in the fees or commission which may be payable to him if appointed trustee in this sequestration. Farther, that the said Robert Galt, Senior, is named as mandatory to act and vote for them in the claim for the said Crichton, Pollock & Co., and other creditors, whose claims are hereinafter objected to. Moreover, that the said Robert Galt, Senior, for the purpose of furthering the interests of his said son, as well as his own, personally waited upon all the creditors who supported the election of the said Robert Galt, Junior, as well as several of those who supported the election of this competitor, at their usual places of business, and canvassed for their votes, even though informed that these had been already promised to this competitor, and upon the representation that he was a Justice of the Peace and a much more respectable and trustworthy person to be trustee than this competitor, and that it would save the creditors all trouble in going in search of a Justice elsewhere, he prevailed upon the said Crichton, Pollock & Co., and the other creditors whose claims and votes are hereinafter objected to (some of whom had previously pledged themselves to support the election of this competitor) then and there to make out a statement of their claims upon blank form of affidavit which he carried with him and which were signed before him as magistrate, and at same time the said Robert Galt, Senior, procured the mandates in favour of himself and son to be subscribed by the deponing creditors. In these circumstances this competitor objects to the oath of the said Crichton, Pollock & Co., and the creditors after-mentioned, in respect of the said Robert Galt, Senior, having disqualified himself by his actings and relationship from competently taking any depositions by the creditors in question, and that the mandates granted under the circumstances were void and insufficient for the purpose of voting. 2. The vote of the said Robert Galt, Junior, as mandatory of James Gemmill, wholesale tea merchant, Glasgow, is objected to in respect of the reasons stated in the preceding objection. 3. The vote of the said Robert Galt, Junior, as mandatory of Elliot, White & Co., soap merchants, Glasgow, is objected to in respect of the reasons stated in the first objection. 4. The vote of the said Robert Galt, Junior, as mandatory of Ferguson & M'Laren, soap manufacturers, Glasgow, is objected to in respect of the reasons stated in the first objection. 5. The vote of the said Robert Galt, Junior, as mandatory of William Gardner, ham curer, Glasgow, is objected to in respect of the reasons stated in the first objection. 6. The vote of John D. Taylor, writer in Glasgow, as mandatory of Smith & Sharp, wholesale grocers, Glasgow, is objected to in respect of the reasons stated in the first objection. 7. The vote of the said Robert Galt, Junior, as mandatory of Wilson, Ferguson & Co., ham curers, Glasgow, is objected to in respect of the reasons stated in the first objection. 8. The vote of the said Robert Galt, Junior, as mandatory of A. & J. Allan, provision merchants, Glasgow, is objected to in respect of the reasons stated in the first objection. 9. The vote of the said Robert Galt, Junior, as mandatory of W. & J. Pettigrew, wholesale provision merchants, Glasgow, is objected to in respect of the reasons stated in the first objection. 10. The vote of the said Robert Galt, Junior, as mandatory of Neil M'Donald & Co., provision merchants, Glasgow, is objected to in respect of the reasons stated in the first objection. 11. The vote of the said Robert Galt, Junior, as mandatory of Rae & Walker, tea merchants, Glasgow, is objected to in respect of the reasons stated in the first objection. The competitor Galt lodged the following objections:1. Robert Rennie, farmer, Chapalarroch, Gartmore, county of Stirling-in respect that the deponent is the father of the bankrupt, the said James Rennie, and conjunct and confident with him; that no proper or effectual voucher of the debt claimed has been produced; that the alleged IO U's produced are improbative, defective, and incapable of being founded on in the competition; that the debt claimed is not due by the bankrupt; and that the alleged vouchers were concocted and produced collusively by the deponent and the bankrupt; that, at all events, no interest is due on the alleged debt; and that the oath, mandate, and account are not duly executed, completed, and authenticated. 2. John M'Lean, a partner of Buchanan and M'Lean, tobacconists, Trongate Street, Glasgow-in respect that the alleged bill founded on has not been produced, the bill in process bearing a different date, and falling due on another day from that specified in the account annexed to the oath; that the bill produced was granted and concocted after the insolvency of the bankrupt; that the debt is not duc, at least interest should have been deducted from date of sequestration to date when the bill will fall due; that no proper or effectual voucher of debt has been produced; and that the oath, mandate, and account have not been duly executed, completed, and authenticated. 3. James Fulton, Jun., potatoe merchant, 7 South Coburg Street, Glasgow-in respect the oath, mandate, and account are vitiated, and not duly executed, completed, and authenticated. 4. Jonathan Atkinson, a partner of Atkinson & Stockdale, soap makers, Edgar Street, Liverpool-in respect the oath, mandate, and account are not duly executed, completed, and authenticated, the latter, though held part of oath, not being signed. 5. James Miller, ham curer and provision merchant, Glassford Street, Glasgow-in respect the oath and account do not correspond in date, and the account founded on has not been produced, and that the same, with the mandate, are not duly executed, completed, and authenticated. 6. Richard Lowther, a partner of Lowther, Weir & Co., spice merchants, etc., Virginia Street, Glasgow— in respect the oath is vitiated, and the alleged account not produced, the account annexed not corresponding in date, that the mandate bears a wrong date, and the whole are not duly executed, completed, and authenticated, 7. William Polson, a partner of William Polson & Co., starch manufacturers, Paisley-in respect that the oath, mandate, and account are not duly executed, completed, and authenticated, the latter, hough held part of oath, THIS was a summary action to have the defender not being signed. 8. John Miller, flesher and ham curer, Busby-in respect that the deponent is conjunct and confident with the bankrupt; that no proper or effectual voucher of debt has been produced; that the pretended bill produced was granted without value, and never acted upon or discounted; that it is not payable to the deponent, but to his order; that the bt claimed is not due by the bankrupt, but concocted between him and deponent, and that the mandate produced is not dated or completed. 9. Joshua Buchanan, Junior, a partner of Joshua Buchanan & Son, ham curers and provision merchants, Candleriggs Street, Glasgow-in respect the account produced is vitiated in the date thereof or the docquet thereof, and the oath, mandate, and account are not duly executed, completed, and authenticated. 10. Robert Jamieson, a partner of William Jamieson & Son, soap makers, Paisley-in respect the account produced is not duly signed or authenticated. Parties' procurators having been heard, the SheriffSubstitute pronounced the following Interlocutor:Having considered the Notes of Objections for Robert Galt, Jun., accountant in Glasgow, and John Houstoun, accountant there, competitors for the office of trustee on the sequestrated estates of James Rennie, grocer and provision merchant, Nos. 107 and 109 Stockwell Street, Glasgow, and having heard parties, Finds and declares, for the reasons stated in the annexed Note, the said Robert Galt, Jun., to have been duly elected trustee on said sequestrated estates: Finds the unsuccessful competitor, Houstoun, liable in the expenses of the competition; allows an account of said expenses 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 Galt amounted in value to the sum of £350 13s 7d, and those for Houstoun to the sum of £323 4s 5d, giving the former an apparent majority of £27 9s 2d. The only objection insisted in at the scrutiny to certain of the votes for Galt was, that the affidavits on which they were founded were emitted by the respective creditors before Robert Galt, Sen., J. P., who is the competitor Galt's father, and his partner in business, and it was said that Robert Galt, Sen., waited personally on creditors and canvassed for their votes for himself or his son. This could not be held fatal to the votes of bona fide creditors; neither does there seem to be any incom. petency in the father administering the oath, whilst the mandate is granted to the son. No personal canvassing is alleged against Robert Galt, Jun.; and even though it had been, it would be difficult to hold that such canvassing disqualified, however undignified, or even unprofessional, the proceeding may be. For Galt, Jun.-JAMES ALEXANDER. ordained to repair certain buildings which had been The record was then closed, and parties' procurators having been heard, the Sheriff-Substitute pronounced the following Interlocutor: Having heard parties' procurators on the closed record, Finds that the pursuer in his petition narrates the fall of the defender's chimney stalk on his wooden stable and hay and victual house, whereby the walls of the building and the par titions and fittings were damaged, one horse was killed, three others injured, and a quantity of hay, victual, and several sets of horses' harness damaged: Finds it alleged that the fall of the chimney was attributable to the foundation thereef being too narrow in proportion to the height, and that it was for some time previously in an unsafe and dangerous condition; and, upon this narrative, warrant is craved; (1) For a remit to a skilled person to inspect the stable and other premises in question, and to report on the condition thereof, and to state what repairs require to be done to put the same in the condition they were in previous to the fall, and the expense; (2) To ordain the defender to execute the necessary repairs; or, (3) To grant warrant for the execution of these repairs at sight of an inspector, and at the defender's expense, and to decern therefor: Finds that the action, as thus laid, is relevant, and the remedy sought is competent; therefore, repels the first article in defence, which is of a preliminary description, reserving all questions of expenses; and on the merits, and under reservation of the whole rights and pleas of parties, remits as craved to Mr William T. Edmiston, wright and builder, Crown Street, Hutchesontown, Glasgow, to inspect the premises in presence of parties or their procurators, and to report as in the craving first above written, said report to be lodged within ten days, and reserves to pronounce farthes on said report being lodged. Repara NOTE. The competency of the remedy sought was dispute by the defender at the debate, and his contention was that it the pursuer's averments were well founded, he was entitled to claim damages, and that that was his appropriate and only legal remedy, but the pursuer's answer in the language ca Lord Stair is sufficient to justify the course taken. tion," says his lordship, "is either by restitution of the same thing in the same case that it would have been in if it ha remained with the owner, and this is most exact, or, wher that cannot be, by giving the like value or that which ma come nearest to make up the damage, according to the desir of the damnified." Stair, i., 9, 4. Proof was then led and concluded, and parties' proca rators having been heard, the Sheriff-Substitute pro nounced the following Interlocutor: Having heard parties' procurators on the concluded proc and whole cause, and made avizandum, Finds, in point d fact, that shortly before seven o'clock on the evening of 18t property, attached to and used in connection with his na December, 1862, a square brick chimney stalk, the defender manufactory, in St James' Road, Glasgow, fell, and part the materials of which the stalk had been composed wa thereby precipitated upon stables and a hay and victual bous belonging to the pursuer, and which immediately adjoist said stalk on the west, in consequence whereof the na wooden walls, partitions, and fittings of these premises wer broken down and injured: Finds that, in the view to early the stalk fell-proof, p. 46. John Donald, the defender's restoration, the parties, by minute No. 5 of process-amount brother, however, who was within the works at the time of under reservation of their rights and pleas-consented and the catastrophe, depoues, that there had been lightning that agreed that the pursuer's said premises should be surveyed by afternoon, but he saw no lightning at the time the stalk fell Mr William Thomson Edmiston, wright and builder, Glas-proof, p. 41. On the other hand, the two policemen, gow, and that he should execute what repairs required to be M'Gregor and M'Fadyen, who were examined by the dedone to put the same in the state they were previous to said fender, and who were both traversing the streets at the very fall, and to report as to the condition of the premises, and moment, and heard the noise of the fall, saw no lightning. what it had taken to repair them: Finds that, in terms of this Professor Grant, whose valuable meteoric registers were exminute, remit was made, and the report (No. 7) was obtained, hibited, and showed what kind of weather there was, menfrom which the extent of injury was ascertained, and the ex- tioned no lightning. Thomas Kirk, who, of all the witnesses pense of restoring the premises was found to be £37 10s 6d, examined, was the only person who actually saw and deconform to account No. 10, which sum the pursuer has paid, scribed the fall, was not asked, and he certainly never sugand to be relieved of which, and of the expenses of this pro- gested that he had either seen lightning, or that it had any cess, are now the limits of his craving: Finds that the de- thing to do with the occurrence. In fact, it was a violent fender has failed to prove that said chimney stalk fell through gust of wind, rather than an electric stroke, which appeared a damnum fatale, as has been pled in defence; but, on the to be the tendency of the defender's proof. contrary, it has been instructed that the fall was attributable to its faulty construction, in consequence of which it was unable to resist the pressure of wind which other chimney stalks in the same locality properly built, but even more exposed than the defender's, did resist: Finds, therefore, in point of law, that the defender was bound to have restored the pursuer's said premises to a condition equal to that in which they stood before being so injured; aud restoration | having now been made under said minute and remit, the defender is bound to pay the expenses concluded for; therefore repels the defences, and finds the defender liable in pay. ment to the pursuer of the charges for so restoring said premises, which amount to £37 103 6d, reserving as in the fetition: Finds the defender also liable in expenses of process; allows an account thereof to be lodged, and remits the same to the auditor to tax and report, and decerns. NOTE.-The fact of the fall of the defender's stalk was not sputed; and the extent of injury done to the pursuer's premises, and the sum necessary for reinstating them, have Est been matter of contention since Mr Edmiston's report was lodged; but if these points had been still debateable, the proof led has established them. The real discussion turned on the cause of the occurrence. At the outset, the presumption in law favoured the pursuer; a, prima facie, a chimney stalk which falls and damages Leighbouring property, on an evening, when, subject to the ane atmospheric influence, every other stalk in the vicinity tands unaffected, must be deemed faulty and insecure. This as been repeatedly held in instances of injuries from achinery, mechanical appliances, or carriages giving way; strations of which will be found in Lyon v. Lawly, 1838, 16th Sess. Cases 1188; Macaulay v. Burst, 1846, 9th Sess. Cases 45, and other cases collected in Dickson on Evidence d ed.), sect. 12, pp. 11, 12, then such a presumption falls, and Le onus of relieving himself must rest on the party fending. Eat here the defender has not assumed the burden; he ught merely to combat the pursuer's proof that his stalk as not of the imperfect description to which that proof ented; and although a damnum fatale was pled by him, he but avoided the point in probation. When that defence as forced upon him, the way the defender deals with it was adduce such evidence as would leave it to be inferred that bably the stalk was struck by lightning, and fell, or that was caught broadside by a fierce gust of wind, and went er. He has not maintained that the casualty resulted from combination of these elemental agencies. As little could he cesfully contend that it was produced by either, because has not supplied proof sufficient to warrant the one view the other. A principal witness examined by him sagaciously enough pues, that as on the night of the occurrence the wind w from the south-west, and the stalk fell on the east side, at if it had been the wind which struck the stalk and ed the fall, “I think," he adds, "the stalk would have len to the north-east, or exactly opposite side from which wind was blowing." Deposition of James White-proof, 151-The opinion of this witness was, that in the fall the « had twisted, “and, therefore, he thought it was struck Ightning." The lightning theory is not well supported; -ame witness states that there had been both thunder and tuing: but then that was the state of the weather the it before-proof, p. 34. Malcolm M'Intyre saw lightning he was going home about seven o'clock, just about the time No doubt the suggestion that the wind was the agent, if that should have been relied on, was somewhat damaged, as has been seen, by the reasoning of the witness White; still it must be considered. Generally speaking, the witnesses on both sides agree that the 18th December, 1862, was a storiny night; some of them make the wind rage with great severity, and others give it a milder aspect than perhaps it deserved. Thus the police sergeant Stewart thought it as stormy a night as the gale in 1856, which did a great deal of damage-proof, p. 48; while the witness Thomas Kirk describes the wind as blowing smartly, but nothing extra-proof, p. 14. Luckily, such conflicting opinions have found a reconciliation in the more exact and certain records of the Observatory, from which on a meteorologic question like this, an end is put to speculation, and the precise condition of the night, and the force of the wind at the very hour when the stalk fell, have been sup plied. It has been shown by the productions No. 12/1 and 12/2 that, from noon till midnight, the wind blew steadily from the west; that from 5 o'clock P.M. the gale increased in intensity; and at half-past 6 o'clock the pressure of the wind was equal to thirty-seven lbs. on the square foot; but which, by a quarter to 9 o'clock, had increased to forty-six lbs., and it rained from 7 till 8 o'clock that evening. It appears, how. ever, from Professor Grant's records that this was by no means a gale of unusual severity; because in February, March, and November, 1861, and in January and October, 1862, with the wind from the same quarter, its force was much greater, and the defender's stalk resisted and stood during them all. From the condition of the chimney, as will presently be shown, these gales might probably have had a seriously trying effect, and, perhaps, indirectly and eventually conduced to its fall; but in a city like this, where, as the records referred to prove, the prevailing winds blow from the west and south-west, it is incumbent on the owners of public works so to have their chimneys constructed as to resist a considerable pressure from that point; and all other chimney stalks, except the defender's, on the night in question did stand the utmost force of the wind as it resisted at the time his stalk fell; they also resisted its greater violence at a quarter to 9 o'clock. Such was the case; although it is a fact deponed to by the witness White, that "there were several chimney stalks in the neighbourhood of the defender's, and the defender's was not so much exposed as these "-proof, p. 34. Could it be, therefore, that because of excessive violence of wind the defender's chimney fell? That chimney stood severe gales before, and others on said night in the same locality, and more exposed than the defender's, remained secure even under severe pressure. To a different cause, then, the inquiry must turn than either lightning or force of wind. It does not, of course, follow that the wind did not overthrow the stalk; but if it did, it remains to be seen whether or not that happened because the stalk was improperly and insecurely built. The defender has stated that when he acquired his works there was then a chimney attached to them, standing on the same site, and formed part of that which fell. The chimney, according to the witness Goldie, was 70 feet high, and has a base and foundation corresponding with that height; the base at the surface of the ground was 6 feet square; the found was 20 inches deep, and consisted of four courses of brick, each projecting beyond the other till the lower of the four extended 9 inches beyond the plane of the stalk. These dimensions have not been found fault with as insufficient; but in July, 1861, the defender resolved to increase its height, and for that purpose to take down a considerable part of the stalk and rebuild on the part he left. No plan of this alteration was made, nor was there any specification prepared, and the contract for execution of the work appears to have been of a very loose kind. A tradesman named Grant, now abroad, undertook the job; he delegated his authority to the witness David son, to employ men and direct the taper which should be given to the building. Davidson depones that he fulfilled these directions, mentioning the extent of taper to the defender's brother, that he might instruct the builders, and there upon left the work unattended. A bricklayer (Ebon Smellie) and Grant's foreman, Whyte, with two labourers, constituted the operative staff. The original stalk was taken down till about 25 feet remained above the ground; from this height the addition was begun. Davidson gave the taper suited for a chimney of from 85 to 90 feet high, beyond which he says he warned the defender's brother not to carry it. The defender provided the bricks himself, which were partly taken from the old stalk. White and Smellie continued the building till it had attained a height rather exceeding 40 feet, the walls having been kept of the same thickness as at starting, which was 18 inches; when 40 feet up, White was succeeded by the witness Wilson, who depones that when he began he found the stalk off the plumb on the north corner; it had been twisted at commencing the new work; that White, whom he described not as a bricklayer but as a mason, had built the wall outward, instead of giving it an inward taper, and that he had attempted to remedy that fault by latterly building it plumb. From this point Wilson wrought at the stalk till its completion at an elevation of about 105 feet, giving it a taper of half | an inch to the yard. Davidson states that when he returned, after some interval, to the work, he discovered that the defenders had determined to carry up the stalk over 100 feet, and he saw that the taper he had given was not attended to. Wilson mentioned that nearly all the good brick had been used in the wall before he began, and, except for an outside facing of four inches, the material he used for the inner part of the wall was rubbish composed of broken bricks sent up in a creel or basket entire bricks having been slung. The witness also complained of the poverty of the lime. When finished, the square of the top was about four feet eight inches, but one of the sides was discovered to be longer than the others, which rendered an alteration on the cope stone necessary. When the workmen ceased their labour, the stalk perceptibly lay over to the east. The experiment of sawing was resorted to soon afterwards, and then, according to some of the witnesses, it stood perfectly plumb, while others depone that it still leant eastward until the very night of the gale; and so much had it been off the plumb, that it had been subject of much apprehension among the neighbours. The evidence of Davidson and Wilson conflicts with White's and the defender's brother; these latter are contradicted again by other witnesses, and the preponderance of proof supports the former. On the found and base formed to suit the original stalk of seventy feet the defender raised his addition to the increased height of 105 feet; and several of the most experienced master brickbuilders in Glasgow, who examined it after it fell, have denounced the erection as having been of insecure construction from insufficiency of scarcements for the found, and because of a too narrow base; they are agreed that for the height attained, instead of four courses of scarcements, each stepping back 24 inches, there should have been twelve, and instead of six feet of base altogether, there should have been one foot of base to every ten feet of height; that the taper should have been seven-eighths of an inch in every yard of upward building from ground to summit, whereas there had been but half-an-inch to the yard beginning at a height of forty feet. The defender examined some witnesses to justify the dimensions which had been given the stalk, and among these was the mason White, who had preceded Wilson at the building. Breckeridge, a journeyman bricklayer, who contracted for the re erection of the stalk after it had fallen, and the witness Goldie, a civil engineer, were also adduced; but the position, experience, and practical skill of the witnesses Steven, Porter, Shannon, Croal, and Johnstone, entitle them to greater weight on a point of this description, and on whose evidence the Sheriff-Substitute is inclined to depend. Besides the imperfections already noticed, it has been stated by the witnesses Forgie, Croal, and Porter that they saw considerable rents in the west side of the stalk, extending from the base, and which had a begrimed, smoked look, | indicating that the furnace fires had produced them. Forgie and Croal saw these rents about a fortnight or three weeks before the fall, and Porter saw a crack, though slight, on the same side two days after the fall. It is not much to the purpose that the defender's witnesses say they saw no cracks, and that they never heard complaints about the stalk, and felt no alarm, because superficial observers, and an absence of dread, cannot militate against the positive testimony of those who did see the rents, and of those who were alarmed, and were able to assign satisfactory reasons for being so. A chimney, then, of the kind described by the witnesses, and which had struggled to maintain its perpendicular throughout the preceding fierce gales of 1861 and 1862, must have been well prepared to succumb to that milder gale which happened on 18th December in the last-mentioned year. But it was contended that narrowness of base and objec tionable work had nothing to do with the fall; that the mass of building went over eastward from the top-the upper part, as it gave way, having kicked, in an opposite direction westward, another mass which caused injury to the pursuer's premises; and this argument seemed supported by the fact that large portions of the stalk were found lying, funnel like, still cohering. With respect to this argument, it may be remarked, that it is quite true part of the stalk went over to the east, and another part went westward, and some witnesses say, that in falling the upper may have pushed back an under part of the building, making the two parts fall in opposite directions; but it seems more probable that the stalk yielded first, not at the apex, but nearer the base-the upper parts having toppled from want of under support. And this is confirmed by the evidence of the only person who witnessed the occurrence. Thomas Kirk depones-"I was going home about half-past six o'clock on the evening of 18th December last, and when opposite the gate of Blackie & Co., publishers, St James's Road, I heard the noise of bricks falling rapidly one after another, and looking across the road to the defender's stalk from where I was, I saw that the bricks were rapidly falling out of the stalk from the side, near the bottom; then, after a number of feet had so fallen, the chimney gave a kind of swing round, the upper part falling eastward over on Mr Wylie's property, and the lower part westward on the stable in question." The witness explains that Messrs Blackie's gate was about ten feet high-he heard the sound of the bricks falling out of the stalk lower down, and they continued falling till they came above the height of the gate, and so upward about ten feet, when the stalk swung and cane down. The witness, Mrs Murphy's, evidence in some measure confirms this testimony, and oposes the defender's theory that the stalk fell in masses. She lived in an end building of a property next the defender's works-a court divided tee ments which fronted St James's Road from the buildings in the rear-and when the chimney fell, bricks from it wer hurled across the court against the back windows of the front tenements, and broke them. It may be farther o served, that Kirk having actually seen the stalk twist as i was falling, may account for White's notion that the twis was caused by lightning. On the whole, as the defender has failed to prove that th occurrence libelled was damnum fatale, and as the facts whic have been established lead to a different conclusion, the lates locutor pronounced is that only which can meet the justice this case. This Interlocutor was appealed, and parties' procura tors having been heard, the Sheriff pronounced th following judgment: Having heard parties' procurators under the defender appeal, upon the Interlocutor appealed against, and avizandum, and considered the proof adduced, and whole pr cess, Finds that this is an action for the cost of certain rep upon a wooden stable, hay, and victual house, belonging the pursuer, which had been damaged by the fall of a chius stalk of the defenders, on the evening of the 18th Decembe 1862: Finds that the fall of the chimney stalk on the parsect property is admitted, but it is alleged in defence that it damnum fatale, and through no fault of the defender or those for whom he is responsible; that the fall was owing to gale of unparalleled force, from which no building could res while the pursuer alleges that the chimney was defective structure, and too weak in proportion to its height to resist linary storm: Finds that a remit was made to Mr Edmiston, der, and two others, to examine the premises and report to the repairs that were necessary, and the report No. 7 s given in, which bears that the stalk had fallen obliquely the pursuer's property, and a proof was thereafter allowed ad taken as to the species facti in the case: Finds it proved bat, before the storm on the occasion in question, the stalk as rent to the height of several feet at the bottom, and was f the perpendicular, and had holes in the upper part of it: lads that that stalk touched the roof of the pursuer's stable, ad the upper end of it fell away from the stable, but its lower art tilted up the roof of the stable and destroyed it: Finds at the base of the stalk containing the rent was not blown wn when the upper part of it fell: Finds it proved that the alk was 102 feet high, and seven feet six inches square at the tom, and that it is usual when such a stalk is broken across wind, that one part of it falls in one direction, and the her the opposite: Finds that 12 feet of the stalk was left nding when it fell, and that the wind was blowing smartly, t nothing extraordinary, and not nearly so high as it was ✓ hours after the stalk fell: Finds that the stalk was 6 feet are, and the walls 18 inches thick at the point where it ke over and fell, and that it is proved that for seven months are it fell it was bearing off the perpendicular: Finds that chimney was too narrow at the bottom, considering its tt and the surface it exposed to the wind, and that in the rse of the building of the stalk the defender was warned it was too narrow for its height, and would be liable to down down by a high wind: Finds that the bricks in the ile of the stalk were good and first-class, and the lime silent, but the inside was more defective, and little better 1 rubbish: Finds that when the stalk was finished it was ub, but that before long it began to sway over to a side, it was far too heavy at the top from the beginning: Finds the stalk, soon after it was put up, leant so over to one that the smoke inspector brought it under the defender's *, and he in consequence adopted some means to bring it to the perpendicular, which was done, and the chimney plumb for some time after the operation of sawing was bed, but before it fell it began to lean over again: Finds the anemometer, on the evening in question, showed a sure for twenty minutes or so of 37 lbs. on the square foot, e a brisk gale gives only 15 lbs. on it; and at 8.45 P.M. evening the pressure was 46 lbs. to the square foot, when nemometer broke from the violence of the gale, but the in question had fallen two hours before that, or a quarter e 7 o'clock: Finds it proved that repeatedly during the before it fell the stalk in question had stood a gale, or a gre of from 35 to 45 lbs. the square foot, and that storms at violence are of very frequent occurrence in Glasgow, xurred five times in the year 1862: Finds that the int of damage sustained by the pursuer is not disputed; it is contended only that the fall of the stalk was oned ex damno fatale: Finds, upon the whole, that a there is considerable diversity in the evidence, it a the whole proved that the stalk in question was not rly constructed, being too narrow at the base for its t, and was originally constructed for 70 feet in height, fterwards altered to 102 feet, and that the fall was to that cause, and not any damnum fatale for which e is responsible; therefore adheres to the Interlocutor review, and dismisses the appeal. TE-The fall of the chimney stalk here which caused amage was obviously owing to the extending its height 70 to 102 feet without making any addition to the isions of strength of the lower part of it, and not to any un fatale for which the defender would not have been nsible. the signature of one of his creditors to an offer of composition, but twelve months elapsed, and no composition was paid. The creditor then raised an action for his full debt, but held that he was only entitled to the composition, notwithstanding the delay. Stamp.-The ac-ceptance of an offer of composition is an agreement, and requires a corresponding stamp before it can be founded on in an action. THIS was an action for recovery of £74 13s 2d, for goods sold and delivered between June, 1861, and January, 1862, under deduction of £3 paid to account and £20, the price of a brown mare, leaving a balance of £51 13s 2d. The record was made up by summons and minute. The defences were Preliminary-The action should be dismissed, in respect the account is disconform to the summons, otherwise the summons and account are not conform to the Sheriff Court Act and relative schedule. On the Merits-The whole averinents of the summons are denied, under the following qualifications:It is admitted that an agreement was entered into between the defender and pursuer on or about 11th February, 1862, whereby, inter alia, the pursuer agreed to accept of 7s 6d per pound on the sum of £51 13s (while, to effect a settlement and an understanding, that sum was agreed to be held as the amount due) as in full of all debt or claim the pursuer had against the defender, and discharged him accordingly; and that the defender has always been willing, and now judicially repeats his offer, to make payment to the pursuer of said agreed modified sum-namely, £19 4s-agreed to be accepted in full as aforesaid; quoad ultra, claimed absolvitor. Separatim-In the event of the said agreement not being held to be binding on the pursuer, the defender denies the averments in the libel and his liability for the sum sued for; and explained that the account was concocted and overcharged in every respect, both in quantities and prices, and many items were not received by the defender at all, and craved absolvitor, with costs. The summons in this action was dated 21st February, 1863. The defender meantime became insolvent, and was sequestrated. His trustee was, on 21st January, 1864, called by supplementary action, and he entered appearance. The record having been closed, and parties' procurators heard, the Sheriff-Substitute pronounced the following Interlocutor: Finds that it was stated at the debate for the defender that Having heard parties' procurators and reviewed the process, he did not now insist in the preliminary defence, therefore repels the same: Finds that the pursuer admits that he adhibited his signature to the production No. 7, and that the words annexed to said signature, "in my claim, being the sum of fifty-one pounds thirteen shillings," were also written by him: Finds that the said production, being a writing in re mercatoria, is valid, though not being holograph nor tested, but finds that it seems to be of the nature of an agreement requiring a stamp before effect can be given to it judicially, and appoints the defender either to procure the same stamped accordingly, or at all events impressed with the stamp provided by the 13th section of the 16 and 17 Vict., cap. 59, in the event of the Commissioners of Inland Revenue being of opinion that the writing is not chargeable with stamp duty, and sists process fourteen days to permit of this Interlocutor being obtempered with certification. |