defence substantially resolves itself into a challenge of the pursuer's title to demand and recover the documents and others sued for, and in particular the defender has objected to the confirmation of the pursuer's ward, Peter Peebles, on the ground (1) that the deceased James Peebles settlement had been improperly used in obtaining the confirmation, but in what respect the defender has not stated; (2) that the incapacity of the pursuer's ward had been concealed from the Commissary, and that the defender was about to have the proceedings set aside; (3) that no evidence of the confirmation of Peter Peebles had been exhibited to the defender, or intimation of the appointment made until this action was brought; and that the defender was always willing to give the pursuer access to said documents and others, and to deposit them in neutral custody until the issue of an application at defender's instance in the Court of Session, for the appointment of a judicial factor on the said deceased's estate: Finds, for the reasons given in the following Note, that none of these grounds of defence are well founded; therefore, repels the same, finds the defender liable in expenses; allows an account thereof to be lodged, and remits the same to the auditor to tax and report, and decerns.

bequest of the whole residue to him. Special legacies are bequeathed to the extent of £300, the entire movable estate being somewhat upwards of £1000. In the circumstances, the ward is not only nominated executor, but has the material and direct interest in the estate. The curator has got him confirmed, and must pay the legacies and administer the balance of the estate for beloof of the ward. There is no necessity to interfere with his administration by constituting a separate judicial manage ment as to his deceased brother's estate."

The Sheriff-Substitute has no right to review the procedure of the Commissary of Linlithgow, or to judge as to the sufficiency of the pursuer's ward's confirmation. of which, however, the Lord Ordinary appears to have approved, nor to hold the pursuer's title inoperative in the face of the view taken of it in his Lordship's Note. Then having the title, the pursuer, as is shown by the correspondence produced, made his demand on the defender for delivery of the documents and others in question, and which belonged to his ward, as executor, and gave the defender every necessary explanation before instituting this action.

The defender appealed; and parties having been heard, the Sheriff pronounced the following Interlocutor:

NOTE.-The deceased James Peebles, who resided in Linlithgow, by his settlement, dated 3d September, 1853, conveyed his heritage in liferent to his brother, Peter Peebles, then living in family with him, and after pay- Having heard parties' procurators under the defender's ment of certain legacies out of his movable estate, he appeal, upon the Interlocutor appealed against, the apconstituted his said brother residuary legatee, and nomi- peal involving only the question of expenses, Repels the nated and appointed him sole executor and universal objection now insisted in for the first time to the title of intromitter with his means and estate. James Peebles the pursuer, founded on the action being raised in nama died at Linlithgow on 11th October, 1864. In Novem- of the pursuer alone, as curator bonis for Peter Peebles ber following, Mary Peebles or Scott, a niece of the in respect such an officer appointed by the Court of testator, and one of the beneficiaries under his settlement, Session, though styled a curator and not a tutor, in presented an application to the Supreme Court for the reality stands more in the latter situation than the appointment of a curator bonis to the said Peter Peebles, former; in respect it is his duty entirely to manage on the ground that he was an infirm old man, 87 years incapable party's affairs, and to ingather and secure his of age, subject to fits of insanity, or of mental weakness estate, and to hold that he could not do so by an action in or confusion of mind, and quite incapable of taking the his own name, qua curator, without the concurrence of his management of his own affairs the accuracy of which insane ward, would be the same thing in principle as toba representations was attested by two medical practitioners. that a tutor cannot take the same steps without the o The Lord Ordinary, on advising this application, sus- currence of a child or pupil possibly of two years ol tained it, and by act and decree bearing date 1st Decem- Repels also the second objection stated to the insta ber, 1864, nominated and appointed the pursuer to be founded on the title as executor being made up in the curator bonis to the said Peter Peebles, with the usual name of the ward, and not in the curator's own name. in powers. As an act of ordinary administration, and as respect "factors loco tutoris and curators bonis, mas he was entitled and bound to do, the pursuer presented make up a title in the name of their ward, not their o a petition to the Commissary of Linlithgow to have his (Scott, 21st February, 1856);" and in respect the Lord said ward confirmed executor nominate to the deceased Ordinary, in the present case, when applied to to apunder said settlement, in the proceedings following on point a separate officer to administer the estate to which which the pursuer produced the act and decree appoint-the insane party had been appointed executor, declined ing him curator bonis, and he gave up and deponed to the inventory to be confirmed; and on 13th December, 1864, said Commissary ratified, approved, and confirmed to the pursuer's said ward his nomination as executor. The defender, who is one of the nephews of the deceased James Peebles, and a legatee under the settlement, in conjunction with another nephew, made application to the Court of Session on 1st December last, narrating the procedure which had already been taken to have a curator bonis appointed to the executor, and the grounds thereof, and on the representation that he had taken no steps to administer the deceased's estate by giving up inventory or otherwise, craved that a judicial factor should be appointed; but that application the pursuer opposed, and on 24th December following the Lord Ordinary (Barcaple) refused the defenders craving, and in that judgment the defender has since acquiesced. His Lordship expressed his views in a Note to the judgment in the following terms, which are decisive of the objections now taken by the defender to the pursuer's title in this action:-"There is a nomination of the ward, Peter Peebles, as executor, and a

to make such appointment, holding that there was solstantially but one estate, and that the curator bonis the insane party was entitled and bound to administe both estates: Therefore adheres to the Interlocutor under review, repelling defences: and, in the question of expenses, in respect the whole pleas of the defender resolv into an objection to the pursuer's title, which have been all repelled, and were in themselves untenable, alheres, also, in the question of expenses, and dismisses the appeal: and in respect it is admitted that keys and papers concluded for have all been given up, Finds it unneccssary to pronounce any finding thereanent.

NOTE. The papers and key concluded for in the acti having been given up, the question resolves itself into ce of expenses, and the legal title of the pursuer to institut the action, which was very ably discussed both by M Macleod and Mr Maclay. It was strongly contended by the latter, on the part of the defender, that the obje tion to the pursuer's suing in his own name as curar without the concurrence of the ward, was a well-founde objection; in respect the Court have held in more th one case, that, in an action directed against a curare

bonis in connection with the insane party's estate, it is necessary to call the insane party as well as the curator. But the Sheriff holds that these authorities do not apply to the present case, because there is an obvious distinction between the case of a curator bonis insisting in an action as pursuer for his insane ward's behoof, and one directed against him as curator for the ward. In the latter case there is an obvious necessity for calling the insane ward, as a party, as well as the curator, in an action which may end in attaching part of the ward's heritable or movable estate, because a decree against the curator alone could not operate as a warrant against that estate at all, being directed nominatim against a different party. But that reason does not apply to an action raised by the curator himself for recovery of the ward's estate; because, if the action proves successful, and the curator extracts the decree in his own name, qua such, it will only bring the subject gained under the control of a party who is bound by his office to administer and secure it for his insane ward's behoof. (See Blackie v. Milne, 14th November, 1838; Young v. Rose, 11th July, 1839-Dunlop's Cases, . vol. i.)

Act. MACLEOD & RALSTON. Alt. GALBRAITH & MACLAY.

14TH JULY, 1865.

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

NORMAN STIVEN v. JOHN CARNEGIE and Others. Sheriff Court Act-Notice of Appearance-Appeal— Competency.—In a summary action where defender had failed to enter appearance within the time specified Objection to defender being heard repelled by SheriffSubstitute, and appeal against this decision dismissed as incompetent.

defender, which is the extraordinary step the agent for the pursuer in this case insisted that the Court should now take. By the 7th sect. of the Sheriff Court Act, 1853, summary cases are dealt with in the same way as those commencing with a summons. The agent for the pursuer founded chiefly upon the third and sixth sections of said Act, and mainly upon the word "shall," which occurs in these sections, as being imperative. No doubt the third section implies that the defender ought to enter appearance within the specified time, but his failing to do so is dealt with in the immediately preceding section. By that (the second section), "where no appearance shall be entered for defender, the Sheriff may at any Court held after the day of compearance, give decree in terms of the summons, in like manner as at present, where no appearance is made for the defender." It is very obvious that the sixth section has got nothing to do with the notice of appearance, but is solely applicable to papers in a depending process. If the pursuer's agent was right in his contention, then decree in absence would require to be given, against which the compearing defenders would be forced to go through the form of being reponed on consignation of the expenses to be paid over to the pursuer. This is a general rule; but certainly in this case, where such expenses were so unnecessarily incurred, special cause could be shown against the application of the general rule as allowed by the statute, and therefore the pursuer could gain nothing but delay by his success in this point.

The pursuer appealed to the Sheriff, who affirmed by the following Interlocutor:

Edinburgh, 14th July, 1865.-The Sheriff having considered the pursuer's appeal with reclaiming petition in support thereof, and answers thereto for the defender, dismisses the appeal as incompetent: Finds the pursuer liable in expenses of the answers as the same shall be ascertained by the Sheriff-Substitute, and decerns.

THIS was a summary petition. Appearance was ordered within a certain number of days. A notice of appearance was lodged beyond the time, but before any decree or warrant had been given. When the case was called on first Court day, after expiry of the inducia, the pursuer's solicitor objected to the defender's solicitor being heard, and insisted for immediate decree as in absence. The Sheriff-Substitute pronounced the follow-purpose; and the second section does not render it iming Interlocutor :

Perth, 31st March, 1865.-The case being called on the roll of new actions, the pursuer's procurator objected to the defender's being heard on their preliminary objections, in respect that the notices of appearance were not odged within the days specified in the deliverance, repels aid objection, and orders the cause to the roll, that parties may be heard on the preliminary objections.

NOTE.-The Sheriff is of opinion that the Interlocutherefore the appeal is dismissed. tor cannot be appealed at this stage of the case, and The Sheriff may, however, add that, after reading the pleadings, he has formed the opinion that the appeal is not well founded on the merits. He cannot read the word "shall" in the third section as excluding all right to lodge a note of appearance after the lapse of the three days allowed for that perative on the Sheriff to pronounce decreet in the event of the note of appearance not having been lodged within the specified time. Act. SKINNER.

17TH JULY, 1865.

Alt. SKEET.

SHERIFF SMALL DEBT COURT, LANARKSHIRE—
GLASGOW.

(SHERIFF STRATHERN.)

O'NEIL, M'GOWAN & Co. v. PATTISON AND OTHERS.

Act of Grace.-Creditors who had alimented their debtors while imprisoned under diligence-Held not entitled, on their debtor's circumstances improving, to recover back the aliment.

NOTE.-The point raised by the pursuer's procurator as been often agitated in this Court, and decided adversely to the objection. Under the old form a sumnons could be called any time within a year after itation, and appearance then made was valid, it being pen to the defender to foreclose the pursuer by entering p protestation any time after the diet of compearance. summary cases, answers were received up to the time hat a certificate of no answers being lodged was issued, ollowed by a decree in default. It was never thought hat the mere lapse of time foreclosed the defender in ther class of cases from being heard, if he made appear- THIS action was brought in the Small Debt Court, and nce before decree was entered up against him. The the disputed sum formed one of several items sued for. gent for the pursuer in this case founded upon the The pursuers claimed repayment of aliment which they heriff Court Act, 1853. That Act, stringent as it cerainly is, does not introduce so unequitable a rule as to had expended on the defenders while in prison for debt old a person appearing as not appearing, and to compel due to them, and which they argued was as much exigible e Judge to give decree in absence, in the face of a present as the undisputed expenses of appprehension and im

18TH JULY, 1865.

LANARK.

(MR SHERIFF DYCE.)

prisonment. The defenders denied that a prisoner's aliment belonged to the expenses of diligence, contending SHERIFF SMALL DEBT COURT, LANARKSHIREthat the debtor's maintenance was a statutory obligation on an incarcerator who had resorted to the squalor carceris; and which could not be recovered back unless the creditor could show that the debtor, in making oath under his supplication, had falsely sworn that he was destitute of means of support. The Sheriff gave effect to this defence, and refused to sustain the claim.

This case decides rather a novel question, and for the result there is comparatively little authority. Lord Bankton (iv. 40, 10) observes, that the debtor, in order to obtain the benefit of the Act of Grace, "must swear "that he has not sufficient to maintain himself. Now, "what if the creditor shall thereafter recover payment of "his debt from the debtor, who procures a loan of the "money from some well-disposed person, or otherwise, can "the creditor, who has furnished him with subsistence for "perhaps some years, claim restitution of the same? I have "known a suit commenced for such claims; but though at “first sight it might seem absurd, since it is by the indul66 gence of the law that the debtor enjoys such benefit, and as a recompense for the loss of his liberty which the "creditor deprives him of, yet if the debtor has sworn "falsely, and had means, which he concealed, sufficient for “his maintenance, I apprehend the action is well-founded; "for if the case is so circumstanced, the oath was fraudu"lent, and could not have entitled the debtor to an aliment “which is only due when the party is not able to maintain "himself; so that the money advanced for that purpose is "ob non causam without any good consideration, and "must be restored."

In Carnaby v. Duncan, 1st December, 1815, F. C., which was an action by a jailor for recovery of his fees from a debtor who had obtained the benefit of the Act of Grace, the doctrine so stated by Bankton was pleaded as sound in law without contradiction. But in the recently published lectures of Professor More, vol. ii., p. 334, it is there laid down on the authority of Carnaby's case, "that the aliment furnished to a prisoner, as "well as any other expense incurred by the creditor in "consequence of his incarceration, is a debt of which the "creditor may demand repayment from the prisoner should "he ever come to have funds." The decision founded on, however, does not support any such view of the law; as has been seen, the action was by a jailor for payment of his fees, and the decision was that these fees were exigible.

An analogous case decided under the existing Poor Law Act, Henderson v. Alexander, 18th July, 1857, 29 Jurist, p. 559, was adjudicated by Lord Ardmillan, who held that aliment furnished by an inspector to a pauper could not afterwards be recovered on the pauper succeeding to considerable means. The judge regarded the aliment as a donation prescribed by law; Stair's Institutes were cited (I. 8, 3) as sanctioning the ground of decision: "In all cases," says the learned commentator, "aliment or entertainment given to any person without paction is presumed a donation, if the person was major and capable to make an agreement."

Act. PARTY.

Alt. J. B. CHRISTIE.

ARCHIBALD COCKBURN v. JAMES KAY. Highways-General Turnpike Act-Toll dues.—A private carriage was driven through a toll-bar with its Το owner, and back with a friend of the owner. dues were demanded and paid both going and returning, In an action for repetition of the toll dues paid the second time-Held that no toll dues were exigible the second time, as there was no new loading in the sense of the Act, and decree granted for repetition.

THE pursuer was driven from his residence, Kersewell House, to the Carnwath railway station, and, in going, passed through the Stonemuir toll-bar, when he paid toll. He took the train to Edinburgh, and sent back his carriage to Kersewell House, with a friend who had come to pay him a visit. In returning, toll was again demanded at Stonemuir toll-bar on the ground that there was a new loading. Payment was made, and the present action was raised against the toll-keeper for repetition. The Sheriff, in giving judgment in favour of the pursuer, said—

The pursuer in the present action sues for repetition of certain toll duties exacted by the defender, who is the tenant of the Stonemuir Bar, in respect that after having been driven in his carriage to the Carnwath railway station, whence he proceeded by train to Edinburgh, he sent back in said carriage to his residence at Kersewell, a gentleman whose arrival had been previously expected by the train from Edinburgh on a visit to himself. By the 42d section of the General Turnpike Act it is enacted that "the tolls made payable by Local Turnpike Acts shall be paid for in respect of all horses or beasts of draught let out on hire, or drawing any postchaise, wagros.or other carriage, every time passing, whenever any new hiring thereof takes place;" and by the 14th section of 4 and 5 William IV., cap. 72 (the Local Act), it is inter alia enacted "that tolls are to be exacted only once a day; but in case the same waggon, wain, or cart, or other carriage, &c., shall return and pass such gate or turnpike with a new loading a second time, or ofttimes, in the same day, then they shall, in that case, be subjected to pay the tolls for each time they shall so pass with a new loading." The question then for consideration in this case is, was the defender warranted in exacting a second tell on the occasion, and in the circumstances libelled? I am, after mature consideration, of opinion, for the following reasons, that he was not entitled to the double duty. Now, although the expression carriage in both statutes is used, indeed, in its general sense, viz., that in which anything is carried, and is therefore, applicable alike to every description of vehicle named therein, it will be perceived that in the Local Act, telks varying amounts are leviable on three distinct species of carriages; but while it is freely admitted that in the event af any one of the aforesaid classes of vehicles being let out e hire, the occurrence, on any radical change, either of the gas or the individuals so carried, would legally subject the biser to payment of a second toll, both in respect of the new hiring as well as on account of a new loading; it does not, however, by any means follow that in every case where there has been a variation in the description of the goods or individus carried the exaction of a new toll is therefore warrantable, as it has frequently been held, in the Sheriff Court, at least, that when both loads, i.e., in going and returning, were for bebo of the owner of the vehicle he is not liable in a second tak. It has also been decided, even where the cart employed was actually a hired one, and the loading having subsequently been converted from potatoes into flour, both of which were the property of the hirer, that exaction of a second toll was illegal. in respect that the foresaid 41st section of the General Act

to it: Therefore, and under reference to the annexed Note, disallows any proof in support of the defence of rerit 13 cmrici except in as far as founded on the said averments in Article 4, the same being comprehended in that part of the Article be ginning with the words, "that taking advantage," to the end, and of which, before farther answer, allows said defender a proof, and allows the pursuer a conjunct probation: Grants diligence against witnesses and havers, and appoints the are to be enrolled in the diet roll of the 13th instant, to fix a dist

(Signed) HENRY GLASSFORD BILL

pleads, in the next place, that the article in question, though printed by him, or at his printing-office, was neither written nor punished by him, and that he expressed his regret to the pursuer, which he now again judicially repeats, that said arti-, cie should have appeared, and declares his belief that there is no foundation for any imputation on the pursuer's character, and his willingness, if required by the pursuer, to make this declaration by public advertisement, and he farther judicially tenders five guineas in name of damages: Finds, in point of: law, First, that the printer as well as the publisher of libellous, of proof. matter is responsible to the party calumniated, seeing that the printer is necessarily accessory to the publishing where publi NOTE. In the case of Scott v. M'Garin, 25th June, 1821, cation follows, and where it is clear that the printing took Murray's Reports, vol. ii., p. 484, which was an action of place with a view to publication (see cases reported in Porth- damages for defamation by a Roman Catholic clergyman, in wick, pp. 368 and 422): Finds, Second, that although an respect of certain articles in the Glasgow Chronicle newspaper, acknowledgment and retractation of a slanderous charge do not and in a publication called the Protestant, in which the pur entirely remove the offence, they go far in mitigation of damages, I suer was held up as a person who had improperly extorted being calculated tollere injuriam by a restoration of fame, and this money from the poor of the Roman Catholic persuasion for more especially in the case of one who cannot be supposed to the purpose of erecting a church in Clyde Street, Glasgow, be influenced by any animus injuriandi (Borthwick, ut supra, veritas convicii was pleaded in defence; but it was distinctly p. 441): Finds, in the whole circumstances, that the retracta- laid down by the Lord Chief-Commissioner that the general tion and apology, with the accompanying offer of said de- allegation could be justified only by a proof of particular fender, entitle him to be liberated from the action on the facts, and that these must be stated "with time, and place, conditions proposed; Therefore decerns against him (James and person, so as to put the pursuer on his guard as to what Kay, defender,) for the sum of five guineas in name of was meant to be brought against him." Both before and solatium and damages, and quoad ultra assoilzies him, he since Scott's case a general averment of veritas, where the being bound to advertise as offered, if called on by the pur- calumny consists of a general aspersion of character, has been suer to do so: Finds him also liable in expenses; allows an invariably found not relevant. In M'Rostie, 14th November, account thereof to be given in, and remits the same to the 1849, where the slander complained of was that the pursuer auditor to tax and report, and allows this decree to go out "carried on cases for the purpose of incurring expenses and be extracted as an interim decree in causa: Finds, as against poor people, and for the purpose of robbing poor regards the other defender, Keane, that he pleads that "the people, and for the purpose of ruining poor people," it was statements in the article having been generally rumoured at held incompetent to allow a proof of a general averment that the time, the defender was justified in inserting it in his the pursuer, "in his capacity of a law agent, instigated and newspaper:" but Finds that, even if the averment on which carried on lawsuits for the sole purpose of creating emola this plea is founded were true, which is denied, the existence ment to himself, and in wanton disregard of the interests of of a slanderous report, or its prevailing currency, does not his clients, and of the loss or ruin which might be thereby justify its repetition, each repetition being a new injury, and entailed on them." This was considered to be a mere ecia this is a fortiori applicable to its publication for the first of the slander complained of, and inadmissible as matter of time in the columns of a newspaper (Borthwick, p. 299, and proof, unless there was a specification of time, place, and Smith, ut supra, p. 246); therefore repels the said defence circumstances, and particular instances given of the kind of in as far as prejudicial to the action, reserving consideration general conduct imputed to the pursuer. Reference is made of it in as far as it may go towards mitigation of damages: in the Lord Ordinary's Note to a number of cases where tha Finds that said defender Keane admits that the article com- general rule had been fully confirmed. Where it is only a plained of contains two inaccuracies which he corrects in his diminution of damages that is aimed at, an averment tist defences, and states that he regrets they should have occurred, the matter was generally reported may in certain instances and tenders the sum of £5 in reparation thereof, and pleads be substantiated by evidence; but the defender Keane ba that this retractation and tender are sufficient to exclude the not stated his defence in that way, and the alleged currency action quoad ultra: but Finds that the judicial correction of of a report among a certain section of the Roman Catholics said alleged inaccuracies is unaccompanied with any with the district, namely, the "Irish Catholics," that the pursuer's drawal of the great bulk of the actionable matter libelled, and conduct was "intolerant, unjust, and offensive,” was not a therefore leaves the case very much where it was, and not "general report" pleadable in mitigation. being accepted by the defender, is altogether inadequate to exclude the action: Finds that said defender pleads, lastly, that the article being substantially true, the pursuer is not entitled to recover damages: Finds that it is settled law, that veritas convicii, when established in a competent manner is a good defence to a claim of damages for slander (M'Kellar, June 14th, 1859): But finds that in order to enable the defence of veritas to be entertained, the party pleading it must set forth in the closed record the precise facts which he undertakes to prove in justification, and if the libel consists of general aspersions upon character, a mere allega tion that these aspersions are true, without condescending on any facts tending to support them, is not sufficient to make it competent to allow a proof of veritas (Smith, ut supra, p. 243, et seq., and authorities there quoted): Finds that, with the exception of the specific averment as to the pursuer having forced some of his parishioners to sign a paper which he and they knew to be false, the whole of the newspaper article now in question consists of general aspersions of the pursuer's character and conduct; and the said defender has not set forth in his defences any specific instances of the kind of general conduct charged in the said article, but has put upon record merely that he "believed at the time, and now avers that the statements which the article contained were substantially true:" Finds that there is thus no foundation laid for any proof of the veritas convicii, except as regards the signing of said paper, the facts and circumstances connected with which are more particularly condescended on in Article 4 of the defences, and certain productions have also been made relating

(Initialed) H. G. B.

the Sheriff pronounced the following Interlocutor:The parties having appealed and having been heard,

the

Glasgow, 18th February, 1865.-Having heard parties procurators under the mutual appeals for the parties upon Interlocutor appealed against, closed record, and whole process Adheres to the Interlocutor appealed against, in so far as t allows the proof therein mentioned, in so far as regards the de fender, Keane, with reference to the views on the relevancy the proof offered stated in the following Note: But in respec said defender alleges that he has, since the record was made up and closed, received information as to specific acts on the pur part justifying, or at all events materially alleviating the bility attributed to him in using the words said to be shar ous libelled on, opens up the record, and allows the defend Keane, on payment of four guineas of interim expenses to the pursuer, to lodge in process a minute specifying the speci acts on the pursuer's part which he alleges and offers to pref in support of his defence of veritas convicii; allows the pursuer to see and answer said condescendence within six days after it is lodged, and remits to the Sheriff-Substitute to adjust and close the record of new, and to allow a proof of said allega tions in so far as they may appear to be relevant, and do thereafter in the cause as to him may seem just-said con descendence to be lodged, and payment of the £4 4s of et penses to be made, within eight days from this date; and in so far as regards the other defender, Kay the printer, adheres