sale in one lot, and for a slump sum; the respondent resisted the action on the ground that there was no consensus, and that there was error calculi.

The Steward-Substitute (Dunbar) pronounced the following Interlocutor, which was appealed, but adhered to by Mr Sheriff Hector:

Having advised the record, proof, and productions, and heard parties' procurators, Finds that, on 25th September 1862, the petitioners went to Woodhead, the respondent's residence, for the purpose of buying ninety-six cross-bred lambs

erways, and it is believed that both parents were born in land. They deserted the pauper child in Dundee in July 2, and they have not since been heard of, nor can their sion of any settlement be ascertained, though full investion has been made. It was discovered, however, and is ted, that the pauper himself was born in the parish of rk, and Dundee, in consequence, intimated on 28th July, 2, a claim of relief against Falkirk.

of opinion that this claim is well founded, and falls to sed. It is contended for Falkirk that a child necesfollows the settlement of its parents during their lifethat, as they must have a settlement somewhere, of discovering such settlement lies upon the parish e deserted child is found and first becomes a burden, upon the parish against which no liability has yet seeing that it is not the parish of the parent's eat. To this the parish of Dundee answers that erine maintained for Falkirk holds good only where rettal settlement can be ascertained, and that where the case of Hay v. Skene, 13th June, 1850, estabIn opposite rule, seeing that it was there found that band-an Englishman-deserted his wife without Ly residential settlement in Scotland the parish burdened by the desertion was entitled to demand aper should be taken off their hands by the parish maiden settlement, being that of her birth, leaving ar parish to operate its relief against the parish of the #settlement as it best might.

aly difference between Hay's case and the present is, the cre the pauper was a deserted wife, and in the #is a deserted child; and this is not a difference which the principle of the decision. Lord Medwyn said "Where no other settlement can be discovered, the ttlement must be held to be the parish of her birth. efficient for the parish of Edinburgh to point out of the woman's birth, in order to be entitled to at of the temporary relief afforded her. The prethat her husband had a settlement, but it is not ht that this poor woman is to find it out. The parish of Edinburgh) has made every inquiry required from him. The burden must therefore arish of her birth." The Lord Justice-Clerk and We took precisely the same view. Lord Cockburn "Easy be true after all that this deserter really has mant in England, and that in virtue of it that place is maintain his wife. But on whom does the law Varden of ascertaining all this? I am inclined to the parish against which the woman's last known at creates a prima facie obligation. It is the duty of e either to fulfil its obligation or to relieve itself from ferring it on some other parish. The authorities of where the pauper was accidentally found having dber last known settlement, are not bound to wer all the earth for another possible one."

case of Gibson, June 10, 1854, certain observations the Lord President which bear precisely on the point e. His Lordship said:-"In the case of pupil general rule is that their settlement is regulated their parents, and that, in the event of their beled to parochial relief, the parish of the parents' tit it be known, is that from which the relief is to be the parish in which the children may have been ugh if the parents be not known, or have no known the parishes in which the children were severally y be resorted to."

op, in like manner, in commenting on the earlier nicuick, March 3, 1813, in his work on the Poor 134, states the result of that decision to be "that the original settlement of married women or of at emancipated be said to be suspended, notwiththe husband or parent having no settlement, yet in parish of such final or original settlement is bound them, so long as the settlement of the husband or Pans unknown." The same point was referred to year 1859, under a joint memorial by the Inspectors the City Parish of Glasgow, and of the Barony R. I then formed and gave effect to the same opinion ve anounced now. (See the Poor Law Magazine, 1) ut, however, to be denied that the contention of leaves at first sight considerable additional strength

from the decision in the recent case of M'Crorie, 7th March, 1862 (Poor Law Magazine, vol. iv., p. 421). This decision, which was pronounced by the whole Court, has generally been thought to be-and the Lord Justice-Clerk expressly stated that, in his opinion, it was-irreconcilable with the decision in the above case of Hay. On attentive consideration, however, it will be found that the decision in the one case does not necessarily neutralise that of the other. The facts on which the two judgments were founded differed materially, and the circumstances of M'Crorie's case was very special. The rubric is--" A Scotchwoman, the wife of an able-bodied Irish labourer, residing with his family in this country, but without having acquired a settlement, became insane, and was sent to an asylum by the parish where lunacy and destitution occurred -Held that the parish had no claim of relief against the parish in which the lunatic was born." The Sheritis, before whom the case came in the first instance, and whose judgment was substantially affirmed, distinctly explained that the fact of the husband's desertion, and of his residence in England being unknown, were two particulars in the case of Hay which essentially distinguished it from that of M'Crorie, where there was no desertion, and no unknown residence, and where, in consequence, a remedy was open which did not exist in the prior case-namely, that if the husband was a pauper, in respect of his inability to maintain his wife, he could be removed, under the provisions of the 77th section of the Poor Law Act, to Ireland along with her; and that if he was ablebodied, and not chargeable to the Scotch parish in which he resided, then no obligation of support lay upon the parish to which the wife had been removed. This view was the foundation of the rationes decidendi of several of the Judges. Lords Mackenzie and Jerviswoode-after stating the general rule to be that a wife on her marriage takes the settlement of her husband, and that if, through her supervening insanity, her husband shall become entitled to parochial relief, the claim must be against the place of his settlement-go on to say, "But we think it necessary to add that we do not hold the rule to which we have referred to be so universal and unbending in its application as to have the absolute effect, in every state of circumstances, of excluding all claim for relief, pending the marriage, by the wife against the parish of her maiden settlement. The decision in the case of Hay v. Skene, June 13, 1850, is an instance where such a claim was sustained, although no allegation was there made that the marriage of the pauper had been actually dissolved by the death of her husband, or otherwise. Other cases may be figured, with which we think it unnecessary here to deal, in which the principle recognised in that case ought to be applied. But we are satisfied that, in the present instance, where the husband of the pauper is an Irishman, resident within Scotland, the parish of Kilwinning has failed to show ground to support the liability which is sought to be attached in this action to the parish of Monkton; and it does not appear to us that the Court is called upon, or that it would be expedient now to decide any further question." In like manner Lord Cowan says "I am not satisfied that there is sound principle, and there is certainly no express authority for holding the rule as to the loss of the wife's maiden settlement by marriage so inflexible as to lead to such a result as must leave her without any settlement at all. It seems to me that the case of Hay v. Skene is directly adverse to that view, and I am not prepared to disregard so entirely the authority of that decision. The present case, however, is not distinguished by peculiarities sufficient to exclude the operation of the general rule. husband is an Irishman by birth; he is an able-bodied man, perfectly capable of supporting his family, and is not to be treated as a pauper. In this state of the facts before us, I desire to state emphatically my opinion on this point." It will, in like manner, be found that neither the Lord President nor any of the other Judges, with the single exception of the Lord Justice - Clerk, say a single word to discredit the authority of Hay's case. On the contrary, they saved the authority of Hay's case, by finding in M'Crorie's that the relief pursued for against the parish of the wife's birth could not be judicially recognised, because there had been no desertion, the husband being in Scotland to answer for himself; and that, if he was a pauper, both he and his wife were removable to Ireland, and that if he was not, the claim for his wife's support lay against him.

The

Now, in the present instance the circumstances are not only quite different from those which occurred in M'Crorie, but are

a fortiori of those which occurred in Hay. The pauper infant has substantially no parents, for their existence cannot be traced, and the maxim of the Roman law applies, that de non existentibus et non apparentibus eadem est ratio. Neither is there any possibility of removing him to Ireland, for his father has not only not become chargeable to any Scotch parish, but is not known to be in Scotland at all, and is believed not to be a Scotchman, while the pauper himself is a native of this country. If he cannot be removed, and if no trace can be found of his parents' settlement, does he not belong to the parish of his own birth? By the 70th sec. of the Act, the parish where a poor person is found destitute is bound to afford interim maintenance only "until the parish to which such poor person belongs be ascertained." It is true that a pauper child cannot be said to belong to the parish of his own birth so long as he can come on the parish of the "actual settlement" of his father, which, as was found in the case of Barbour (House of Lords, M'Queen's Reports, 1st May, 1854), is the settlement of all the infant children. But where the father has no "actual settlement" that can be discovered, and where the child has been virtually forisfamiliated by the desertion of both father and mother, the case is different. He is then a pauper in his own right; and his only available claim is against the parish of his own birth, reserving to it its recourse against his parents, should they ever cast up. For these reasons I propose, as presently advised, to find the party, Beeby, as Inspector of Poor for the parish of Falkirk, liable in relief of the support of the pauper to the party, Jack, as Inspector of Poor of the parish of Dundee. But considering the nicety of the question at issue, I am not disposed to find expenses due to or by either party.

For Dundee-WM. HAY, Dundee.
For Falkirk-WILKIE & COWAN, Glasgow.

17TH OCTOBER, 1863.

SHERIFF COURT, KINCARDINE-STONEHAVEN.

(SHERIFFS A. B. SHAND AND WILSON.) GEORGE DUNCAN v. JAMES KEITH, Jun. Bill-Guarantor-Negotiation.-A Bill was guaranteed by letter addressed to the drawer, but afterwards dishonoured. In an action against the guarantor for payment, he pleaded (1) The Bill was not really signed by one of the acceptors, whose name it ostensibly bore; (2) That the Bill was not duly negotiated; and (3) Timeous notice of the dishonour of the Bill was not given to the defender, so as to have enabled him to operate his relief-repelled.

THIS was an action for payment of the contents of a bill drawn by the pursuer upon, and accepted by, Leiper & Black, and guaranteed by the defender. The acceptors having failed to retire the bill, this action was raised against the guarantor, Keith. The conclusions of the summons were as follows:

Therefore the defender ought to be decerned to pay to the pursuer the sum of £14 sterling contained in a bill drawn by the pursuer upon, and accepted by, James Leiper, Roadside, Findon, Portlethen, Hillside, and Agnes Black, there, dated the 20th May, 1862, and payable five months after date, payment of which bill was guaranteed by the defender in the event of any default in payment thereof by the said James Leiper and Agnes Black, who failed, and still fail, to make payment thereof. All conform to the defender's holograph letter of guarantee to that effect, addressed to the pursuer, and dated the 30th May, 1862, which bill and letter of guarantee will be produced at the calling of this cause, with the interest of said sum at the rate of five per cent.

per annum from the time said bill fell due till paym and with expenses; but reserving to the pursuer ad and diligence of every sort competent to him against said James Leiper and Agnes Black upon the for bill, and for interest, damages, and expenses as acco The record having been made up and closed Sheriff-Substitute pronounced an Interlocutor decer against the defender in terms of the libel, and fin him liable in expenses. He added the following

NOTE. This is an action to enforce a guarantee gr for the due payment of a bill of exchange. The pursue The defender, by a holograph drawer of the bill. guaranteed that he would see the bill paid. The bill w paid when due, and the pursuer now claims its amount

the defender.

The defender objects to payment being enforced, on g which may be reduced to three-the first ground being the bill was not signed by one of the acceptors, whose ture it bears; the second, that the bill was not duly nego when due; and the third, that through the pursuer's to give the defender timeous notice of the dishonour bill, the defender's power of operating relief again acceptors was lost.

1. The first ground of defence is not very explicitly on record. The defender contents himself with denyi the second acceptor signed the bill without averring nature to be a forgery, or saying when, where, and it was forged. It appears to the Sheriff-Substitute statement is insufficient in the position in which matte between the pursuer and the defender. In his guarantee the defender admits the bill to have been sig both acceptors; and if he wishes now to turn round à that one of the signatures is a forgery, he must, at les the burden of proving it to be so; and to entitle hint on such a proof, he must make a specific averment questionable if the letter of guarantee does not altogether from challenging the authenticity of the bill he were in a position to allege accession to the forgery part of the pursuer. He appears as the friend of the a aiding them to obtain money or credit from the which they would not otherwise have got; and it contrary to good faith to allow him to plead that guaranteed payment of a document which was for was his duty to have seen to the genuineness of the si before granting the letter of guarantee; and if on acceptors has (as he seems to intend to allege) defrau by getting him to guarantee a bill to which the oth ture is forged, it will be reasonable to hold that he his recourse in that case against that acceptor, and no

the innocent holder of the bill.

2. The defence founded on the want of due negotiati bill would at one time have have raised a difficult But it is now fully settled that, as in a question bet person guaranteed and the guarantor, it is not nec present the bill for payment, or to protest it for not or to give notice of dishonour-(Walton v. Muskil, I 1844, 14 L. J., Ex. 54; Hitchcock v. Humfrey, 1843, 12 L.J., C. P. 235; Story on Bills, third ex 372; 1 Bell's Com., fifth edition, 377; see als v. Kirkland, 23d January, 1861, 23 D., 363). The this is obvious. The guarantor undertakes that the shall perform his duty, and his duty is to seek out his and make payment without causing trouble or expen

Although the bill in this case has a place of payr tioned, failure to present there does not impair the right against the acceptor (1 and 2 Geo. IV., e though it would have cut off the holder's right again sers (had there been any), the guarantor would hav right to complain of that, as he could not have obtai from them in any circumstances.

suffered loss from the want of due negotiation, or 3. If, however, the guarantor is able to make or want of timeous notice to himself, he may be enti freed from his engagement, on the ground that th guaranteed has not dealt fairly by him. It is the this plea which the defender seeks to obtain on ground of defence. But to entitle him to its bet plain that he must make a relevant averment of loss