them away after the trial and conviction of O'Neill per aversionem, and that since that time the cloth in question, which formed part of the embezzled articles, had never been seen: Finds that in the receipt book produced, kept by the pursuer, there is written across the receipt signed by the officer Selkirk, on the 23d January, 1861, for the piece of merino in question, the word "lost," and the pawn-ticket for the same is also produced, bearing the "No. 453, Jan. 3, 1860, owner and pledger, Ann King, High St., 8s 5d:" Finds that in the Glasgow Police stolen property book, excerpts from which are produced in process, there is entered under date 24th Jan., 1861, five yards coburg and a piece of lining, as coming from the pawn office William Scouller, Saltmarket, and bearing to have been given up to Mary Lawrie, residing at 14 Princes Street, and signed with her mark: Finds that in the charges made against Roseann O'Neill she was inter alia charged with stealing "eight yards or thereby of coburg cloth," and that in the police stolen property book above referred to, there is entered "a green coburg dress piece," and bearing to be given up to Roseann Cassiday, residing in East Clyde Street, as the owner cr claimant: Finds it proved that the "eight yards of coburg cloth," contained in the charge against Roseann O'Neill, were pat by the pursuer into the hands of Selkirk, the police officer Laving charge of the case, who is not now in the police estabshment, and were given up by him to the witness M'Whannel, the custodier of stolen property in the police establishment, by whom the different articles were given up to the parties claiming them, who signed the receipts for the same in the stolen property book before referred to: Finds that it would appear that some confusion had taken place in the Police Office between the eight yards of merino in question in the process, and a piece of five yards of coburg given up to Mary Lawrie, and that the eight yards of merino has either been lost or given up in the confusion of the officers giving back articles to a wrong party: Finds that Mary M'Lachlan was the real owner of the merino, and as she had not got it back from the pursuer, with whom it had been pledged, she brought an action against him efore the Justice of Peace Court, and got decree against him fr 20s as the value thereof: Finds it proved by the pursuer that he wrote the word "lost" across the receipt in his receipt k for the merino in question after he had been told at the relice Office that the merino had been claimed and given up the Police Office: Finds it proved that the merino cloth in estion was delivered up at the Police Office to some wrong arty, and that without any written order or authority by the magistrate who tried the case, as required by the Police Act: ds, in point of law, that the officer Selkirk, and the other Sicers in the police establishment, who gave up the merino question to a wrong party without any written order or thority of the magistrate who tried the case, having been the employment of the police establishment under the defener, and whose orders they were bound to obey, he (the defenris responsible for their acts, both under the Glasgow Police et and at common law, therefore adheres to the Interlocutor der review, and in respect it is now admitted that the erino in question has either been lost or given up to a wrong arty, so that the order to deliver it up has become a factum prestabile, decerns against the defender in terms of the altertive conclusion of the petition, and finds the pursuer entitled expenses, to be taxed on the lowest scale for the Ordinary Art, and remits the account thereof when lodged to the tor to tax, and decerns.

NOTE-This is rather a hard case for the defender, as perintendent of the Glasgow police, who, by the result of it, dade responsible for the consequences of some confusion on part of some of his subordinate officers, in allowing the ce of merino in question to be taken away by the wrong rty, although he himself personally had apparently nothing atever to do with the matter, and the article had only been rmitted with officially by his subordinates in office. The take, too, was one which was extremely likely to occur in ffice where such an immense quantity of stolen articles daily, as in the Police Office of Glasgow. But still, as pursuer was compelled to pay the value of the article to true owner of it by the judgment of the Justice of Peace rt, he is fully entitled, if he can, to seek indemnity from party who may be legally liable.

Le officer Selkirk, who was the active party in fault, is not in the Glasgow Police, and is said to have gone to America. ere can be no doubt that the defender, as the head of the ce and the party who, under the Police Act, appoints all

the subordinate officers, must be held legally responsible for any losses which may occur through the fault or omissions of any of the officers in the establishment of which he is the head. In addition to this, there are two particulars in which the conduct of the defender, after he was personally brought into contact with the matter, which appear to substantiate the pursuer's claim against him. In the first place, there appears to have been a certain amount of laxity pursued in the Police Office in the mode in which goods, alleged to have been stolen, and which have come into the hands of the police, are given back to the owners or allowed to be taken away by them. This appears not to be done by a warrant or order from the sitting magistrate who tries the case, as required by the Police Act, nor even by a written order from any party whatever. It appears that the claimants for stolen goods are just taken into a room adjoining the Court Hall, where the stolen goods are lying together on a table, and each is desired to pick out his or her own property, and to take them away. There is no doubt that this method is calculated to shorten matters and expedite business, but it is very likely to be attended with the risk of delivering up articles to wrong parties, particularly considering the unscrupulous characters who sometimes are claimants for goods on such occasions. In the next place, when the present action was brought in this Court, concluding for delivery of the merino or its value, as ascertained to be only 26s, the defender not only did not admit or consign anything, but averred on record that the article had been given up to the true owner, after the trial, in common form. Had he consigned the money, which was so trifling, in limine, the Sheriff would at once not only have not found him liable in, but entitled to, expenses; at least subsequent to the consignation if the litigation went on. Instead of doing this, he persisted in the allegation of the cloth having been delivered up to the true owner, and joined issue with the pursuer in proof on the point. So far from establishing that the merino had been given up to the true owner, the proof clearly shows that it had been given up by the police to some wrong party, and that circumstance also renders the defender liable in expenses. Had the case been one for the value of the article, or damages only, the Small Debt Court would have been the proper form for it, but as the case was one, perhaps unavoidably, for delivery of the article or damages, to meet the alternative of the article casting up after all, it became necessary to bring the action in the ordinary Summary Court. Act. JAMES GALBRAITH. Alt. J. L. LANG.

26TH JULY, 1864.

SHERIFF COURT, PERTHSHIRE-PERTH.
(SHERIFFS GORDON AND BARCLAY.)

NAPIER v. ROBERTSON. Master and servant-Proof-Parole-Presumption.-A farm-servant sued his master for wages. The master, in defence, stated that he had payed a sum upwards of £13, had taken no receipt, but offered to prove payment by parole. Objected, that parole proof could not be admitted in payment of a sum above £8 6s 8d. Circumstances in which a proof by parole before answer was allowed by the Sheriff-Substitute, and adhered to on appeal by the Sheriff.

THE pursuer, a farm-servant, on 5th December last instituted an action against the defender, his former master, for £15 10s, as wages from March to Martinmas last (old style), under deduction of 30s received to account. In defence, it was stated, that the agreed on wages were £15 only. The pursuer's wages were arrested in the defender's hands; but, on 27th November last, after the arrestment had been loosed, and the defender had been informed that he was in safety to pay

the sub-vendee, as regards the 251 bolls remaining undelivered of the 300: Finds, in point of law, first, that the presentation to a store-keeper of a delivery order in favour of a purchaser for goods lying in the store in name of the granter of the order, operates as a transfer of the property so as to deprive the vendor of his right to stop, and this a fortiori if the storekeeper has partially implemented the order, although no transfer be made in the books-Bell's Com., Vol. I., pp. 184 and 213; second, that by granting such delivery order the original vendor makes himself a party to the sub-sale and is barred, after presentation and acceptance of the order, from stopping in transitu as against the subvendee on the failure of the vendee, in the same manner as a consigner is barred from stopping after his consignee has indorsed a bill of lading for onerous consideration to a bona fide third party, even though the indorsee knew at the time that the consigner had not received payment for the goods Addison on Contracts, Vol. I., p. 307, and Ross's Leading Cases (Commercial Law), Vol. II., p. 144; but, third, that this doctrine suffers an exception if it can be shown that the sub-vendee has not acted in bona fides-if, for example, he either gave no sufficient consideration to the vendee, or knew him at the time of the sub-sale to be insolvent, or had been made acquainted with any circumstance which ought in fairness to have prevented his taking the goods out of the custody of the original vendor, Addison & Ross, ut supra: Finds that the defenders do not substantially dispute these legal principles, and rest their defence mainly on the averment that there was "no bona fide and completed contract of sale between Bertram and the pursuer at the time when the delivery order libelled on was granted and countermanded: Finds, however, that the facts elicited by the proof do not establish any want of bona fides on the part of the pursuer, or any conspiracy between him and Bertram to defraud Athya & Co.: Finds, on the contrary, that the proof instructs that the pursuer bought, and in good faith paid for, the 300 bolls: Finds that, consequently, no ground has been made out for allowing the defenders, Athya & Co., to defeat their own act, through which a completed transference was obtained by the pursuer, or to shift the loss arising from the bankruptcy of Bertram from their own shoulders to those of the pursuer: Therefore, and under reference to the annexed Note, repels the defences and decerns against the defenders in terms of the alternative conclusions of the summons, there being no denial in the closed record that the sum concluded for as the value of the 251 bolls, if they are not delivered, is a correct sum: Finds the defenders liable respectively in the expenses occasioned to the pursuer by their separate opposition; allows an account of said expenses to be given in, and remits the same to the auditor to tax and report-reserving to the defenders, Hugh Ritchie & Co., whatever claim of relief they may have against the defenders, John Athya & Co.

NOTE. This is a case of considerable nicety, and one which requires minute attention to a somewhat complicated state of facts. The real turning point is whether the transaction between Bertram and Hay was a genuine and fair sale by the one and purchase by the other. The contention for the defenders, Athya & Co., is, that there was either no sub-sale at all, or that, if there was, it was collusive and fraudulent. To arrive at a just solution of the difficulty thus raised, we start with the fact that Athya & Co. had themselves sold to Bertram a large quantity of wheat which lay in Ritchie & Co.'s store. The terms of that sale, according to the invoice No. 13/1, were "cash against delivery within one month;" but for a certain portion of the wheat, amounting in value to £850, the sellers had consented to take, and had got, Bertram's acceptances at one month. They held, therefore, the wheat to his order. They knew that he was anxious to re-sell it as fast as possible, and they also knew that the pursuer was an intending purchaser, for, on the 17th August, they wrote to Bertram the letter No. 21/2, in which they say, "We could not make 25s from Mr Hay for your wheat. He is writing to you direct to-day with an offer." It follows from this that the pursuer's letters of that date, in Nos. 22 and 24, consenting to take the 300 bolls on the terms therein stated, were written in the knowledge of Athya & Co., and the letters themselves bear the marks of being well-considered answers to the pursuer's letter of the 15th August, No. 12/3. On that day Bertram paid into his bank, at Newcastle, the bill he had drawn on

the pursuer for the price of the 300 bolls, but the pursuer gave his acceptance only under limitation, in conformity with his own letters of the 17th. Bertram had not stopped at the time the bill was accepted and returned, but it is not disputed that in consequence of Bertram's subsequent failure the pursuer was obliged to retire the bill at maturity, and that if he does not get the wheat, he is out of pocket to the amount of its value. The reason why the delivery order was not in the pursuer's hands till the 21st August was, that the managing partner of Athya & Co. was from home, and only returned on the 20th. But why was a delivery order given at all! John Athya has deponed, in explanation of this--"It was in con sequence of letters received from Bertram that I gave the pursuer the delivery order." Now, although these letters have not been recovered, there can be no doubt that they intimated the sale of the 300 bolls; and it is proved otherwise, as has been seen, that Athya & Co. knew previously of the negotiations which were then going on for a sale. Moreover, they wrote to Bertram two letters (both in No. 16) on the 21st August, in the first of which they say "We gave Mr Hay an order per your account to-day of 300 bolls, 240 lbs, from the 1504 boll lot;" and in the second, "We told Mr Hay no particulars about the 300 bolls." So far as we have gone, therefore, we have satisfactory evidence both of a bona fide sale by Bertram to the pursuer, and of Athya & Co.'s knowledge of it. But then comes the fact, on which Athya & Co. found strongly, that before giving the delivery order (No. 13/8), John Athya wrote across it the words "no sale," to which the pursuer made no objections. The pursuer's expla nation of this is as follows:-"I saw the defender Athya on 21st August in the Corn Exchange. I walked up to his stand and asked him if he could give me the delivery order for 300 bolls of Bertram's wheat. He said he had been from home, or I would have got it two or three days before, and he then wrote it, and gave it to me. Not a word passed as to whether there had been a sale or no sale betwixt me and Bertram. The words "no sale" were written on the delivery order by Athya, because there was no sale as between him and me; at least, I understood that was the reason, as knew of no other." Unfortunately, John Athya gives quite a different account of the matter. He says "I asked the pursuer in the Corn Market, before I gave the delivery order whether he had bought the wheat from Bertram, and what price he was paying for it. He paused a considerable time and then said there is no price fixed yet; I have not ye bought it. I said, then there is no sale between you, an he said there was no sale. I then wrote the words 'n sale' across the face of the order." On these contradictor statements it must be remarked that the defender's, Athy is the more improbable, seeing, in the first place, that th only pretence on which the pursuer could ask a deliver order at all was, that there had been a sale to him, so that, as the real evidence instructs that there was, there no conceivable reason for his denying or concealing it; an seeing, in the next place, that as the delivery order unde the provisions of the Stamp Act of 23 Vict., cap. 15 (Schedul voce "Delivery Order,") would have required to be stamped had it proceeded on a sale by Athya & Co., as owners, the pursuer, while it required no stamp as a sample order deliver wheat which had been previously sold, it was natum for Athya to write on it the words "no sale," to show the none had taken place as between Athya & Co. and the pursue and thus to account for the absence of a stamp. But furthe whatever meaning Athya & Co. might attach at the time the words "no sale," the fact remains that they voluntari parted with the delivery order to the pursuer, that he proceede to make use of it, and that he obtained it for onerous co siderations. The defenders, however, pleaded in addition the debate, though the plea is not in the closed record, the even although a sale by Bertram to the pursuer had be made out, if the pursuer knew, as they contend he did at t time of obtaining the delivery order, of any circumstance, su as Bertram's insolvency, which put him in mala fides, ought in fairness to have prevented his taking the order, granters were entitled, notwithstanding of any rei intervent to countermand it and hold it as cancelled. This may be correct enough proposition in the abstract, but its applicati to the present case is based upon too narrow grounds. rests mainly on the fact of the pursuer having received fr Bertram, on the forenoon of the 21st August, before he Athya, the telegram No. 12/1, the contents of which are

to the pursuer the balance of wages due to him, he paid to the pursuer, in cash, £13 2s 6d as in full of wages, less £1 10s formerly paid to account, and 7s 6d allowed by the pursuer for absences. He also stated that it was the universal practice in Perthshire, or at least in the district in which the defender's farm was situated, to pay servants', and especially farm-servants', wages without asking for or obtaining a written receipt for the money paid. The record was closed on a short minute. Parties did not ask a hearing, and both parties were allowed a conjunct proof.

The pursuer appealed. For the pursuer it was pleaded that the payment alleged in defence, being upwards of £8 6s 8d, could be proved by the oath or writing of the pursuer only, and that the proof by witnesses allowed by the Sheriff-Substitute to instruct payment of a sum of upwards of £8 6s 8d was incompetent. For the defender it was answered that it is not the practice to ask or obtain receipts from farm-servants on the payment of wages, and the pursuer is entitled to prove that such is the general practice, and also to instruct the fact of payment by parole proof. The tendency of recent legislation, as well as the practice of our Courts, has been to extend the application of proof by parole.

The following Interlocutor was thereafter pronounced: The Sheriff having heard parties on the pursuer's appeal, and made avizandum with and considered the process, recalls the Interlocutor appealed from, and, before answer, allows the pursuer a proof of facts and circumstances tending to prove the amount of wages claimed by him, and that the same is resting-owing by the defender, and to the defender a proof of facts and circumstances averred by him, and tending to prove that he paid to the pursuer all the wages which he earned, and with these findings dismisses the appeal.

NOTE.-The Sheriff has felt great difficulty in disposing of this case; and the more so as his judgment, not being subject to review, cannot be put right, if not well-founded. The general rule is, that payment of sums above £8 6s 8d cannot be proved by parole evidence; and the exceptions from this rule are very few. In the case of Stewart v. Gordon, 17th February, 1831, the Court appears to have held that a practice of payment, without taking written acknowledgments in a special class of transactions, might lead to parole evidence being admitted. It is notorious that the usual course in regard to the payment of servants' wages-particularly domestic and farm-servants-is that, when such wages are paid, no written acknowledgment is taken. In the case of Barnett, 16th July, 1840, II. D. 337, it was held that there was a presumption in favour of the payment of tavern bills at the time the furnishings were made: it was called a presumption of practical life. The same view may be taken in regard to the payment of servants' wages. A similar presumption appears to exist in the English law ("Smith on Master and Servant," p. 120). The tendency of modern practice is to admit, and not to exclude, parole evidence. The Sheriff has changed the wording of the Interlocutor, so as to impress upon the pursuer the duty of rebutting any presumption of payment, and he has allowed the proof before answer, so that the competency of sustaining parole evidence of payment may not be finally determined until all the facts of the case are disclosed in the evidence, and can be considered as a whole. Act. WILLIAM MACLEISH, Perth. Alt. THOMAS SOUTAR, Crieff.

29TH JULY, 1864.

SHERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON, Bart., AND VEITCH.)

R. T. MACFARLANE V. THE PROCURATORS OF HAMILTON. Procurator-Admission.-A private voluntary society of Procurators before a Sheriff Court have no power to

make bye-laws making it a condition that before admis sion candidates pay a sum in name of entry-money, of to support a library.

THE pursuer was a procurator at Glasgow, and practised before the Courts there. He applied to be admitted to practise before the Court at Hamilton, a division of the County of Lanark. It appears the procurators, or some of them, have of themselves formed a society called the Society of Procurators, the title to the membership of which appears to be that the party apply. ing must be a procurator, and pay £10 ostensibly towards the formation of a library. The pursuer's petition was ordered to be intimated to the society, and they objected to his admission because he had not deposited the £10, and this the petitioner declined to do. The SheriffSubstitute, however, ordained the petitioner to consign as deposit the £10. The petitioner appealed, and parties' procurators having been heard, the Sheriff pronounced the following judgment:—

Glasgow, 29th July, 1864.-The Sheriff having considered this application, along with the appeal for the petitioner, against the last Interlocutor of the Sheriff-Substitute, ordering consignation of the sum therein mentioned, and having at the different diets fully heard the petitioner, and also Mr Gebbie on behalf of the Society of Procurators at Hamilton, on the merits of the application and whole process, Finds that the present is an application to the Sheriff by the petitioner, a member of the Faculty of Procurators of Glasgow, and a Procurator before the Sheriff and other Courts at Glasgow, pray. ing to be admitted a Procurator before the Sheriff's Court at Hamilton: Finds that the petition was appointed by the Sheriff Substitute to be intimated to the Society of Procurators practising before the Court at Hamilton and answered them: Finds that the said Society of Procurators object to the petitioner's right to be admitted a procurator before the Court, as he had failed to pay or deposit a sum of ten pounda towards the formation of a library, as required by the bre laws of the society, and which had received the sanction of the Sheriff-Substitute: Finds it admitted by the pursuer that he has not paid or consigned the said sum, and it is denied that he is bound to do so, or that the Society of Procurators at Hamilton have any right to pass such a bye-law, to be binding on the petitioner or parties not members of the society: Finds that the bye-law referred to, imposing a pay ment of £10 by each practitioner before the Court for a library fund, was passed in February, 1863, and it is not alleged by the respondents that any such payment was ever exacted or asked before from any procurator before the Court Finds that it is not alleged that the Society of Procurators at Hamilton is an incorporated body having any.charter, or tha they are associated either by Act of Parliament or under an public authority, and from the printed copy of the rules and regulations produced, it appears that the society was on formed by a resolution of the procurators then practising befor the Court at Hamilton, passed on 5th December, 1862: Finds by Act of Sederunt, 10th July, 1839, it is enacted and declare by section 157 that "no person shall be admitted to practis as a procurator in any Sheriff Court unless he be a Writer the Signet or Solicitor before the Supreme Courts, or har been admitted a procurator, and have practised as such befa some Sheriff Court;" "be twenty-one years of age, and regularly admitted by the Sheriff without prejudice to t legal rights of chartered bodies:" Finds, in point of law, th as the petitioner comes under the qualification last quoted the Act of Sederunt, having been already duly admitted a practising as a procurator before the Sheriff and other Cour in Glasgow, and as the respondents are not a chartered bod whose rights his admission as a procurator before the Co at Hamilton would interfere with, he is entitled to be admitt as a procurator before that Court without any other qual tion or any money payment to the said Society of Procurat Finds that in all those cases in the books where such exclus chartered bodies for the most part fortified by long rights have been sought to be maintained, it has been Finds that as no such immemorial usage is here alleged, a