on 7th March, 1862, and those of Alexander Walker and Alexander Low were sequestrated on 4th April, 1862. The appellants lodged claims for the sum due under the bond on the whole three estates; and drew thereon from James Low's estate 8s 4d per pound, from Alexander Low's estate 3s 93d per pound, and from Walker's estate 4s 8d per pound-in all 16s 93d per pound. Upon a second and final dividend, at the rate of 9s 8d per pound, being declared from Walker's estate, the trustee admitted the appellant's claim to a participation in that dividend, under the qualification that the appellant should not draw more from Walker's estate than would, along with the dividends already received by them from the other estates, make up 20s per pound on their debt as at the date of sequestration; and quoad ultra he rejected the claim. The present appeal was then taken, on which a record having been made up, the Sheriff-Substitute pronounced the following Interlocutor:

Having considered the closed record, Finds, in point of fact, that the appellants claim to be ranked on the bankrupt estate of Alex. Walker, farmer, Mains of Hassiewell, for £299 4s 1d sterling, the amount of a cash credit bond granted by Alexander Low, James Low, and the said Alexander Walker (all of whose estates have been sequestrated), with interest to 4th April, 1862, the date of Walker's sequestration: Finds that on this claim the appellants have drawn from the sequestrated estates of the said Alexander Low, James Low, and Alexander Walker, dividends at the rates of 3s 94d, 8s 4d, and 48 8d per pound respectively, equal in all to 16s 9d per pound: Finds that, by the deliverance appealed against, the trustee has found the appellants entitled to draw, as a second dividend from Alexander Walker's estate, £48 5s 04d, equal to 3s 21d per pound-making, along with the beforementioned three dividends, 20s per pound on the whole debt claimed on by the appellants, which includes interest to the date of the latest sequestration (Walker's): Finds it admitted that the whole funds of Alexander Walker's estate are insufficient to pay the general body of creditors 20s per pound on their debts, with interest to the date of sequestration, but only a much less sum: Finds, in point of law, that, in these circumstances, the appellants are not entitled to draw interest on their claim for any period after the date of awarding sequestration: Therefore dismisses the appeal, sustains the trustee's deliverance complained of, finds the appellants liable in expenses of process, etc.

NOTE.-The dividend of 38 24d appealed against extinguishes the claim of the appellants as ranked, in terms of the Bankrupt Statute. But they plead that they are entitled to the full amount of the declared dividend, to the effect of receiving payment of interest, amounting to £11 88 54d, which has accrued between the date of sequestration and 10th June, 1863; that is to say, that they should be paid in full of their claim, principal and interest to this date, while the other creditors are only being paid 14s 4d on their debts as at the date of sequestration. They say that there is no provision in the statute authorising a trustee to declare a dividend of one rate per pound to one ordinary creditor, and another rate to another ordinary creditor; and probably there is not, but the whole tendency of the statute is so to equalise the dividends as that each creditor shall receive an equal and proportional amount on the claims ranked. And it may be noticed that the dividend of 38 24d amounts to £48 58 03d, while a dividend of 9s Ed would yield more than three times that amount, and greatly more than extinguish the £11 88 54d; so that, in any view, the trustee must declare a different rate of dividend to the appellants and to the other ordinary creditors. No doubt, if, after all the debts ranked have been discharged, there be a residue, the appellants will then be entitled to claim out of such residue the full amount of the interest on their debt in terms of law; but till this residue is declared, the Sheriff-Substitute is of opinion that they must rest satisfied with 20s per pound on their claim as ranked. Act. WILLIAM F. OGG.

Alt. JAMES & GEORGE COLLIE.

5TH JULY, 1864.

SHERIFF COURT, PERTHSHIRE-PERTH. (MR SHERIFF BARCLAY.)

NEVO GREGO, poulterer, Kirkgate, Perth, v. H. W. PALMER, Captain, 74th Regiment, and commanding the depot, and President of Officers' Mess, Perth Barracks.

Regimental Mess-Messman.—Circumstances in which held that a regimental mess was not liable for delts incurred by their messman to tradesmen.

THIS is a summons for £5 10s 4d, the amount of an account commencing 2d September, 1863, and ending 8th January, 1864, for furnishing of poultry for the military mess at Perth Barracks.

It appears that Andre' Godtfurneau had at a previous period acted as messman at the barracks before the arrival of the 74th depot, and after an interval of about a year resumed the office on their arrival.

It is not disputed that the furnishings charged wer all supplied to the messman, and by him used for th purpose of the mess table, and that, during the whol period of the furnishings, Captain Palmer, as senio officer, was in the command of the depot, and presiden of the mess.

The 74th arrived in Perth in April, 1863, and on 12t May there appeared in the Perth Courier the followin advertisement-"The officers of depot, 74th Highlander will not be responsible for debts incurred by the messma or any of their servants, unless they received writte orders signed by one of the above officers.—Perth Ba racks, 11th May, 1863."

The messman obtained supplies from various tradesme In the present instance it is not pretended on the one ha that any special notice of non-liability of the officers w given the pursuer, or that he had seen, or was in t knowledge of the advertisement above quoted. On t other hand, it is not pretended that any special orda either verbal, or in writing, or guarantee was given t pursuer by the officers. The pursuer entered in his bo the supplies as to "the officers' mess" without referen to the names of the messman or the officers. It is alleg that special notice of non-liability was made to the wi merchant, who is said to be the largest creditor, and has not as yet prosecuted for his claim. But there a obvious reasons why in wine the officers might select t merchant, and yet protect themselves from liability special notice.

The messman in the beginning of this year abscond leaving heavy claims unpaid to the tradesmen, and these they seek to render the officers liable.

The officers had a contract with the messman in usual mode adopted in similar circumstances, whereby made certain stated charges for meals which were per dically paid to him without requiring production discharged accounts by the tradesmen to him. It understood that there is some balance unpaid in t hands of the officers, which may be made a divisi fund amongst the creditors; but the creditors maint the liability of the officers for the whole amount, on t

The pursuer specially founds on the following section the "Queen's Regulations and Orders for the Army, ated Horse Guards, 1st December, 1859." "The #tablishment of a regimental mess upon a well-reguted system is an object of the utmost importance, and quires the unremitting attention and superintendence the commanding officer, who is responsible that all me accounts are regularly kept and checked-that each ember pays his bill every week, and that the tradesen who supply the articles for the use of the mess are ntioned against giving credit to the messman-officers not the messman are responsible to tradesmen for tstanding claims against their mess.”

A correspondence ensued between the solicitor for the ditor and Captain Palmer, and the matter having en brought before the military authorities on the 4th y last, the Adjutant-General announced that "the planation of Captain Palmer, relative to the debts tracted by the late messman of the depot, appears isfactory to his Royal Highness the Commander-inief."

After hearing parties fully on the case, and carefully sidering the matter, the Sheriff-Substitute has formed Enions on the following points:

st, There can be no liability in the defender as officer in amand or president of the mess. Such is not a corporate . It would require individual guarantee on his part to der him personally liable, unless he has rendered himself leby neglect of positive duty required of him.

d, The mess not being a corporate body, there can be no and several liability on its members; it was understood he hearing that the defender had allowed himself to be ed as sole defender instead of summoning each individual er forming the depot during the period of the furnishings; member could not be rendered liable for more than his e of the claim while he was a member of the mess. It was stated that, besides the officers of the 74th, dursome period of the claim the officers of a hussar regiment also members of the mess, and who had now left. This, the notorious fact that officers of a depot are often ged, or absent on leave, tends far to show that the memof a military mess cannot, in any view, be held as debtors supplies made to the messman while they are not mem

of the mess.

It will be kept in view that the messman was not the nt of the officers, ordering supplies directly for them, but ontractor furnishing them with meals at fixed prices.

The pursuer relies mainly on the rules in the Queen's ulations, but it appears to the Substitute that, however and well calculated such order is to uphold the credit honour of the army, it cannot be founded on by tradesto render officers of the army liable to dealers any furthan they are at common law. Its aim, obviously, is to ent defaulters amongst the officers themselves, and that smen be cautioned against giving credit to the messman. tradesmen give no credit to the messman, there ought no outstanding claims; and, if there be such, the officers uthoritatively warned, by their official superiors, that will by them be held responsible. The regulations are blic laws, but merely for the order of the army. If the rs make themselves liable at common law, they could be se relieved therefrom by any contrary rule in the Queen's lations any more than they are, as now sought to be made, liable by the rule above quoted, unless they are equally common law.

The officers rely on the advertisement above quoted. pursuer meets this, first, by the plea that such advertise and the special notice to the wine merchant, afford nce of the necessity of such caution to avoid liability; next, that the advertisement, both in its terms and the mel through which promulgated, was insufficient to give

ment and special notice would not infer liability; this only showed their compliance with the army regulation, and desire to protect their own respectability and credit with the public, and to guard tradesmen from loss. It was objected that there was only one advertisement in one of three weekly newspapers tion; but it was answered that it is the oldest newspaper in published in the garrison town, and that the least in circulaPerth, and the earliest published in the week. The terms of the advertisement are also made subject to criticism, the caution being against giving credit to "messmen or any of their servants," thus expressing messmen in the plural, classifying them with servants (not using the words "other ser vants"), and not saying, in so many words, supplies to the mess. The written orders are also said to be given to the hypercriticism, and no person of ordinary intelligence could This does appear to be servants, and not to the tradesmen. otherwise understand the caution than as applying to all debts contracted for the officers, not authorised by written orders by or from them to the tradesmen.

absence of any express orders or guarantee by the officers, On the whole, the Substitute is of opinion that in the they are not liable for the pursuer's claim. There may be a degree of blame on their part in not having more strictly complied with the very prudent regulation of the War Office, and giving especial notice to the dealers supplying the mess, or in seeing that the messman either dealt in cash with them or produced discharged accounts before they paid him their periodical bills. But whatever amount of blame might be thus imputable to the officers when called to account by their superiors in the army (and the commander-in-chief has absolved them from blame), it falls far short of such culpa as could fix on them liability to which otherwise they are not at law subjected. On the other hand, the pursuer was to blame in giving credit to a person whom he must have known was only the contractor for furnishing food to others, and to con tinue this credit for a period of four months without obtaining any payment to account or giving any notice to the officers of the mess, who, his book shows, he knew were receiving the benefit of his supplies. The Substitute was informed the present is only one of many similar claims, some of larger amount; and on the whole, to a considerable extent. This fact can no wise affect the judgment to be given on the particular case, further than to induce the utmost deliberation on the part of the Court, and which it has accordingly received. It doubtless is a case of hardship in whichever way it is decided, but as there is no principle in mere hardship, the case falls to be decided by legal rule, and the Substitute can find none to ren der the defender or the officers liable for the debts of their defaulting messman.

These notes having beeen submitted to the SheriffPrincipal, he intimated his concurrence therein.

EGGS v. MARTIN; WALKER v. MARTIN.

Master and Servant.-A farm-servant is not entitled to leave his master's service, even to go to a hiring market, without leave asked and obtained, before 12 o'clock noon of the term day.

THE pursuers were servants of the defender, who was a farmer, and they sued him for their wages, which he had refused to pay them in consequence, as he alleged, of their having illegally and unwarrantably left their service. It appeared that they had left on the morning of the

term-day, without leave, the defender maintaining that they were not entitled to leave without his special permission before 12 o'clock noon. The judgment of the Sheriff explains the circumstances:In these cases the question raised is whether two farmservants, one a lad, and the other a ploughman, who left their employment about 7 o'clock on the morning of the termday, in place of leaving at noon, were justified in so doing. Though the cases differ in detail, they are both governed by the same leading principle, namely, that twelve o'clock noon of Whitsunday is the legal term, and that, if a servant is to leave before that time, he must be justified in doing so, either by express bargain, or by a custom so general and uniform that it must have been in the view of both contracting parties.

In neither of the present cases is it alleged that there was any express bargain entitling the parties to leave before the arrival of the legal term.

In the case of the lad, the reason pleaded for leaving before the legal term was, that he was going to a feeing market; and in the circumstances, had he given any satisfactory proof that that really was his reason for leaving, it would have been sufficient. But the master says he never was asked to allow the lad to leave for that purpose, and that if he had been asked to do so, he would have given permission. On the other hand, the lad (and the ploughman who happened to be present) said that he did mention for what he wanted to leave. In this conflicting state of the testimony, we must look to what followed. We find that the lad, in place of going to the feeing market he named, went off to his home, a distance of some ten miles, in an opposite direction, and so far from the market that it was impossible he could reach it in time for hiring, and that in truth he never went one step towards it. In this state of the facts, he cannot be held to have proved that he left his employment for the purpose of attending a feeing market.

The case of the ploughman is more difficult. Some proof has been led as to a custom of married farm-servants leaving on the morning of the term-day, in order to have time to remove their furniture. The proof as to this custom was scarcely definite enough to set aside the legal term, for it failed to show whether the practice was one existing as of legal right, or whether it existed as a matter of privilege granted by the old master to oblige the servant, and-as much as the servant-the new master, and had thus its origin merely in that feeling of mutual good-will without which the relation of master and servant becomes nothing except a source of annoyances. But such as the custom was, the pursuer did not prove that it was applicable in his case; which was peculiar, for though he was a married servant, he lived in the bothy and his family lived at a distance, and he was to all intents and purposes, in so far as concerned his master, an unmarried servant. Thus he also has failed to prove a valid excuse entitling him to leave before the expiry of the term of his employment.

There were two minor points raised in the second case. Upon the first of these, as to the lawfulness of an order that was given, I need say little, except that the order was apparently quite a legal order, and that nothing was proved

The

in this case to show that its nature was unlawful. second of these minor points was, whether the wages should be £5 or £5 10s, and on it I think the balance of the evidence is with the servant.

The result of my opinion on the main question being that neither the lad nor the ploughman have proved that they were justified in leaving before the legal term, they must submit to some deduction from their wages. From the wages of the former I propose to deduct 2s, and from those of the latter 5s, together with expenses. In giving this decision I have to add that I have been much guided by the circumstance that similar decisions have already been pronounced in the Sheriff Courts of Forfarshire and Perthshire (Scottish Law Magazine, N. S., Vol. ii., p. 32). Act. CROCKATT.

Alt. FALCONER.

9TH JULY, 1864.

SHERIFF COURT, PERTHSHIRE-PERTH. (SHERIFFS E. S. Gordon and DR BARCLAY.)

JOHN M'MILLAN v. JAMES READDIE, Jun.

Personal injury — Reparation.—Damages awarded før injuries sustained from defective machinery.

THIS was an action of damages for injury sustained by the falling of a travelling crane, the same as resulted in the death of a workman, as reported on page 93 of Vol. II. of these Reports (New Series). The action also concluded for damages arising to the pursuer of the present action by reason of the fall of a Derrick crane which was substituted for the crane which had previously broken down, and by which second fall the present pursuer suffered the more severe injury. The following Interlocutors were pronounced:

Perth, 21st April, 1864.-Having heard parties' procurators, and made avizandum with the cause, Finds, under the first conclusion of the summons, First, as matter of fact, Finds that the pursuer, John M'Millan, was employed as a labourer or quarrier, in the service of the defender, upon a moveable or travelling crane at the quarry of Newhouse; Second, that on Satur day, the 30th Nov., 1861, whilst at his usual employment on said crane, he was, by the breaking of part of the staging serious bodily injuries, in consequence of which he was an thereof, thrown down into the quarry, whereby he sustained inmate of the Perth City and County Infirmary from said date until the 5th of December following, and was, in all, about six weeks unable to work in consequence of said injuries; Third, the fault of the defender, in not having the same in a proper that the breaking down of the said staging was occasioned by and sufficient state to bear the weight put upon it on the sail occasion, and not in consequence of any blame or fault of the pursuer or any of his fellow-workmen; therefore Finds, es matter of law, that the defender, as the employer of the par suer, and by whose orders and for whose benefit the said stag ing and crane were constructed and used, is liable for the ca sequences resulting from the fall thereof; assesses the pursuer's damage at £20, and for that sum decerns.

With reference to the second conclusion of the summers Finds that the pursuer did, on the day libelled, sustain severe injury whilst working at a Derrick crane, in the defender' service, by the loosening of one of the handles thereof, causing him being struck on the forehead by the other handle, at whic he was at the time working; but finds it not proved as libelle that the said injuries were occasioned "by the fault, culpabi negligence, or carelessness of the defender or others for whom he is responsible, in consequence of the said Derrick cran being insufficient, unsound, and defective;" therefore, assoilles the defender from the second conclusion of the action: Find clusion of the action, and the defender to expenses under th the pursuer entitled to expenses incurred under the first con second conclusion of the libel, and remits the account to the auditor to tax, and decerns.

NOTE.-The Substitute refers to the observations made by the Sheriff and himself in the previous case at the instance Cameron against the same defender, where damages wer awarded because of the death of a workman engaged with th pursuer at the time of the breaking down of the larger crane There appears no distinction between the two cases to occasion any other result, and so the amount of damages is the onl matter for decision.

As to the second ground of action, there is contradictor proof, but the preponderance is in favour of the defender that the handles, when the crane was put up, were proper fixed by iron pins, which the pursuer or the other workme superseded with others of wood. It is not clear that there such a decided superiority of iron over timber as to render former entirely proof against accidents of the same kind. Th pursuer had experience in such machinery, and it was his dut to ask for proper fixtures, and his privilege to refuse worki unless supplied with what he must have known was essentia

years.

children in G. could not be added to the residence of the husband, so as to eke out a residential settlement of five Reversed on appeal—and held that a residential settlement may be acquired by a wife and children by combining the residence of the husband and that of the wife, so as to complete the statutory period.

THIS was an action between the parishes of Govan and Lochwinnoch, to determine the settlement of Janet Boyd or Shedden, widow of Thomas Shedden, and her children. The following joint minute was given in, as containing the facts of the case, and on which it was agreed to take judgment:

Parties agree to close the record on the subjoined mutual minute

The pauper, Janet Boyd or Shedden, is the widow of Thomas Shedden, who died in Horslethill, in the parish of Govan, on 18th September, 1859, and the other paupers, John, Hugh, Margaret, William, and Alexander Shedden, are their lawful children, who are in pupilarity. The said deceased Thomas Shedden was born in the parish of Lochwinnoch.

At the date of the death of the said Thomas Shedden, he had resided in various places in the parish of Govan from Whitsunday, 1855, or for a period of four years and four months. Prior to coming to reside in the parish of Govan he had resided in the parish of Barony for about seven months, and prior thereto he had resided in the parish of Kilcolmonell for many years. He had thus no settlement by residence available to him at his death, had he become a pauper.

The said Janet Boyd or Shedden, with her family, continued to reside in the parish of Govan from the date of her husband's death on said 18th September, 1859, till February, 1862, and during that time maintained her family without having had recourse to begging or apply ing for or receiving parochial aid.

In February, 1862, she removed to Barony parish, and soon thereafter became chargeable as a pauper for herself and family. The pursuer has relieved the parish of Barony of her and her family's maintenance, reserving his recourse against the defender; and the present action is raised to determine the liability for the maintenance of the paupers as between the pursuer and defender.

Parties' procurators were thereafter heard, and the Sheriff-Substitute pronounced the following Interlo

cutor:

Having considered the closed record, joint minute for the parties, No. 3 of process, and heard parties' procurators thereon; in respect of the facts ascertained by the said joint minute, and for the reasons assigned in the subjoined Note, Finds that the legal settlement of the pauper is in the parish of Lochwinnoch: Therefore repels the defences, and decerns in terms of the conclusions of the libel: Finds the pursuer entitled to expenses.

NOTE. The paupers are the wife and the pupil children of one Thomas Shedden, who was born in the parish of Lochwinnoch, which is here represented by the defender, and who died in the parish of Govan, which is here represented by the pursuer, on 18th September, 1859, after having resided in the latter parish for the period of four years and four months continuously. The paupers resided in the parish of Govan from the date of the death of Thomas Shedden-the husband of the one and the father of the others-continuously, and without recourse to begging or parochial relief, down to February, 1862, when they removed to the Barony parish of Glasgow, and soon afterwards became chargeable there.

It is thus indisputable that, at the time of his death, the

deceased Thomas Shedden, by his residence of four year four months in Govan, had lost any residential settleme parish, and at the same time had not acquired a settle might have possessed prior to his taking up his abode it by residence in the parish of Govan itself. All that rem to him, therefore, at that period was his birth settle which was in the parish of Lochwinnoch. It is equally c that, when he died, the settlement of the present pau had his death left them proper objects of parochial relie his widow and lawful children-was in the same paris! would have had an immediate claim for aliment on that

Their pauperism, however, did not occur until a consid time after Thomas Shedden's death. And now that the claims relief from Lochwinnoch, it is contended by that of Govan, which is advancing the requisite aliment to that the paupers have acquired a residential settlement parish of Govan, because their father's residence of four and four months, and the period of their own subseque dence in that parish, constitute together a period of cont industrial residence of upwards of five years, which e the paupers to such settlement.

it is thought that the plea of Lochwinnoch is wholly o to the principles of the Poor Laws, and rests entirely fallacious analogies, derived from the phraseology whi been occasionally employed by lawyers in expounding laws.

The question thus raised is both new and important.

A settlement must either be original or derivative. right to parochial relief rests exclusively upon certain leg enactments, and the Poor Law Statutes make no provision for any settlement except of the former kin the benignity of the common law, as applied to the a stration of the Poor Laws, has introduced derivative ments, to obviate the unnatural separation of husban wives, and of parents and children.

The only two grounds of original settlements are-t of the pauper's birth, or the fact of his personal residen The only grounds of derivative settlement are-man parentage.

The Sheriff-Substitute knows no other ground of settl applied to their administration, to warrant a claim to nor can he find anything in the statutes, or in the pr ment neither original nor derivative-neither founded sonal residence alone nor on marriage or parentage a partly derivative (i.c., founded on the residence of t husband and father of the paupers, and admittedly ins of itself to confer a settlement) and partly original (i.c., f on the personal residence of the widow and children, a insufficient of itself to confer a settlement). In s derivative settlement; but there has never yet been pauper may have an original settlement, or he may nised a settlement partly derivative and partly origins theory on which the plea maintained by the defe founded originates in the dicta of certain of the judge Court of Session, and especially of the late Lord Justic Hope, according to which the use of the terms "de settlement" and "settlement by parentage" was repad unknown to the law of Scotland; and on the suppositi such was the case, it was farther argued, on the stre other dicta, that the acquisition of a residential settler a wife and pupil children rested solely on the legal p tion that the residence of the husband and father residence of his wife and children, and that from th lowed, as of necessary consequence, that, on his dying period of industrial residence, short of that required statute for the acquisition of a settlement, his wife a dren were entitled to add to his industrial residencehe had been in cursu of acquiring a residential setti the derivation of their own industrial residence in th parish subsequent to his death, to the effect of complet period of residence required by the statute for the acq of a settlement.

It appears to the Sheriff-Substitute that the terms " tive settlement," settlement by marriage," and "set by parentage," though certainly not to be found in th Law Statutes, are in themselves both convenient and jectionable, and there is no doubt that they have be familiar to Scottish lawyers; at all events, the pritr which they give expression was authoritatively recogn given effect to in the judgment of the House of reversing that of the Second Division of the Court of S