part of it, he is entitled to deduct the sum actually so paid as wages, and no more; and that so long as the relation of master and servant subsists, if he constitutes himself a moneylender under a contract by which he is to derive a profit on the advance, that not only is he not entitled to debit the workman's wages with such profit, but that a very serious and most difficult question might be raised whether he is entitled to recover or deduct not the profit but the sum itself thus illegally lent.

The deductions for medical attendance would have been a legal one had it been agreed to by the pursuer in writing, but as he admittedly has not so agreed, the sum deducted under this head must also be paid.

It is of such importance to get an authoritative decision upon this subject that I trust some means may be taken for having it settled in a higher Court, either in this or in some similar case.

an apprentice fee of £150, acknowledged in said indentu to have been received by the defenders, the grounds which said conclusions are rested being, that the defend refused or failed to instruct the pursuer in their busin of engineers, and dismissed him from their employment 25th September, 1861: Finds, that the indenture entered into as from the 16th November, 1857, and it stipulated therein that the pursuer should, on no occas whatever, sickness excluded, absent, divert, or desert him from the defenders' employment without leave first asked i obtained, under the penalty therein mentioned: Finds, t it is further expressly provided and declared in said indent that if the said pursuer shall, without permission asked obtained, absent himself from the service of his said ma or masters, or refuse to obey orders, or otherwise behave i disrespectful or unbecoming manner to them or him, or their or his manager or foreman, such conduct, if repeate persisted in, or if of an aggravated nature, shall, in the op of his said master or masters, be held a sufficient cause expelling the said apprentice from their or his employment, cancelling this indenture, in which event no part of apprentice fee shall be returned to him, any right the being thereby forfeited, and the above sum of £50 shall paid to the said defenders, as agreed on ascertained estimated damages, without any deduction whatever: Fi that during the whole period which elapsed from the mencement of the apprenticeship in November 1857, til termination in 1861, the pursuer's attendance was broken irregular to so great an extent, that long periods of abs were the rule, and short periods of attendance the excep Finds, in particular, that after being a few weeks in defender's employment, from and after November, 1857, pursuer was absent from Christmas of that year till Au 1858; that he was again absent from Christmas, 1858 1859, till August following; that he was a fourth time st February, 1859; that he was a third time absent from M from October, 1859, till January, 1860; and finally, the absented himself altogether from February, 1860, till ruary, 1861, so that during the whole four years he was more than six months in all at his work, and that at intervals: Finds, that the pursuer, who is now 24 yea age (see Dr. M'Leod's Report, No. 16), has, to a certai tent, accounted for these absences by constitutional der ment, arising from a scrofulous habit of body, and the with the evidence of the witness, Robert Lynn, M.D. medical attendant of the pursuer's family in Ireland, tog with that of the pursuer's mother and brother, establish he

medical certificates contained in No. 13 of Process, comĮ

suffered from time to time seriously in his health Finds, that the above evidence does not establish that necessary for the pursuer to absent himself for the period above mentioned, and in particular it does not e that the state of his health afforded sufficient cause absence from October, 1859, till January, 1860, nor

THE pursuer, a minor, was, with consent of his father, apprenticed to the defenders, who are engineers, in December, 1858. This action concluded for delivery of the deed or indenture entered into between the parties, and the duplicate thereof, and for repayment of £150, being the apprentice fee paid to the defenders under the indenture, in respect of the refusal or failure of the defenders to teach and instruct the pursuer in the art, trade, and business of engineer and millwright, as under-protracted absence from February, 1860, till September taken by the defenders in the indenture, in so far as the defenders had dismissed the pursuer, and refused to implement the indenture. The record was made up by condescendence and defences. The defenders admitted the dismissal, but averred that the pursuer's attendance at his work had been irregular, and he had absented himself for long periods without leave asked or obtained, or without any good or sufficient cause. The pursuer, while admitting occasional absence, alleged that this arose from sickness known to the defenders; and that if the pursuer's absences had been without any good or sufficient cause, the remedy ought not to have been dismissal, but enforcement of the penalty fixed in the indenture. The record was then closed, and a proof pro ut de jure allowed, which having been led, and parties' procurators heard thereon, the Sheriff-Substitute pronounced the following Interlocutor:

Having heard parties' procurators, and resumed consideration of the proof, productions, and whole process, Finds, that the summons concludes-First, for delivery to the pursuer of the indenture, No. 5-1; and Secondly, for repetition of

Finds, that the pursuer has also failed to prove that he and obtained leave from the defenders to absent him the manner he did: Finds it on the contrary proved, pursuer was sometimes absent without sufficient reason that the defenders and their foreman repeatedly remons with him on the length and frequency of his absence, not disguise from him their opinion that it was attrib to laziness or some other cause than illness: Finds, pursuer's mother having come with him to Glasgow tember, 1861, and pressed the defenders to receive him they with some reluctance agreed to do so, on the com which was assented to, that he should come to his w Monday the 16th September, but the pursuer did not his appearance on that day, nor on any day during the Finds, that the defenders' foreman, Thomas Russell, met him on the street on the Saturday, expressed dissatis received if he came on the following Monday morning at his conduct, but nevertheless told him that he w not afterwards: Finds, that the pursuer did not go Monday, and did not make his appearance at the defe work till the Wednesday, when the defenders refused him back: Finds, that the defenders were justified refusal, both on account of the pursuer's breach of inde and of his more immediate breach of contract and di of the warning he had received, for which he admita cannot plead indisposition, and has not assigned or ins

and a-half out of four years, and not fitted, from the state of his health and constitution for the work, neither the masters nor the apprentice have got the benefit which they expected when entering into it, through unavoidable misfortune, and the parties therefore must be restored hinc inde in integramthe master returning to the apprentice the apprentice fee, being freed from any demand for wages, and the apprentice being relieved from his obligation of service, under the rule condictio causa data causa non secuta. Therefore, alters the Interlocutor complained of, repels the defences, decerns against the defenders, in terms of the conclusions of the summons, finds the pursuer entitled to expenses, appoints an account thereof to be given in, and remits to the auditor to tax the same and report, and decerns.

The pursuer appealed. After a hearing, the Sheriff was wasted by a scrofulous disorder. It was quite impossible fr.nounced the following judgment:

rassed from and abandoned any remaining portion of the chim: Finds upon this plea, that the debts contained in the two invoices-being of the same description-for goods d and delivered to the defenders, within a few months of each other, and both having been owing in December, 1861, although the period of credit of the second invoice had not then expired, must be considered reality as one and the same debt, the pursuer having rised an action in the Small Debt Court for a portion of the debt, is excluded, under the terms of the Small Debt Act, from prosecuting for any further portion of the debt, and must be held to have passed from and shaconed any remaining portion of the claim: Finds this view of the case is not altered by the fact of period of credit allowed for payment of the sums due er both invoices not having expired when the small debt action was raised, seeing that, as the period of allowed for payment of the first portion of the accent had passed, the pursuer might have raised an in for the whole sum due under both invoices, superg extract in regard to the amount due under the nd invoice till the period of credit applicable to it come and bygone: Finds, upon the whole, that as the res contained in both invoices were of the same dition, and they were bought within six months of hother, under the same conditions, both as to the re of discount and the period of credit allowed, they are to be regarded in law as forming one account, and in My one debt, to which the common or statute law cable to one debt falls to be applied; therefore alters Interlocutor complained of, sustains the defences, and es the defenders: Finds the defenders entitled to es of which appoints an account to be given in ated by the anditor, and decerns.

1

-It is trite juris that in an open account preruns from the date of the last article, and that yhether the orders for the goods were given vera writing, provided the account be substantially trous one. If the argument of the pursuer here rell founded in principle, it would follow that every in a running account must run a separate course ription, like termly feu-duties, whereas it is versally held that the account forms a unum quid, and of prescription runs from the date of the last article, if account is on the whole a continuous one. The whole one debt, and therefore the raising an action in the Debt Court, and obtaining decree for part of the mast, under the provisions of the Small Debt Act, right of action for the remainder. If any other of the statute were taken, its obvious intention be entirely defeated, because it would always be he power of a creditor first to raise an action for one on of an account, and then plead, as is done here, the debts were different because the goods had been red at different times. The case of an action being first in the Small Debt Court for the sum due r a bond or a bill, and then one for the price of a For a sum due on an open account, or the like, has ication to the present case, or rather they form ropriate contrast to it. 4. J. ALEXANDER.

21ST MARCH, 1863.

Alt. WM. BURNS.

SHERIFF COURT, GLASGOW.

(MR SHERIFF BELL.)

Lord Ordinary's Interlocutor awarding sequestration was dated 7th February, and the meeting of creditors was ordained to meet on the 16th. The Gazette notice was not published till the 10th. Objections-that the meeting was not duly called, as six free days did not elapse between the notice and the meeting. Repelled, as there was no nullity for the failure imposed by the Act. Claim rejected, the claimant being conjunct and confidant, and the only vouchers produced being bills which had been granted within two days of the sequestration. Claim by a Building Society for fines and contributions rejected, as not properly vouched.

In this competition the following judgment was pronounced:

Having considered the notes of objections for Robert M'Intyre, auctioneer in Glasgow, and John Thomson Duncan, accountant there, competitors for the office of trustee on the sequestrated estates of Joseph Ferguson, boot and shoe maker in Glasgow, and heard parties' procurators, viva voce, thereon: Finds and declares, for the reasons stated in the annexed note, the said Robert M'Intyre to have been duly elected trustee on said sequestrated estates: Finds the unsuccessful competitor, Duncan, 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.-At the meeting for the election, the votes for M'Intyre amounted in value to the sum of £378 3s 9d, and those for Duncan to the sum of £240 16s-giving the former an apparent majority of £137 7s 9d. At the scrutiny, an objection of a preliminary nature was stated for Duncan, on the ground that the meeting had not been held in terms of the provisions of the 67th section of the Bankruptcy Act, which provides that the Lord Ordinary or the Sheriff, by the delive rance which awards the sequestration, shall appoint a meeting than six nor later than twelve days from the date of the of creditors to be held on a specified day, "being not earlier Gazette notice of sequestration having been awarded." In the present instance, the Lord Ordinary's deliverance awarding sequestration is dated 7th February last, and the meeting of creditors is therein appointed to be held, and was held accordingly, on Monday, the 16th of said month, but the Gazette notice of the sequestration did not appear in the Gazette till the 10th February, so that six free days did not elapse, as the Act requires, between the date of the publication of the Gazette and the meeting. There was thus an irregularity; but it did not appear to the Sheriff that he was bound in consequence to hold the whole procedure at the meeting inept and creditors to meet at the time and place appointed by the Lord null. The 68th section of the Act makes it imperative on the Ordinary; and were the Sheriff to hold the procedure at the meeting null, it would be tantamount to rendering the Lord Ordinary's appointment, and the provisions of the 78th section, ineffective, and this though no penalty of nullity is attached by the Act to a failure to comply with a direction regarding the Gazette notice. But besides, the competitor Duncan seemed barred personali exceptione from stating the objection, seeing that he himself attended the meeting without any suggestion that it was irregularly held, was nominated and voted for as trustee, and "protested that he was duly elected by a legal majority in number and value of votes." Upon proceeding with the scrutiny it appeared that the votes for M'Intyre of Margaret Wallace, claiming for £108 4s, and of William Officer, claiming for £100, were both bad, in respect that the one claimant was conjunct and the other confident with the bankrupt, and that the only vouchers they produced with their oaths were bills granted by the bankrupt within two days of the sequestration or bankruptcy. The majority was thus turned in favour of Duncan, but his value consisted of only one vote, namely, that of George

PRET M'INTYRE and JOHN T. DUNCAN competing for Edwards, claiming as "one of, and on behalf of himself and

Trusteeship in Ferguson's Sequestration.

re Notice-68th Section of Bankruptcy ActConjunct and confident - Unvouched claim.

The

other trustees of the Scottish Savings Investment and Building Society," and this vote was held inadmissible. The first that the claimant was one of the trustees of the Society. So objection to it was, that no evidence was produced to instruct far this was true, but there was produced a fiat ut petitur,

For M'Intyre-REDDIE AND J. FISHER M'LAREN.
For Duncan-WILLIAM PATERSON.

25TH MARCH, 1863.

SHERIFF COURT, GLASGOW.

(SHERIFFS SIR A. ALISON AND SMITHI).

which is equivalent to a decree of Court in the petitioner's proof-in-chief and conjunct probation, and the proofsfavour, as trustee upon an extract registered bond and disposi-in-chief having been led on both sides, the pursuers tion in security; and, on the whole, that production seemed to began their conjunct proofs, and the defender objected distinguish the case from that of Anderson, 9th July, 1847, to the evidence proposed to be led under it, on the and to assimilate it to that of Aitken, 28th February, 1852. ground that the defender's proof-in-chief was in reality The objection, however, which was held fatal was, that the solely, and that no farther proof-in-chief was competent account produced as the voucher of the debt ranked for was illegible and unintelligible; and that as the claim was not for to the pursuers: Finds that this objection was repelled an ordinary book debt, but apparently for fines and contribu- reserving all objection to particular questions which tions by the bankrupt, amounting to a sum different from that might be put, and a question was proposed to be put to set forth in the extract bond and disposition, the rules and a witness-what is the practice in steering when two regulations of the society, or other documents, should have vessels, coming in opposite directions, approach the same been produced along with the account to warrant the claim. point?-which was objected to by the defender, and the objection sustained by the Sheriff-Substitute: Finds tha the question was competent, and should have been al lowed, in respect the defender had in his proof tried t prove, by the evidence of M'Kinnon and others, what in his opinion, was the practice, and what he had know to be the practice in the case of two steamers approach ing the same point: Therefore alters the deliveranc complained of, and allows the question on page 56, an also the one on page 58, which is of the same tendency Finds, in regard to the appeal for the defender, that th defence is, that the master of the vessel acted recklessl and carelessly, and thereby occasioned the collision, an that he is habit and repute a reckless captain, and ha been repeatedly fined for violating the Rules and Regu lations of the River Clyde: Finds it admitted that Pri was captain of the "Pearl" on the occasion libelled Finds that this matter of careless steering is relevantnot as involving a separate or specific charge again but as throwing light on the question, who was in fau Price, the master, or of damages against his employe when the collision in question occurred: Finds that suc proof is relevant, just as in a charge for assault proof a violent temper, or of having been previously co victed of assault, is relevant, as throwing light on wh was in fault, and that proof of this is relevant to the effect in this particular case, though not specially allege on record: Finds that the steadiness or recklessness one of the masters or captains being to be inquired int it becomes competent to prove the same as to the oth captain, and allows conviction against either or both the captains to be produced, and suspends the circum duction to that effect, and to the effect also of allowin the questions objected to on pages 56 and 58 to be p to the pursuer's two witnesses, to whom the same we proposed to be put, but to no other effect; and remits the Sheriff-Substitute to fix a diet for taking the pro now allowed, and do farther as to him may seem just.

WILLIAM B. COLBORNE v. JAMES M'INTYRE.

Maritime-Collision.-Two passenger steam vessels came into collision on the Clyde, whereby one of them suffered damage. In an action for recovery of the damage, circumstances in which held that though both vessels were not free from blame, the preponderance was against the vessel sued, and decree, with expenses, decerned for.

THE pursuer sued the defender, owner of the steamer "Pearl," formerly a passenger steam vessel on the Clyde, for £26 13s 11d, as part of the loss, injury, and damage suffered and sustained in consequence of the defender, or others for whom he was responsible, having carelessly, or recklessly, or negligently, illegally and culpably, steered the steam vessel "Vulcan" against into the "Pearl," while she was at or near the Kirn Pier, on 17th May, 1860, whereby the "Pearl" suffered damage to the amount of the sum sued for.

The defence, stated in a minute, was a denial, and an allegation of carelessness and recklessness on the part of the "Pearl" in sailing into the Kirn Quay contrary to the rules and regulations of the Clyde. A special charge of recklessness and carelessness against the master of the "Pearl," and that he was habit and repute reckless and

careless.

The record was closed on the summons and minute, and both parties were allowed a proof before answer. In the course of the proof certain questions were objected to, and the objections sustained. These deliverances were appealed, and the Sheriff thereon pronounced the following judgment:

Having heard parties' procurators under the pursuer's appeal against the deliverances pronounced in the course of the proof, and whole process, Finds that the present is an action brought by the owners of the steamer "Pearl," against the owners of another steamer, the "Vulcan," for loss and damage done to the "Pearl," on the ground of its having been run down at the pier of Kirn, by the "Vulcan," through the fault of its master and crew: Finds that the parties were each allowed a

Proof having been concluded, and parties' procurato heard, the Sheriff-Substitute pronounced the followi Interlocutor:

Having resumed consideration of this process, wi the proof and productions, and having heard partie procurators thereon, Finds that, on 17th May, 186 the principal pursuer was the owner of the steam-ves Pearl, and the defender was owner of the steam-ves Vulcan: Finds that, on 17th May, 1860, when the vessels were each approaching to and near the pier Kirn, the former coming from Dunoon, and the latt from Gourock, they came into collision, and the Pe sustained some injury: Finds that the pursuer has fail to prove that the collision was caused by any fault negligence of the master or others in charge of t Vulcan; but, on the other hand, the defender proved that it was caused by the culpable and rec less conduct of the master in charge of the Pear Therefore sustains the defence, and assoilzies the d fender: Finds the pursuer liable to the defender expenses, allows an account thereof to be given in, a remits the same to the auditor of Court to tax a report, and decerns.