-The failure of the railway company's servants at urgh to attend to their duties occasioned the unforncidents out of which this action has arisen.

roof has shown this sufficiently. In the first place, it that the pursuer and his acquaintance, Scott, reached ailway station so late that the train was on the eve of before they purchased their tickets or appeared on the They may or may not have had good reason for te, for that does not appear; but it was one of the rules that passengers should have had their tickets tat least five minutes before the time stated for startthat was a useful and necessary rule, it was in the the defenders' servants to have enforced it, by issuing after that, and thus they would have avoided what In the next place, by reason of this irregularity, of the carriages of the train had already been locked, ater, the guard, had examined passengers' tickets e pursuer and his friend arrived, but when they did e failed to examine their tickets, although he was under the railway rules, before leaving a terminal to be most particular in this respect (No. 14, § 13, p. | e and the station-agent were also culpable in perthe pursuer and Scott to travel without having the icket for the carriage in which they rode (No. 14, 10). And in the third place, the defenders' servant, was to blame for opening the locked door of a wrong and admitting the pursuer and Scott, without ascerby what description of carriage they were entitled to nd without seeing that they possessed proper tickets. Manson excused himself for this omission, by saywas not his business, because he was a pointsman; wore the railway uniform-he was in possession of a door-key-he was on the platform assisting in the ions for starting, and interfered with the guard's duty; if he did not himself examine the tickets, he was have acquainted Hunter, that he might have

are acts of inattention to rules established by the themselves, the observance of which was calculated at passengers falling into mistakes about the carriages ich they might enter, and so save them from rough tand merciless extrusion at the hands of other serthe company at the ultimate terminus, who might be of the circumstances, and inclined to regard as a accidental presence of passengers in higher-classed than they had paid for or intended to travel in. But tended that closed carriages and open carriages are, eir construction, easily distinguishable; and as the purcket bore on its face that he was to travel in an open it was his duty, being late in arriving, at once to to the proper description of carriage, and he was in not doing so. Argument, however, is untenable. It is proved that ages composing the train had only two titles painted "First Class" and "Third Class." Some of the carriages were enclosed externally by wood-work dows, but the interior compartments were open from ; others were unenclosed externally, and into one appears the pursuer and his friend should have gone. rence between third-class carriages would be very de by the defenders' servants or by passengers who velled on the line, but to strangers it might not have perceptible. In fact, it is within the experience of Iway travellers, that on some lines there happen much arity even in carriages of the same class; old first-class for example, presenting appearances of inferiority to obvious, as aptly enough to mislead inattentive pasinto the belief that they belonged to a lower grade. Helensburgh line errors had often occurred, and of kind into which the pursuer and his friend were efender Patmore depones that before the occurrence on it frequently happened indeed, scarcely a day that passengers who ought to have travelled by the riages and had tickets for such carriages, were found hird-class closed carriages; and no wonder, for the nice an of open and close carriages, when both were titled luss," was not so apparent as to avoid the accidental of passengers, who were left to judge for themselves, g into the one description of carriage instead of the Such mistakes, however, should not have taken place,

to fall.

and would not if the defenders' servants had properly attended to their duties, and had seen, before starting, what tickets the passengers possessed and in what carriages they had taken seats.

The frequency of these errors forms an unpleasant comment on the careless performance, by their own servants, of the railway company's regulations; and as the ticket-collector depones that he always compelled passengers found in wrong carriages (except the pursuer and his friend) to pay the difference, the remissness referred to became a serious public wrong, and humble passengers must thus have been forced to pay, whether convenient or not, extra fare, which at the outset they did not contemplate.

In making these strictures the Sheriff-Substitute is not insensible that frauds by unprincipled passengers are occasionally committed or attempted on the companies in the course of journeys, and he fully concurs in the justice aud necessity of stringent regulations and of ample powers being allowed railway officers to enforce them, and so repress such frauds. But while this is conceded, a moment's thought will show that frauds by passengers travelling in superior carriages will be very rare indeed, if the guards at starting do their duty by examining the tickets; and during the journey, where there is reasonable ground of suspicion, occasionally requiring production of tickets, especially when there are intermediate stations at which passengers are taken up. If proper exactness in this respect is given, and it is known that the companies' servants are attentive to the regulations, few, if any, instances of this kind of fraud would or could happen. It is also satisfactory to learn, from the proof, that a better mode of making the difference between open and closed third class carriages had been adopted since the occurrence in question, aud what formerly were open third class carriages, are now titled "fourth class."

The defenders who were stationed at Cowlairs have been relieved of liability for their conduct on the occasion libelled, because they were not participant in any act of carelessness leading to the occurrences complained of. The ticket-collector having found the pursuer and his friend in a wrong carriage, did no more than his duty (however hurtful to passengers) in demanding the additional fare; he could not, of course, know under what circumstances they happened to be there, and having, or at least exercising, no discretion, he was entitled to assume that the pursuer and Scott were wilfully travelling in the superior carriage, and to act accordingly, dealing with it as a case of fraud, and in defence, that is the interpretation the defenders give to the pursuer's conduct, and as authorised by the provisions of the Edinburgh and Glasgow Railway Company's Act, 7 and 8 Vict., c. 58, s. 67, on finding that the pursuer and his friend would neither pay the additional fare, nor leave the carriage. Patmore was not in bad faith, and he did not act illegally in calling the other defenders to his assistance, and they were bound to aid him in forcing the pursuer and Scott from the carriage. Thus far they seem to have been protected, and however reasonable the pursuer's proposal was, that they should be allowed to complete their journey, and at the terminus explain the circumstances to the company's superior officers, and if that did not satisfy them, to resign themselves into the hands of the police. Patmore and the Cowlairs officers were empowered by the statute cited to arrest the pursuer and his friend there. Having taken this course, and had fraud been still the offence which Patmore thought of charging, he was bound, under that statute, to have taken the pursuer, with all convenient despatch, before a magistrate to have the complaint heard and determined; but on removing the pursuer and Scott from the carriage, Patmore and his assistants conveyed them to the Springvale Police Station, and accused them, not of fraud, but of disorderly conduct, and annoying and obstructing the railway officers at Cowlairs in breach of the peace. Now this was not the offence for which they were extruded from the carriages, if guilty of any offence, that had been committed before the pursuer was asked to leave. The disorderly conduct and obstruction happened in removing them. If there was no fraud committed, or intended on the defenders, the railway companies, then Patmore and his assistants had no authority from the statute, nor were they otherwise authorised, to force the pursuer out of the carriage; and in resisting the extrusion, the pursuer acted on the defensive, and the railway officers were unlawfully invading him. If guilty of fraud, then, of course, the pursuer and his friend had super

Yet

added to that the additional offence of disorderly conduct, and obstructing officers, and probably a breach of the peace. The Sheriff-Substitute is of opinion that before the latter offence could have been competently entertained, the primary question, whether there had been an act of fraud completed or attempted, ought first to have been settled. At any rate the charge made by Patmore was as stated, and he left the police authorities to entertain it, or leave it alone. The Fiscal, in the exercise of his judgment, prosecuted the offence; but the magistrate, after trial, found the pursuer not guilty -having, as it appears, incidentally entered on an investigation of the circumstances attending the alleged fraud. For the trial and its consequences, after lodging the information, neither Patmore nor the other individual defenders are responsible; and in making the charge of breach of the peace and disorderly conduct, it cannot be said that either of the individual defenders represented their employers, the railway companies; but for their actings at Cowlairs the companies are responsible. It is true that these officers are not themselves personally answerable, because they acted in good faith, and in the discharge of the duties assigned to them (from which construction of conduct probably the guard Hunter ought to be excepted); but the defenders, the railway companies, are liable for the original remissness and fault of their servants at Helensburgh, which was the origo mali, and also for the consequences flowing from that fault, when their other servants, performing their duties at Cowlairs, were the instruments of injuring the pursuer, as complained by him.

The only way by which this responsibility could be avoided was by showing that their defence was true, and that the pursuer and his friend, Scott, were found, as alleged, in defraud of the railway company travelling in a "third-class closed carriage." But beyond the fact that they were in the wrong carriage-which is a statement made by the pursuer himself in the summons-no proof whatever of fraud has been offered.

The mere circumstance of being in a wrong carriage does not necessarily infer fraud; and servants of a railway company stationed as Patmore was, and having his powers, ought to possess and exercise much discretion in dealing with such

cases.

Instances may be conceived of a passenger travelling without any ticket at all, yet who could not be regarded as acting in defraud of the company. One such instance happened in Hamilton v. The Caledonian Railway Company, 18th Feb., 1857, 19 Sess. Cases 457; and there the Lord President's language is appropriate and just. "If a person is in use to travel," his Lordship observes, "without a ticket, and the officers of the company know it, he is no doubt travelling in violation of the regulations, because they say that no person shall enter a carriage without a ticket; yet if he is so allowed to travel, and pay for his ticket at the end of his journey, and if there is a usage to that effect, he is a lawful passenger in the sense of this issue." In the course of an argument addressed to the Court, in which counsel contending for the railway company, that a passenger without a ticket was like a trespasser who got up behind a coach, was asked by the Court whether, in determining what a lawful passenger was, the railway carried its principle of law to the case of a person having a third-class ticket going into a first-class carriage? To which the counsel replied, that he was unable to answer that. There was a difficulty about it, H. p. 459. This suggestion of the Court covers an extreme case of the same description as occurs in the present. To apprehend, as guilty of fraud, a passenger either in the circumstances of Hamilton's action or the instance suggested by the Court, would have been perilous to the railway company. The intention of the passenger is the element to be considered; and that, in general, could best be judged of by a prudent and cautious servant on the spot, enjoying a power of discretion from the company. Illustrations of instances where fraud was not inferred from apparent violation of bye-laws and regulating statutes, will be found in Glen v. Hall, 23d May, 1857, 2 Hurleston & Norman's Exch. Reports (vide Lord Campbell's speech, p. 388), with a different date from that on which he travelled; and where a passenger travelled with a ticket accidentally stamped Goff v. The Great Northern Railway Company, Queen's Bench, 13th Feb., 1861, 7 Eng. Jurist, New Series, p. 286, where a passenger who had inadvertently used a wrong return ticket, and was arrested as for a fraud, but found entitled to damages,

Looking to the proved circumstances, therefore, a is required to justify an imputation of fraud, the Sha stitute is of opinion that there did not exist any such to the pursuer or his friend.

No expenses have been awarded the individual de because, although they have been found exempt fr liability, yet they were the hands by whom wrong w the pursuer, and the pursuer was warranted in includin in his action, their powers and authority being und and unknown.

Besides the arresting and removal from the carriag pursuer and his friend for one description of offe delivering them to the police on a different charge, g pursuer sufficient reason to believe that their whole ings were irregular and unauthorised.

In the case of Hunter, the guard, he is, if posi entitled to costs, as there existed grounds which, on cation of strict principles, might have involved him pa in reparation.

The case was appealed to Sheriff Sir Archibal who issued an interlocutor, adhering to the inter and dismissing the appeals.

SHERIFF COURT OF FIFE-CU (MR SHERIFF TAYLOR.)

JOHN MILLER AND JOHN M'GREGOR-Compet Trusteeship on the sequestrated estate of John I merchant, St Andrews. Sequestration-Competition-Trustee-Personal Ob AT the meeting of creditors for electing a trustee, Miller and M'Gregor were nominated, but pre the vote being taken, Mr Miller stated the fa personal objections to Mr M'Gregor:—

"That the said John M'Gregor is conjunct fident with the bankrupt, and otherwise so with the bankrupt's obligations as to render his ble for the duties of trustee." Notwithstanda objection, there voted for Mr M'Gregor, and M-1 banker, St Andrews, as trustee in succession, with claims to the amount of £1399 5s 1 Mr Miller to the amount of £696 10s 2d, p apparent majority in favour of M'Gregor of £70 Caution was not offered for Mr Ireland, the nominated in succession to Mr M'Gregor. Beth lodged notes of objections in terms of the statute:

MR MILLER'S OBJECTIONS. Personal Objections.-The said John M'G personally disqualified for the office of trustee wi present sequestration, in respect

1. He is conjunct with the bankrupt.

2. He is confident with the bankrupt, and He has identified himself generally with the co the bankrupt's business, and in particular hea the sequestration, which ex facie are joint bills, joint obligant with the bankrupt on bills claimed been in the habit of receiving consignments of the rupt's goods and selling the same by public aucti bankrupt has been in the practice of acting as him.

I-PERSONAL OBJECTIONS.

-The personal objections against Mr M'Gregor the meeting were that he is "conjunct and confident bankrupt, and otherwise so mixed up with the bankgations, as to render him ineligible for the duties of In the notes of objections these are repeated, with on that Mr M'Gregor has an interest adverse to that neral body of the creditors.

the hearing the objection of his being conjunct with rupt was explained to be founded on the fact that regor is the bankrupt's uncle-in-law. This relationever, has been expressly held not to fall within the of conjunct-Bell's Commentaries, vol. ii, page cases there referred to.

ojection of being confident with the bankrupt in his has not been proved. All that is alleged or appears documents in process is, 1st. That Mr M'Gregor a joint and several obligant with the bankrupt in a ry note for £200 to the Clydesdale Bank; which note factorily shown to have been for the accommodation akrept, who was the real debtor in it, the note having

The Commercial Bank claims £504 198 Sd, conform to state of debt; but with a view to voting, deducts therefrom £64 5s, being the value put on the obligations of persons liable in relief to the bankrupt as detailed in an appendix held as engrossed in the oath. The debt is fully vouched by a cash credit bond, a stated account duly attested in terms of a provision in the bond, and by ten acceptances, to which the bankrupt is a party. It is objected that the Bank has failed to put a value on the obligations of other persons liable in relief to the bankrupt; but there is no proof whatever of this in contradiction of the statement in the oath. And in other respects the claim being in due form and duly vouched, this vote is clearly valid, and the objection to it falls to be repelled. Without going through the whole of the other claims objected to on both sides, it thus appears that Mr M'Gregor has an undoubted majority, in value, of the votes in his favour, and he has therefore been declared duly elected

trustee.

For M'Gregor-WM. MURRAY, St Andrews, and THOMAS S. MITCHELL, Cupar.

For Miller-DRUMMOND & NICHOLSON, Cupar.

9TH JANUARY, 1864.

SHERIFF COURT, ELGIN.

(SHERIFFS B. R. BELL, CAMERON, AND MACLEOD SMITH.)

STEVIN, Inspector of Elgin, v. BUIE.

of the bankrupt's, in which Mr M'Gregor was in tioner; and 2d, That in the course of his busiactioneer, he sold goods for the bankrupt between 1963 to the amount of about £50, at which sales the feems to have acted as clerk. These circumstances pear to the Sheriff-Substitute to be such as disqualify regor from being trustee; they do not imply any timate or confidential association or connection with rupt's business, like that of "partner in trade, serctor, or confidential man of business," who are the on of parties regarded in law as falling within the of "confidents."

e third personal objection against Mr M'Gregor the note of objections, viz., that "he has an interest that of the general body of the creditors," was not the meeting of creditors, and falls to be repelled on Aunt, at least to the effect of benefiting the present te of Mr Miller. See Stat. 70. M'Leish, Feb. 23, raan, Nov. 24, 1827. But irrespective of that there is no sufficient proof of the averment. The in referred to, viz., that Mr M'Gregor is an ex facie everal obligant along with the bankrupt in one bill, atisfactorily shown to be for the bankrupt's accomand that he, as an auctioneer, sold small quantities the bankrupt at different times during the last 3, in circumstances attended with no suspicion, are, ight, far from establishing such an adverse interest the other creditors as to render Mr M'Gregor for the trusteeship. See Reid, May 21, 1836.

II. OBJECTIONS TO VOTES.

the personal objections to be limited, it now therebas necessary to refer to the state of the vote at the

of those who voted for Mr M'Gregor amounted 1d, those for Mr Miller to £696 10s 24d. Votes firegor to the amount of £269 78 8d are unobjected at it is sufficient, for the purpose of deciding the confine the scrutiny to the single claim of the al Bank of Scotland, which being for £440 14s 8d, ng with the said £269 7s 8d, an amount of votes of Mr M'Gregor exceeding the total votes for

A woman eighty years of age became chargeable to a parish, and she was allowed aliment. Having found a grandson of the pauper able to relieve her, the parish sought repetition and relief from him. He agreed to repay what had been advanced, but offered to take his grandmother into his own house, and refused to pay to the parish any advances made after this offer. The parish, however, continued to relieve the pauper, and raised an action against the grandson for payment of the advances, and for relief for the future-Held by the Sheriff's-Substitute that the offer of the grandson was, in the circumstances, sufficient "needful sustentation," and relieved him from the advances made by the parish subsequent to the offer. The Sheriff reversed, holding the offer to take the pauper into his house by the grandson not sufficient, and found him liable in the sums of aliment sued for, and also in expenses.

ON 31st January, 1860, the defender's grandmother applied to the respondent for parochial relief. She was then about ninety years of age, and in a state of dotage and imbecility. The respondent thereupon intimated to the defender that the application had been made, and

that he held him liable in relief. The defender called on the inspector as soon as he received this intimation, and told him that he was willing to support and maintain his grandmother in his own house. The respondent alleged that, on communicating this offer to the old woman, she refused to go to her grandson's house, and said that she would rather starve than do so. The inspector therefore continued to afford relief to the old woman, and in October, 1860, raised this action for relief of his advances.

The record having been made up and closed, the