Law Act, and the heavy burden imposed by it on so many persons honourably struggling, with slender means, to support their own families, and to contribute their quota for the really destitute, it would indeed have been anomalous, as well as iniquitous, if an opportunity had been afforded, under the provisions of the Act, to the wealthy fathers of illegitimate children to throw the burden of supporting them, at any period of their lives, or under any circumstances, on a fund drawn, in many instances, from persons of straitened means, and intended for the support of those who have no other source or means of support.

Gray and Alexander Clark to have been duly elected trustee,
and trustee in succession respectively, on the the said seques-
trated estates: Finds the unsuccessful competitor, James
Hutchison, liable in the expenses of the competition; allows
an account thereof to be given in, and when lodged, remits to
the auditor of Court to tax and report, and decerns.
Farther, having heard parties' procurators on the note of
objections for Oswald Prosser, writer in Aberdeen, a com-
petitor for the office of a commissioner in the said seques-
tration, to the votes made in behalf of Robert Reid, tobac
conist, Aberdeen, John Mackintosh, merchant in Peterhead,
and James Hutchison, jun., Queen Street, Peterhead, at the

This Interlocutor was appealed, but the Sheriff ad- said meeting of creditors, Finds and declares, for the reasons hered, adding the following

NOTE.-The defender admits that his illegitimate daughter, who died on 29th August, 1863, fell into bad health in the previous year, and in consequence became, and continued chargeable to the parish of Minnigaff, as the parish of settlement, from 224 October, 1862, until her death, being the period embraced by the pursuer's account of advances libelled. The Sheriff has, therefore, no doubt that the defender is liable to relieve the pursuer of his advances. The rule that a father, either of a legitimate or an illegitimate child, is liable to relieve a parish of proper and necessary advances made for the child's support whenever and as long as the child has become and continued a proper object of parochial relief appears unquestionable. Besides the case of Potts, that of Finlayson, cited by the late Professor Bell, and also by Mr Fraser, under the passages cited in the note of the Steward-Substitute, and the doctrine stated by these authors, afford a sufficient answer to the defender's plea in the present

case.

Act. RICHARD HEWAT, Castle Douglas.
Alt. HENRY GLOVER, Gatehouse.

12TH MAY, 1864.

SHERIFF COURT, ABERDEENSHIRE

PETERHEAD.

(MR SHERIFF Skelton.)

DEVERALL'S SEQUESTRATION.

Competition for Trusteeship-Promissory note-Substitute Payee.-Held, that a promissory note granted to a person, whom failing, to his wife, was null, as containing a substitution.

Promissory Note-Voucher

Affidavit defectiveCorrection of.-Held, that a promissory note granted twelve months prior to sequestration by a bankrupt to his father, was not a voucher sufficient to support a vote hy the father in his son's sequestration without a statement in the affidavit of the manner in which the debt arose, and that an affidavit defective in this respect could not be ratified by amendment.

Ix this sequestration a competition for the office of rustee having arisen, the Sheriff-Substitute pronounced he following judgment, which shows the nature and rounds of the objections to the votes:

Having heard parties' procurators on the note of objections Adam Milne Gray, and Alexander Clark, both merchants Aberdeen, competitors for the office of trustee, and trustee succession respectively, in the sequestration of Wm. Gordon Deverall, merchant in Peterhead, to the votes made on behalf James Hutchison, auctioneer in Peterhead, as trustee in be said sequestration, at the meeting of creditors held on the wenty-sixth day of April, 1864, Finds and declares, for the asons stated in the subjoined Note, the said Adam Milne

It seems un

in the subjoined Note, the said Oswald Prosser, John
Mackintosh, and Robert Reid, to have been duly elected
commissioners on the said sequestrated estates, and decerns.
NOTE. At the hearing, parties' procurators stated to the
Sheriff-Substitute that they had agreed between themselves
that the objections to the claim of James Deverall should alone
be debated, as the disposal of that claim would necessarily
determine the competition for the offices of trustee and
commissioners, and the Sheriff-Substitute has therefore not
thought it necessary to scan the claims on each side, but
simply to declare the successful competitors.
necessary to dwell on the 1st and 2d objections. They are
both bad. As to the 1st, it would be a very anomalous rule
that the oath of the concurring creditor, emitted and pro-
duced with the petition for sequestration, while not requiring
to be in different terms from that for voting, should for no
purpose whatever be made of new.
There is nothing in the
Act of Parliament to infer such a rule. The oath of this
concurring creditor was really made in the sequestration. It
was produced as a requirement with the petition, and is of the
same date, and is to all intents an oath in the process of
sequestration, though it was necessarily emitted just before
sequestration was actually awarded. The creditor thereafter
produced it at the meeting for election of trustee, with the
notes as his title to vote. It bears that the bankrupt "is duly
indebted"-that is on the date of sequestration being awarded.
The Sheriff-Substitute is glad to observe that Mr Murdoch,
in his manual, in accordance with these views, lays it down
that an oath may be good for concurring in the petition, and
for voting and ranking, provided it is adapted to each of the
cases (and it is so here to petitioning and voting), because he
conceives it would be a great hardship to put the creditor to
such unnecessary expense.

As to the second objection, it is not required that the oath shall set forth that the debt was due at the date of the sequestration in express words. There is no prescribed form of the oath; but in any forms given by the authorities on bankrupt law, there is no reference to the sequestration at all.

The third objection raises a nice question, but on the whole it must be considered to be well-founded. The two promissory notes to which it applies are granted to "Mr Jas. Deverall, mariner in Peterhead, and failing him, Mrs Barbara Gordon or Deverall, his wife, or to his or her order." (Bell's Prin., 305.) Though bills or notes are properly mercantile instruments, the use of them in Scotland has not been restricted to mercantile

men; yet in the use of them the same rules are applied as in the
strict mercantile employment of the instrument. According
to Mr Thomson, in England no document can be considered
as a bill or note in which payment is made to depend on a
the obligant or the payee, as where a bill or note is made
contingency, or in which there is any uncertainty either as to
payable to A. or B. (Thomson on Bills, pp. 10-12.) "This
rule," he says, "appears in the abstract to be consistent with
our law;" and he lays it down that bills or notes which are void
be an effectual ground of claim on a bankrupt's estate. At
in this, or any of the grounds there mentioned by him, cannot
page 11 he refers to various English cases upholding his doc-
trine; but farther on he quotes a case decided in the Scottish
Courts which involved the same principle as here.
was one of a bill drawn and accepted, payable to the drawer
or order, "or failing him by decease, to my second son,
Alexander Waddell." (Ibid, p. 19, Inglis v. Wiseman.)
The Court sustained the objection that it contained a substi
tution of heirs. Now, in the present case, there was not a
substitution of heirs, and it has been endeavoured to show
that in this there is a difference between the cases, as the
substituted payee here was the wife, and therefore eadem
persona with the first-named payee. This appears to the

The case

re

Sheriff Substitute to be a most perverted view of the case.
1st. While the marriage subsists, the goods in communion
are under the husband's uncontrolled power, having been,
ipso jure, assigned to him on the marriage. 2d. The wife,
by the failure of the husband (by decease), was, as
gards these notes, the same as a third party: she would
not, by law, have succeeded to that specific sum on her hus
band's death, but to her share of the goods in communion.
But in moveables there is no such legal fiction as eadem
persona. In heritage the heir is eadem persona with his
defunct ancestor; yet a bill taken to a person, or his eldest
son, would still be invalid. The case of Inglis v. Wiseman
involves, it is thought, the precise principle which has been
considered here. In that case the Court appear to have
admitted the bill as a document of debt, in consequence of a
proof, that the amount of it had actually been paid to the
acceptor. On this Mr Thomson cogently remarks-"It may
be doubted whether it was proper thus to receive it as a docu-
ment of debt, seeing it was not a document in re mercatoria
or a regular written obligation, meaning that, not being a
bill with its privileges, it was not a probative writing-not
containing the solemnities of a deed. It is thought that no
such effect would now be given to such a document." But
Mr Thomson remarks further on this decision, that the bill
was probably invalid also on another ground which seems
applicable to the payee as well as to the obligation contained
in the bill, viz., that both the one and the other shall be cer-
tain, and not conditional or alternative. The words, "failing
the acceptor, to his second son," are the condition and alternative
which Mr Thomson alludes to in the case.
Mr Bell says-
"The bill must be drawn absolutely and unconditionally. It
is no bill if drawn with a condition, for that is contrary to the
nature of a bill." After what has been said, it is not neces
sary to dwell at any length on the fourth objection. The
|
creditor is admitted to be a conjunct person, which, in an
action for reduction of the promissory notes, on that ground
would create a presumption that the notes were granted
without true, just, and necessary cause to the prejudice of
creditors, and that the granter was insolvent at the time of
making them. It is quite true, that, notwithstanding this, a
creditor conjunct is not excluded from a vote in the election
of trustee, but it is settled that any acknowledgment of
debt to a conjunct person, shortly prior to sequestration, is
not, per se, voucher sufficient to sustain a vote. (Anderson
v. Guild, 13th June, 1852.) The principle seems to be,
that a conjunct person who holds the bankrupt's acknowledg.
ment of debt must produce along with such document some
corroborative voucher, or, failing such, must explain in his
oath the nature and history of the transaction between him
and the bankrupt, which led to the granting of the acknow-
ledgment, and there appears no difference in this question
between a bare acknowledgment and a promise to pay.
Here there is nothing but the notes and the oath, in which it
is sworn only that they are due to the creditor by the bank-
rupt. The Sheriff Substitute does not think, in the circum-
stances of the case, that there are sufficient grounds to sustain the
creditor's vote on this head, and he holds that the oath could
not be rectified to the effect of explaining the history of the
transaction, as such rectification would not be that of a clerical
or technical error, or in the new framework of the oath.

The election of commissioners follows the same rules as above set forth.

and had a young family. In an action by the Inspector against a son of the first marriage for reimbursement, the defence, that the son was not bound to maintain his stepmother, and brothers and sisters by the half blvoi, repelled.

THE pursuer, Inspector of the Poor of the parish of Balmaghie, raised this action for reimbursement of advances made to the defender's father, who, from old age and destitution, had become chargeable to the parish. The defence was, that he was willing to maintain his father, but not his wife, by another marriage, and her children. After a proof and hearing, the Steward-Substitute pronounced the following Interlocutor:

Having advised the record, proof, and productions, and heard parties procurators, Finds that the present action is brought by the inspector of the poor of the parish of Balmaghie against the defender for reimbursement of certain sums advanced and expenses incurred by that parish for behoof of Peter Kergan, as a destitute person, chargeable to that parish, on the ground of the defender's obligation as Peter Kergan's lawful son, to support his indigeut parent, and relieve the said parish of these advances and expenses. Finds that, in 1857, when the pursuer, as inspector of Balmaghie, gave pecuniary and other aid to Peter Kergan, the latter was not a proper object of parochial relief; because, though nearly eighty years of age, in infirm health, and with a wife and three children dependent on him, he was then receiving 6s a-week and a free house from Colonel Laurie, of Woodhall, as an old servant or workman on that estate: Dastains the defences against the pursuer's claim for reimburse ment of his advances to and expenditure on account of the said Peter Kergan, or his family, during the year 1857, an assoilzies the defender from the conclusions of the action as regards that claim: Finds that, in 1859, and subsequently till 3d October, 1863, during which period parochial aid was again supplied by the pursuer to Peter Kergan, the latter was a proper object of parochial relief, and chargeable to the parish of Balmaghie, in respect-1st, he had a residential settlement in that parish; 2d, he was totally unable from age and infirmities to work for his support; 3d, he had then to maintain a wife and four children, the youngest, in 1839, only six months old; and 4th, the free house formerly given to him had then been withdrawn, and his weekly allowanc or pension from Colonel Laurie had been reduced from 6s down to 3s a-week: Finds that the sums advanced to, or for behoof of the said Peter Kergan, and partly employed in the maintenance of his wife and children residing with him, by the pursuer, as inspector of Balmaghie, during the period from 1859 till 3d October, 1863, both inclusive, are not objected to as excessive or unreasonable in amount, and seem suitable to the condition and necessities of the pauper and his family: Finds that the defender possesses a free income, principally derived from heritable property, of £52 per annum, irrespectively of what he may earn, if so disposed, by industrial exertion, on which income he has to mantain his wife and himself: Finds that the defender is able, and, as the lawful child of the said Peter Kergan, was, de facto, at the date of the pursuer's advances, able, and in the special cir

For Gray-ALEXANDER & ANDERSON, Peterhead, and cumstances of the case, ex-lege, bound to relieve the parish

JAMES & GEORGE COLLIE, Aberdeen.

For Hutchison-A. & W. BoYD, Peterhead.

18TH MAY, 1864.

STEWARD COURT, KIRKCUDBRIGHT.

(STEWARDS HECTOR AND DUNBAR.)

SPROAT, Inspector, Balmaghic, v. KERGAN,
Kirkcudbright.
Pauper.-From age and destitution, a pauper had become
chargeable to a parish. In his old age he had married,

of Balmaghie of the burden of assisting to maintain the de fender's father and his wife and family dependent on him. Finds that it is not a valid defence against the defenders liability thus to relieve the parish of Balmaghie, that the parochial advances were made partly for the maintenance, or to enable Peter Kergan to maintain his wife and children residing with him, and also destitute, said wife being the defender's stepmother, and said children being hers by Peter Kergan: Therefore, with the exception of the parochial ad vances made by the pursuer in 1857, as aforesaid, repels the defences, and decerns against the defender in terms of the conclusions of the summons, but under deduction of one pound sterling paid to the pursuer on his father, Peter Kergan's, account by the defender: Finds expenses due to

the

pursuer, subject to slight modification: Allows an account thereof to be lodged, and remits the same, when lodged, tu the auditor of this Court for taxation, and decerns,

NOTE.-The Steward-Substitute is convinced that the adnces made by the pursuer to Peter Kergan in 1857 were manely applied to alleviate what appeared, and was repreted by Kergan's wife, to be a case of destitution. But on e grounds assigned in the prefixed Interlocutor, he cannot ard Kergan as at that time a proper object of Parochial ef. His means of subsistence then amounted to 6s a-week, nctually paid, with a free house, which raised his income to out 78 a-week, subject to no contingency or abatement, and thout taking into account any earnings, necessarily small, ade by his wife's labour on those rare occasions when she ald leave her own household and obtain outdoor or other ployment. In such circumstances Peter Kergan was ither destitute nor dependent on parochial aid.

His condition, even with a wife and three children to intain, was better than that of an able-bodied labourer ving a wife and much larger family to support in health I sickness on 12s, and even 14s a-week of average earnings en employed, but liable to diminution from unfavourable ather, temporary sickness, or similar causes.

art

And yet such a labourer has no legal claim to parochial ef, although his wife and family may be prostrated by ease, and his means exhausted by the unavoidable extra enditure thus occasioned. If any doubt previously existed to the power of parochial boards to afford to the ablelied relief in these exceptional cases of temporary distress, Leen dispelled by the recent decision of the Supreme It is not shown that before, or on advancing these sums Kergan in 1857, the pursuer made due inquiry as to the nt of Kergan's means and ability to support himself family. Such inquiry would have shown him to be an object of parochial relief, but of charitable consideraàto his relations or benevolent neighbours, able, though bound, to assist him, just as an able-bodied labourer is in Tason of temporary pressure or destitution from want of loyment or other temporary cause.

The other portion of the pursuer's claim is founded on nger grounds.

eter Kergan's family burdens and expenses had then in-
ed, and his means of sustaining them had greatly dimin-
d. It was impossible, on an income of about 5d per day,
procure food, clothing, and lodging for six persons, if
gan could even have avoided the additional expense of
cation for some of his children.

le was at that time obviously unable, by his own labour,
he means at his disposal, to maintain himself and family
cont aid from the parish or the defender.
He was, in law, destitute, and the pursuer, when applied to
relief to him and his family, was bound by the Act 8 & 9
cap. 83, secs. 69 and 70, to afford relief, including
le provision for the education of the applicant's
aving afforded that necessary relief to Peter Kergan, the
er was then entitled, by the 71st section of said Act, "to
er the monics expended on behalf of that poor person'
the defender, his legitimate son, as "the person legally
to maintain him."

ren.

e defender does not seriously deny his ability to afford lief that is demanded. The burden, which from the a great age and increasing ailments, can only be of a orary nature, will not deprive the defender of any of the aries of life, and slightly, if at all, interfere with his

e does not dispute his obligation to maintain or contriwhat is necessary to maintain his father. He resists resent claim solely on the ground that the sums add or expended by the pursuer were employed in supportPer Kergan's present wife, the defender's stepmother, r children by Kergan, whom the law, he pleads, does Lige him to maintain.

inability to maintain them of Peter Kergan (husband of the one and father of the others), on whom the primary obligation lay. The parochial relief, therefore, afforded by the pursuer was, in law, given to Peter Kergan to enable him to support his family, and the defender's obligation to relieve the parish of that burden must be co-extensive; 2d, it cannot for a moment be contended that if that family had consisted of the defender's own mother and his full brothers and sisters, he could have maintained this plea of non-liability. And still it would only be as members of Peter Kergan's family that he could, in Peter Kergan's lifetime, be called on to support either his wife or children; for there is, by law, no stronger obligation to support full brothers or sisters than those of half blood. It is, no doubt, established by the law of Scotland, that a son who does not represent his father, lucrative, is not bound to support his indigent brothers or sisters, and if this action had been at their instance, or at the instance of the parochial board for relief directly afforded to them, the defence against such a claim, however ungenerous, would have been insuperable. In like manner, an action at the instance of the defender's stepmother, or of the pursuer directly for her behoof, would have been untenable, or at least of very doubtful competency. But the present action is essentially of a different character. It is for relief of advances made to Peter Kergan, the defender's father, whom he is confessedly bound to maintain while indigent. It certainly does not, in law or reason, justify the defender's failure to fulfil that obligation that his father's destitution is more severe and insupportable from his having to maintain, besides himself, a wife and young family. Nor is it a humane or just reason for the defender's refusal or neglect to afford any relief to his indigent father, that the father, as in duty bound, would have shared that relief with his starving wife and children.

Further, it appears on the face of the account sued for, that the annual allowance made by the parish to Peter Kergan during the four years and nine months that he received relief amounted, exclusive of a free house, which the defender was bound to afford, altogether to about somewhat less than £6 per annum. That is surely not a sum which a person in the defender's circumstances could reasonably have grudged for the personal requirements of his aged and infirm parent, who, in the son's own words, "had always supported an unblemished character up to the present," and had displayed an honourable and commendable spirit of independence by supporting himself and his family by the sweat of his own brow till he all but reached his eightieth year. Although the defender is himself far beyond the reach of poverty, his father, during the time that this relief was afforded, received what was barely sufficient to keep him and his family alive in the condition, and subject to the privations of paupers. If the defender is, in strict law, entitled to refuse assistance to his destitute stepmother and her young family, is he also entitled to demand and avail himself of her services, as a constant and careful attendant on his sickly octogenarian father, without any remuneration or means of support?

He is clearly obliged to provide, not only nourishing food, cordials, medical assistance, clothing, and shelter for his father, but also such attendance as his great age and in firmities render no less indispensable. The Steward Substi tute is convinced that the defender could not have procured that assistance, and supplied these wants, on terms more favourable to him than the parish has done. If the remuneration to which the wife would have been entitled, as a hireling attendant on Peter Kergan, has been expended in maintaining herself, and in maintaining and educating Peter Kergan's young family, what conceivable loss or injury has the defender sustained by that arrangement?

By entering into that arrangement the pursuer, as inspector of Balmaghie, did what, in the Steward-Substitute's opinion, was most advantageous to the pauper Peter Kergan, not e Steward Substitute has overruled that plea. He con- prejudicial to the defender, and more beneficial, in a moral and it, with reference to the peculiar circumstances of the social point of view, than if he had separated Peter Kergan inconsistent with sound, legal, or moral principles-1st, from his wife and children, put the latter into the poor-house, be poor law enactments the pursuer, when relieving and furnished Peter with a female attendant at an average r Kergan, was bound to provide relief for his wife and of £6 or £8 per annum. At all events, the other arrangechildren dependent on him. He was bound to regard ment, which kept the family together, was adopted by the as a destitute family, and to provide for them col- parish, in bona fide, as the best, and was not distinctly or ly as such. While living with Peter Kergan, his wife decidedly objected to by the defender, whose duty it was to Children had no separate or independent claim to paro-suggest a better or different arrangement, if it seemed to him I relief. Their derivative claim arose entirely from the objectionable, when the relief afforded by the parish was first

intimated to him in 1859. In his letter of 22d January, THIS was an action for the recovery of £250, for damages 1859 (No. 12 of process), the defender founds on Colonel sustained by the pursuer, and solatium to her in conse Laurie's pension to his father of 3s a-week (which the father's wife and children were clearly entitled to share the benefit of) quence of the defender having, on or about the 17th as his reason for refusing all sort of relief to his father, adding May, 1862, promised and agreed to become the husband that, "when Mr Laurie gives up giving him that, I don't of the pursuer; but he refused to marry the pursuer, object assisting him, but I never will have anything to do and married another person. The defence was a denial, I will with his wife or family, nor you cannot force me. with the explanation that, if any promise was made, it never pay one farthing of what you are giving or what you must have been when the defender was kept in the have given. I put you to defiance-no law in the world can compel me to support another man's wife and family." pursuer's father's house, and so much under the influence The defender has resolutely acted on these not very dis of liquor as to be unaware of what he was doing or

interested Malthusian views of his filial obligations.

He has for nearly five years refused to alleviate, to any extent, his father's destitution, although fully apprised of it. He has allowed the pursuer to provide for the old man's urgent wants during that period in the way deemed by him the most suitable, without evincing the slightest sympathy or interest in the charitable work. His conduct and letters clearly indicate his wish and intention to relieve himself entirely of the burden of his father's support, and to throw the burthen on the parish. He can neither plead poverty in excuse, nor law in defence of that conduct.

The pursuer, on behalf of the parish of Balmaghie, will, without doubt, gladly accede to any reasonable arrangement proposed by the defender for his father's future maintenance and comfort. Though allowed an opportunity of proving any advances made by him to his father, or for his behoof during the period embraced in the account sued for, in addition to £1 given to the pursuer, and now credited, the defender has failed to offer such proof, and has not even tendered his own oath on the point. In these circumstances, any further deduction from the pursuer's claim seemed inadmissible. The cases of M'Connocher v. Webster and Donald, decided in the Sheriff Court of Kincardine (Poor Law Magazine, Vol. v., p. 399), and M'Adam v. M'Adam or Young, decided in the Sheriff Court of Lanarkshire (Poor Law Magazine, Vol. v., p. 330), do not seem to the Steward-Substitute precedents which can rule or influence the judgment in the present case. These were pronounced in actions brought to oblige a son-inlaw to maintain his father-in-law. The two Courts seem to have taken opposite views, and given conflicting judgments on the point. But if they had fortunately come to the same conclusion in the matter, it is not thought that, with all the respect that would have been due to such an authority, the present case could in the slighest degree have been ruled or affected by it.

In these cases, the question of legal liability was fully open, while in the present case the question to be dealt with, viz. the son's liability to maintain his father, is no longer open. Indeed, it never was an open question. And the point as to the stepson's liability to maintain his stepmother and half brothers and sisters is only indirectly raised, and has been disposed of on special grounds, which do not occur in the cases above referred to. A case more closely applicable, or rather identical with the present case, seems to have been decided in the Sheriff Small Debt Court at Glasgow in March, 1863, in conformity with the views taken by the Steward Substitute in the present case (see Poor Law Magazine, Vol. v., p. 342).

This Interlocutor was appealed, but the

adhered.

Act. RICHARD HEWAT, Castle Douglas.
Alt. WILLIAM C. Low, Kirkcudbright.

20TH MAY, 1864.

Sheriff

SHERIFF COURT, LANARKSHIRE—GLASGOW. (Sheriffs SIR A. ALISON AND BELL.)

HARKINS 2. JAMES M'KECHNIE. Damages - Breach of promise of marriage. - Circumstances in which modified damages given, and costs on the lowest scale.

saying.

The record having been closed and proof led, the Sheriff-Substitute pronounced the following Interlocu

tor:

Having heard parties' procurators, and resumed consideration of the proof and whole process, Finds it proved that on or about the 17th May, 1862, the defender made a proposal of marriage to the pursuer, and that she agreed to accept him as her husband: Finds that, on various occasions during the succeeding six weeks, the pursuer and defender met as engaged persons, and the defender mentioned to certain of the pur suer's friends that they were to be married, and ultimately the 16th July was named as the day when the marriage was to take place: Finds that the pursuer had a situation as servant or nurse in the Royal Infirmary, which she gave up early in June in expectation of her marriage with the defender: Finds that the defender afterwards broke off from lis engagement to the pursuer, and in October, 1862, married another person; but being conscious that he had not treated the pursuer well, he offered to pay her a sum of £10, which she refused: Finds that the defender is liable in damages to the pursuer for breach of contract; but in regard to the quantum of said damages, finds that the pursuer was only twenty-five years of age, while the defender was a widower, and well advanced in life in May, 1862: Finds that the defender was also addicted to habits of extreme intemperance, and the pursuer's father, who was in the defender's employ ment, seems to have taken advantage of these habits to suggest to the defender that the pursuer would make him a suitable wife: Finds that the first occasion on which the defender talked of matrimony to the pursuer was on Saturday the 10th May, and he did so at the instigation of the pur suer's father, they being both then in a state of intoxication. and the pursuer's said father himself admits that he thought the defender then spoke in jest, and nothing more would have come out of the matter had not the defender renewed the proposal on the following Saturday, when he was comparatively sober, and followed it up afterwards: Finds that the pursuer, apparently accommodating herself to her father's plans, accepted the defender without any previous wooing, and it is not very probable that her feelings can have ses tained any severe shock by his breach of contract: Finds that there is no evidence that the pursuer put herself to any expense in making preparations for the marriage, or that she was thrown for any length of time out of a situation: There fore, and in the whole circumstances, assesses the damages payable by the defender at the sum of twenty pounds, a quoad ultra assoilzies him; but finds him liable in expenses, allows an account of said expenses to be given in, and remits the same to the auditor to tax and report, and decerns.

Both parties appealed against this Interlocutor, and after hearing parties' procurators, the Sheriff pronounced the following judgment:

Having heard parties' procurators, under their mutual appeals upon the Interlocutor appealed against, proof adduced, and whole process, adheres to the Interlocutor sp pealed against, finding damages due to the pursuer; but, for the reasons stated in the following Note, modifies the damages decerned for to £10 10s sterling in all, for which, with interest, decerns against the defender; quoad ultra assolirs the defender, and finds the pursuer entitled to expenses, but directs them to be taxed on the lowest ordinary Court sesle and so far alters the Interlocutor complained of, but quoad ultra dismisses both appeals, and decerns.

NOTE. The evidence in this case, in the Sheriff's opinion,

esents some particulars which call for a larger sum of
mages than the Sheriff has now awarded, and others which
int to a lesser sum, or rather no damages at all. If the
cumstances under which the promise of marriage was made
e considered, it seems to be clearly made out that, although
e promise itself on the 17th of May was not made when the
fender was in a state of intoxication, yet it was made in a
id interval, preceded by almost five days' constant intoxi-
ion, in which he had been kept in a great measure by the
rsuer's father, and followed on the same night by a most
trageous outbreak in the defender's own house, in which
ncing and singing, in which the defender bore a part, went
till six o'clock in the Sunday morning. It is impossible to
d a promise of marriage made in such circumstances, if
y had stood alone, as either constituting a binding obliga-
, or affording any relevant ground for awarding more than
rely nominal damages. It is quite apparent that the
ender was inveigled into a promise of marriage by the arts
the pursuer's father, who was a clerk in his employment, in
ich the pursuer herself bore, if not a leading, at least a
siderable part. If the case, therefore, had rested there,
the defender had only endeavoured to get out of the en-
ement after such an entry into it, the Sheriff would either
e assoilzied him in toto, or found only nominal damages
But there is more in the case than this. For five
eks after the 17th of May, the defender continued a certain
ree of intimacy with the pursuer and her friends, calling
on them, and walking with her, although always, except
one occasion, under the guardianship of her father; that
pursuer gave proof that she understood the marriage was
ly to go on, by resigning her situation as a nurse in the
irmary, by giving it up and losing ten months' wages,
des her board. It is proved, too, that the defender was
king about for some employment to which he could put the
suer after her marriage, and he spoke of a very humble
certainly that of keeping a fish stall in the Candleriggs.
this her father would not agree, and the defender then said
would put the pursuer into partnership with his daughter,
give them £100 to begin with. The fault of the defen-
therefore, supposing him to have been inveigled in the
instance, when in a state of excitement arising from in-
perance, consisted in this, that after getting the bout over,
after, it is said, having even taken the temperance
ge, he did not repudiate or resile altogether from his
ner promise, but rather, from his conduct and occasional
ds, gave the pursuer ground to believe that he was in-
ed to go on with the marriage in good earnest. For his
rudence, or, it may be, culpability in doing this, the
riff thinks he should pay damages. But, adverting to
mode in which the promise was originally obtained, they
t be greatly modified, and therefore they are reduced to
10s, being the pursuer's wages as a nurse in the In-
ary for ten months. It is not a case, besides, in which it
be supposed the feelings of the pursuer can be much hurt
affected. A servant in the Infirmary, having wages at
guinea a month, and twenty-five years of age, proposing
arry a widower at the mature age of between fifty and
, cannot be supposed to have had her feelings very deeply
ged; the more especially as it appears that the defender's
duct, in thinking of the pursuer as a wife, is another proof
he truth of Lord Bacon's aphorism, that "Young men
y for mistresses, middle-aged men for companions, and
men for nurses.'

et. GEORGE PATERSON.

28TH MAY, 1864.

Alt. J. L. LANG.

COMMISSARY COURT, LANARKSHIRE-
GLASGOW.

COMMISSARIES SIR A. ALISON AND GLASSFORD BELL.)

notary before two witnesses. On the executor applying for confirmation, the Commissary Clerk refused, and the Commissary Depute confirmed his refusal. On appeal, the Commissary altered, holding that the deed was good, quoad the moveables, and granted confirmation, reserving the rights of all parties under the deed. A. B., residing in Glasgow, died, leaving a general disposition and settlement, executed shortly before his death, signed by one notary and two witnesses, containing a general conveyance of lands and heritages, as well as of his moveable means and estate, in favour of his wife. Under this deed he nominated and appointed his wife to be his sole executrix, granting to her full power to give up inventories of his estate, and to distribute the same, in terms of the settlement. After his death the widow applied to the Commissary of Lanarkshire for confirmation, as sole executrix appointed under the deed. Upon this petition the following note was written by the Commissary Clerk:

"The deed referred to in the foregoing petition is a It ought, settlement of both heritage and moveables. therefore, to have been subscribed by two notaries, but as it is only subscribed by one, the Commissary Clerk is of opinion that it is null even quoad the moveable estate, in accordance with the case of Ferrie, 23d January, 1863. For that reason he has refused confirmation of the deceased's estate in favour of the petitioner. In a similar petition (Elizabeth Wilson's executors) presented to Mr Commissary Bell on 8th April last, to have the above objection overruled, he pronounced the following Interlocutor:-'Glasgow, 13th April, 1864.-Having considered this petition and heard petitioner's procurator thereon, for the reasons set forth in the note annexed to the petition by the Commissary Clerk, refuses the prayer of the petition, and dismisses the same.-(Signed) Henry Glassford Bell.'

This petition and note having been presented to Mr Commissary Bell, the following Interlocutor was pronounced:

Having considered this petition, and heard the petitioner's agent thereon, Finds that it was decided in the case of Ferrie, Jan. 23, 1863, that a trust disposition of heritage and moveables, not duly executed by two notaries, could not be sus. tained, even in so far as it was a settlement of moveables. Therefore, and in respect the deed referred to in the petition is a settlement of both heritage and moveables, and is admittedly signed by only one notary, refuses to grant the prayer of said petition, dismisses the same, and decerns.

This Interlocutor was appealed, when the following Interlocutor was pronounced:—

Having considered the foregoing petition, along with the deed of settlement founded on, and the above Interlocutor of the Commissary-Depute, and heard the agent for the petitioner thereon, in respect the settlement of the deceased produced and founded on, which is signed by one notary and two witnesses, although invalid as a conveyance of heritage, is sufficient to settle the succession of the deceased's moveable estate, and is in all respects formal quoad that estate, and contains a regular nomination of the petitioner as executrix, and may truly be regarded as the testament of the deceased, alters the Interlocutor complained of, and grants the prayer tament- Confirmation-Heritable and moveable- the deed, and the right of any party interested to challenge it of the petitioner-reserving the rights of all concerned under Notary.—A general disposition and settlement, convey-quoad the heritage, if any left by the deceased. ng generally lands and heritages, was signed by one NOTE.-The testament or deed of settlement here founded

A. B., Petitioner.