that he should be paid for his work, and in proportion to it, and that those persons who have either no work to do, or who, if they have, don't do it, should not be paid at all-reserving, however, all existing rights. I entirely concur in the opinion which you attribute, and I hope correctly, to the Lord Advocate, that " a fixed sum for all the Sheriff-Substitutes of Scotland would never do." In what part of my letter you find the slightest indication of a contrary view I am unable even to guess.

Your second charge is equally unfounded. You say that another purpose of the pamphlet "is gone about in a more indirect method"—this other purpose being "to abolish the Sheriff-Depute, that the right of appeal might, as a matter of course, go with him." There is not a word in the pamphlet from which either of these conclusions can fairly be drawn. I have shown (and if the numerous letters I have received on the subject are to be credited)-shown successfully-that the SheriffDepute, whatever the nature of his office may be theoretically, is now practically, according to the existing form of process which has grown up since the passing of the Statutes in 1826, 1838, and 1853, an Appeal Judge only, and an Appeal Judge only in that class of cases which are conducted on written pleadings. I have farther stated, that in those counties where there are few cases in the Ordinary Action Roll, the SheriffDepute is an Appeal Judge with few or no appeals to dispose of. But does the granting or maintaining of these propositions carry along with it either the abolition of the Sheriff-Depute or the right of appeal? Nothing of the kind. They may lead to this conclusion, that in all those counties where the business of the Ordinary Action Roll is inconsiderable, where the Sheriff has little or nothing to do, a separate Sheriff should not be maintained, and that by the union of a number of counties under one Appeal Sheriff, a sufficient field of duty should be found for a lawyer of ability and learning. This course has been already adopted by the Legislature to some extent, and all I advocate is its extension. I am perfectly satisfied, from what I know

of Sheriff Court business, that Twenty-five App Sheriffs are altogether in excess of the requirements the judicial business of the counties. I have a stro belief also, that fifty-five Sheriff-Substitutes are grea more than are wanted, and that by a great diminut in the number of both classes of officials, the work wo be infinitely better done. Full employment is on the most important aids to legal knowledge and judi fitness. The object of my pamphlet is to excite pu attention to this important subject (which I am gla know I have to some extent accomplished), in the b that a Parliamentary commission-not a Govern commission-may be issued to investigate a sub which is of the greatest importance, not as regards private interests of the present officials, but the publ large.

I have said that I take no exception to the no though there is some lack both of truth and of cour where you exclaim, "Strange to say, the membe Perth-one of the ablest of Scottish members-was found deficient in the knowledge of the position duties of our Sheriffs, and to enlighten him, and the him the other M.P.'s, the Sheriff-Substitute of St has given us a history." This is rather a pervers my introductory observations, in which I say "to indeed (Mr Stirling of Keir) the general history local tribunals is sufficiently familiar," and that I cate my statement "to you, on account of the interest which you take in the civil and criminal prudence of the country, and the accurate know which you possess of every subject to which you directed the energies of a powerful and highly-cult mind." I think these expressions might suffic have protected me from the charge of presumptio attempting to enlighten Keir."

I am,

SIR,

Your obedt. Servt.,

ROBT. ROBERT

3D DECEMBER, 1862.

SHERIFF COURT, GLASGOW.

(MR SHERIFF STRATHERN.)

DALZIEL.

Lin lord and Tenant—Interdict.-A landlord began to take down a tenement before having arranged with one of the tenants. The tenant applied for and obtained interin interdict. The Substitute, on grounds of expediency, recalled the interdict, on the respondents findLag caution to indemnify the petitioner. On appeal, held that the petitioner, standing on her legal rights, was not bead to resort to a claim of damages only against the efending party, but was entitled to interdict; and interia interdict granted.

THE petitioner was a tenant of the respondent in Main Street, Glasgow. She had taken the house in June last, from that time till Whitsunday next, the rent to be at the rate of £9 per annum. She entered into possession, and was in possession at the date of presentation of this peration on 3d November last. The respondents, who are lers, with the view of erecting a range of new teneDenta, began to take down the old building, of which the peritioner's house formed part, and in particular had taken to the slates, and had surrounded the building back and with the old materials. She therefore presented this ption for interdict against the respondents further proreeling with their operations, and craving an order on them to rebuild and restore the premises to the same socdition in which it had been previously to the comRencement of their operations. Interim interdict was granted, and a diet fixed for hearing.

On 4th November, parties' procurators having been and, the Sheriff-Substitute pronounced the following nterlocutor:

Having heard parties' procurators on the petitioner's applifor continued interim interdict, in respect it is alleged The respondents, that, without admitting the alleged let, etitioner expressly agreed to waive all titles to possession subjects in question, and to vacate the same, so that the ers might proceed with whatever operations they had in plation, on the petitioner being freed of an arrear of which she was owing, and of a further payment of five Lags; that this arrangement was made before operations rs commenced, and that the said operations were entered on the faith of it; and that the respondents are now , and have always been ready to discharge said arrears Art, and to pay said sum of five shillings. Before finally

been led continues the interim interdict, and quoad ultra, reserves the whole rights and pleas of parties; and, finally, appoints parties to be heard on the grounds of action, and in defence, on 7th November current, at eleven o'clock forenoon, in case the respondents shall have duly lodged a notice of appearance.

Parties' procurators having been heard, the SheriffSubstitute pronounced the following Interlocutor:

Having heard parties' procurators on the petitioner's application for continued interim interdict, and having heard witnesses for both parties on the respondent's allegation that the petitioner had agreed to vacate the premises as stated in last Interlocutor: Finds that the respondents have not made out such a prima facie case of such an agreement having been entered into as would entitle them to claim in hoc statu a recall de plano of the interdict granted; but having regard to the eventual interests of both parties, and to the comparative injury and loss to be sustained on either side by granting or withholding interim interdict: Finds that the preponderance of loss must eventually be greater on the respondent's side by interdict being granted, than on the side of the petitioner by the interdict being refused, but that in any view the petitioner's interests and rights, whatever these may eventually be proved to caution, acted in the books of Court, that they will indemnify be, must be protected: Therefore, on the respondent's finding and harmless keep the petitioner from all the consequences of their operations, in case it shall be established that she is entitled to possession of the premises till Whitsunday next; and against all damages she may sustain and expenses which she may incur if compelled to remove through said operations, recals the interim interdict, and allows the respondents fortyeight hours to find such caution, but continues the interdict until such caution shall have been found, and the said caution is hereby limited to the sum of fifty pounds.

This Interlocutor was appealed, and after a hearing, Sir Archibald Alison pronounced the following judg

ment:

Having heard parties' procurators under the appeal upon the Interlocutor appealed for, and whole process, in respect it appears from the summary complaint produced in process, at the instance of the present defenders, Dempster & Dalziel, that the house in question was let to the present pursuer from 20th June, 1862, to the term of Whitsunday following, which let is still current, in respect it is not competent for the owner of a tenement, separated into flats, and let to different tenants, to take off or remove the roof and upper flats without the consent of the tenants in the lower flats, thereby leaving them exposed to the inclemency of the weather, without any covering: in respect the pursuer alleges that the defenders are in course of removing and taking down the stories above her flat against her consent, by which she will sustain serious loss and damage; and in respect parties are entitled to stand upon

A

by the other respondent, M'Lellan, who expressly repudiates any intention of taking up the lease: Finds it further stated in the minute, No. 15, that the pursuer now abandons the declaratory and irritant conclusions of the summons, and that the respondent, Potts, now consents to decree of removing being pronounced against him. In these circumstances, repels the defences against the competency of the conclusions of the simmons as thus restricted, and on the want of jurisdiction in this Court; decerns in the removing in terms of the conclusions of the action: Finds, that the pursuer is entitled in this action to constitute his claim for any loss or damage which he may sustain through the respondent, Potts', failure to implement the conditions of his lease; and appoints the pursuer to state the amount of said claim, and in what manner he proposes to establish it, in a minute to be lodged by 24th current: Sustains the defences against the other conclusions of the summons, azies the defenders therefrom, and decerns.

Nor-The leading conclusions of this action, as originally d, were, it is thought, plainly and fatally incompetent. The facts averred neither constituted an irritancy, statutory, conreational, nor at common law. And if the principal respondent, Potts, had not withdrawn his defences against the

conclusions for removing, the Steward-Substitute is not conVILsed that in the action, as modified and restricted by the mmate, No. 15, there are legal grounds for decree in the pursuer's favour.

L

In the revised defences it was admitted that Potts was a sequestrated bankrupt, that his trustee had taken possession of his whole effects, and shut up his shop, in order to dispose them for behoof of his creditors, which was thereafter done, to the complete displenishment of the subjects of the lease. But it was denied that the bankrupt had deserted the premises, er indicated an intention to abandon his lease. The Steward Sabitate does not think that, in the absence of an irritancy the tenant's bankruptcy in the lease, the sale of the bank rap's stock and effects under the sequestration, and the temporary shutting up of the shop, and discontinuance of the ript's trade, while he was endeavouring to effect an arragement with his creditors, were per se sufficient to operate afriture of the lease, or to justify de plano, a decree of reval against him. And the hardship and injustice of such & course would in this case have been aggravated by the cirCatances of the landlord holding under his sequestration, and the deposit of the current rent in the Clerk's hands, ample curity for the payment of that rent when due. The bank was, it is thought, fully entitled, on strong grounds of a as well as equity, to a reasonable time for determining *ber he would or could resume his occupancy of the ses and his business there. Nor is the Steward-SubstiThe aware of any case in which a landlord, with his current ⚫ar's rent secured, has attempted, on the same grounds as are elled, to dispossess the tenant between terms, without ly affording him an opportunity, and duly calling on to replenish and re-occupy the subjects of the lease; and yan his, the tenant's, failure to fulfil that implied obligation Lat lease, could decree of removal competently pass against With regard to the claim of damages for shutting up temrarily the shop to the deterioration of the trade in it, it seems auclusive defence that there is no obligation in the lease to - it constantly open; and the profits of the trade in it during -lease being exclusively the property of the tenant, the landcan have no legal right to interfere with the tenant's mode redacting that trade, if not incompatible with the conditions f the lease, or with the right of hypothec, which has already - made effectual. The claim for the penalty of £50, stipuin the lease, on non-fulfilment of its conditions, was also mpetent as originally laid. For the summons contained alternative conclusion, requiring the tenant to re-stock and upy the premises. And even in the case of an agriculalbase, with an express obligation on the tenant to possess arm exclusively by himself or his servants, and to keep it ked with his own stock, it has been laid down in a recent m that "the non-fulfilment of that obligation cannot, any than the act of granting a sub-lease or assignation, be aded with ipso facto irritancy." And it is obvious that if tenant in the present case had found means to re-stock the remises in a reasonable time, no claim would have arisen er the penal clause of the lease; such claim would have , just as the irritant conclusion in the case of Forbes v. would have fallen, if Ure had been able to put a sufficient ock of his own on the farm.

The circumstances of the case, as now presented, are essentially different. For the tenant, after sufficient time has been allowed to him for the purpose since the present action was brought, has not only failed to re-stock or re-occupy the subjects of the lease, but has now, by the minute, No. 15, expressly abandoned the lease, and consented to decree of removing against him. The other respondent has no right or interest to oppose that conclusion of the libel, as he has expressly repudiated the obligations of the lease. And in that altered state of matters, the only remaining question in the case regards the pursuer's claim of damages against the respondents, under the penal clause of the lease, for the loss he has already and may hereafter sustain through the non-implement of its conditions. It would, with reference to the amount of that claim, be advisable for the trustee on the respondent, Potts' estate, to afford the pursuer the requisite facilities for re-letting the subjects of the lease, by giving him immediate possession both of the keys and premises.

Both parties appealed against this Interlocutor, and lodged reclaiming petitions. On considering these petions, the Sheriff (Mr Hector) pronounced the following judgment:

The Sheriff having advised the reclaiming petitions, record, and process, dismisses the appeal for both parties, and affirms the Interlocutor.

mons.

and damages was not incompetently introduced into the sumNOTE.-The Sheriff thinks that the conclusion for penalty This conclusion is truly now the only matter in dispute betwixt the parties, and the Sheriff does not see grounds sufficient for disturbing the finding on this subject stated by either of the reclaimers. The Interlocutor finds the pursuer entitled in this action to constitute his claim for any loss or damage arising through Potts' failure to implement the conditions of his lease, and allows him to state in a minute the amount and mode in which he proposes to establish it. If the pursuer can distinctly state the items of any loss really sustained, he is thus entitled to do so. If he states items either unintelligible or which he cannot establish, he will do so at his peril. Nor does it appear to the Sheriff that the reclaimer, M'Lellan, has any legitimate ground to complain of the Interlocutor. The summons contains no conclusion for penalty or damage against him, except "as trustee," and no decree has yet been pronounced. Under the finding the pursuer may (or may not) decree which shall ascertain him to be a creditor of Potts for constitute a claim for damages, for which he may obtain a the amount, and entitled to rank for his sequestrated estate hension, that the decree would be so expressed as to constitute according to law; but the finding does not warrant the apprecreditors. The Sheriff cannot avoid thinking this a case in or create any preference in favour of the pursuer over other which the parties ought to settle the claim of damage without persisting in further litigation.

The pursuer now gave in a minute stating the loss he had sustained through the violation of the lease by the defender Potts:-(1) At the period of Potts' bankruptcy the lease had two years to run, and he claimed the rents of these years, being £56. (2) The pursuer had left a dwelling-house and shop which he had taken for two years at £11 per annum, in order to occupy Potts' shop, to prevent more damage from their being kept shut (£22), which, deducted from the rent of Potts' shop, left a balance of £34. The pursuer had also left a different business from that of Potts, and he calculated he would suffer a loss of £16 for the next two years by the change. These sums amounted to £50, and the pursuer offered to prove them.

This minute was allowed to be seen and answered, and parties' procurators were appointed to meet and be heard thereon. To the order the Steward-Substitute added the following

NOTE.-Part of the pursuer's claim of damages stated in the minute No. 19, appears to be not merely contingent, but

indirect and consequential. The claim, quoad ultra, is vaguely and not very intelligibly defined.

The Steward-Substitute believes that damage must have been sustained by the pursuer from the abrupt termination of the contract of lease with Potts, and is therefore unwilling to deprive him of an opportunity of relevantly stating, and, if necessary, leading proof of that damage. But from the terms of the minute No. 19, he seems to have mistaken both the nature and limits of that claim.

It seems at the same time proper to recall to the serious consideration of the parties the prudent suggestion offered to them in the conclusion of the note to the Sheriff's Interlocutor of the 12th ultimo.

Thereafter the following Interlocutor was pronounced: Having advised the minute for the pursuer No. 19, and answers thereto, No. 20, with reference to the previous procedure in the cause, and heard parties' procurators, Finds it admitted that, under the lease founded on, No. 5, the defender Potts was, inter alia, bound to pay the pursuer, as the rent of the subjects of the lease from Whitsunday, 1862, till Whitsunday, 1864, the sum of £56 sterling: Finds it proved that the said defender, having been divested under his sequestration of the whole plenishing of the shop and other subjects of his lease, deserted the possession, and acquiesced in a decree of removing, at the pursuer's instance, founded on the said acts of displenishment and desertion, shortly previous to Whitsunday, 1862: Finds it alleged by the pursuer, that by such (defender's) abandonment of his lease so near to the term of Whitsunday, 1862, he (the pursuer) was deprived of the opportunity and powers of re-letting the subjects at that term, and was consequently obliged to leave premises then occupied by himself, and enter into possession of the subjects of the defender's lease, in order to avoid greater loss by leaving his own subjects unoccupied; that the rent of the premises thus left by the pursuer was £11 per annum, and that said defender is, under the penal clause in his lease, liable in payment to the pursuer of the sum of £34, being the loss incurred by him through the defender's violation of the conditions of his lease, whereby the pursuer will be obliged, for the two years after Whitsunday, 1862, to sacrifice, by the compulsory occupation of his own premises, the sum of £34-being the difference between the rent payable by the defender for these premises under the lease No. 5, and the rent of the premises the pursuer was obliged to leave: Finds it alleged by the defender, in defence against this claim, that the pursuer got the keys of the subjects of the lease No. 5 at the beginning of February, 1862; that he neither attempted nor wished to re-let these subjects, and that the claim is unfounded and irrelevant: Finds that the proposed mode of estimating the extent of this item of the pursuer's claim, as set forth in his minute No. 19, is neither equitable nor competent; but finds that the pursuer is entitled to claim under this item, as loss to be reimbursed by the defender Potts, the difference between sum of £56 payable by the defender under the lease No. 5, as the rent of the pursuer's subjects from Whitsunday, 1862, till Whitsunday, 1864, and the sum (if less than £56) which might have been got as a fair rent for these subjects from an independent tenant taking them at Whitsunday, 1862; and before farther answer, appoints parties' procurators to attend in the Steward's Chambers on the 10th current, at 11 A.M., to be heard as to the most satisfactory mode of ascertaining the rent at which the subjects might have been let at May, 1862: Finds that the second item of the pursuer's claim of damage, amounting to £16 sterling, is incompetent and untenable, repels and disallows that portion of his claim, and assoilzies the defender therefrom, and decerns.

NOTE.-It is not only probable, but almost self-evident that the pursuer must have sustained pecuniary loss by the defender's abrupt desertion of the subjects of his lease. But he certainly has failed to set forth in the minute No. 19 any part of that loss which he is entitled to claim from the defender in a clear or satisfactory manner. What the pursuer is entitled to recover here is the direct loss in rent or otherwise arising from the defender Potts' violation of the conditions of his lease. Indirect or consequential damage may also have resulted to the pursuer from his property being thrown on his hands in the middle of a term. But each damage does not form a ground of action here. The pursuer's procedure has made it difficult to ascertain the loss, if any, sustained by him on the

rent of the subjects from Whitsunday, 1862, till Whitsunda 1864.

By entering himself on the occupancy without advertisi or inviting offers for a lease of the subjects, the pursuer m be held to have undertaken himself, or at all events to ha discharged Potts of all liability for the rents of these t years, and consequently of all claim of damage for loss of r effeiring to these two years, unless he can show that the s jects, if advertised, would have failed to bring that rent. was not entitled to occupy them at a rent of £11 per ann if another tenant would have given more than £11 for th or if, secundum arbitrium boni viri, they were in May, 18 worth more than £11 per annum on a two years' lease, it h bly appears to the Steward-Substitute that the most satitory and least expensive mode of now determining that ma is by a reference to one or more persons of skill cognisan the demand for, and the rent given for subjects similarly cumstanced in the burgh of Kirkcudbright. The other tion of the pursuer's claim, amounting to sixteen pound not tenable to any extent. It stands on a very peculiar, not very logical foundation. It might perhaps have more lucidly set forth in the pursuer's minute. But it s to resolve into this: that the pursuer was carrying on a perous ham curing business in a house rented by him at per annum, when the subjects leased by the defender at per annum were vacated, and in order to effect a savin relinquished that prosperous business and that low-r house, and went into the more highly-rented house left b defender, and commenced there the business of a g which he had previously tried in these premises, and not to be prosperous. In other words, he was doing w the ham-curing trade, he wished to do better, he wen the grocery trade, and with what result time will show.

To make the defenders in any respect responsible for voluntary and rather speculative proceeding on the pur part, or for the pecuniary result of that proceeding, wou a recognition of claims of reparation arising not merely consequential or contingent damage, but also from poss problematical damage. This part of the pursuer's claim very clearly founded in fact, and it has very decided

foundation in law.

This Interlocutor was appealed by the defender M lan, and the Sheriff (Mr Hector) pronounced the fo ing Interlocutor:

The Sheriff having considered the Interlocutor ap against, record and process, dismisses the appeal, and ↓ the Interlocutor.

NOTE.-The only appellant is the defender Mr M1 as trustee on Potts' sequestrated estate. But it do appear to the Sheriff that the Interlocutor contains an ing, or recognises any principle of which he can rig complain. The pursuer's claim under the £16 item Interlocutor repelled, and he has not appealed again part of the Interlocutor. And as regards the other part pursuer's claim, namely, the £34 item, the Steward-Su has not sustained it, but only pronounced a finding and parties to be heard as to the proper mode of investi This seems not inapplicable to the state of the case, nort to any rule of law arising under the circumstances. T suer claims £56 as the damage due by Potts, in respect failure to pay the stipulated rent of £28 per annum two years of the lease to run after Whitsunday, 1862 £22, as deducible in respect the pursuer himself has tak session, being at the rate of £11 per annum. The que Is this all that the pursuer is bound to allow by way tion in respect of his possession for the two years in And to determine this, there must be inquiry if parties agree. The rule of law which seems applicable is the in Mr Hunter's Treatise: The landlord is entitled t another tenant, "and to claim as a creditor for dam any) by reason of non-implement. The damages will difference of rent between the old and new lease, or th of the rents under deduction of the value of the lease also Bell's Com., Vol. i., p. 80; and Vol. ii., p. 413; Edition (Shaw's), p. 900).

Thereafter the following Interlocutor was pron after having heard parties' procurators:—