7TH AUGUST, 1865. SHERIFF SMALL DEBT COURT, LANARKSHIREGLASGOW. (SHERIFF STRATHEARN). mises, or for any other purpose not domestic, at rates and on terms and conditions as shall be agreed on between the Com missioners and intending consumers. The section, however, does not enact that when water is used for a proper domestic purpose, but through the intervention of a new, and it may be wasteful appliance, that the appliance shall change the nature JOHN BURNET, Secretary to the Glasgow Water Works of the use, and convert it into other than a domestic purpose; Commissioners, v. JOHN Rосhead. Glasgow Corporation Water Works Act, 1855-Water -Domestic use.-IIeld that the use of water, by means of a hose, for cleansing the windows and area of a dwelling-house, is a proper domestic use, and the occupier of the house held not liable to assessment for non-domestic purposes. THE pursuer, as Secretary to the Glasgow Corporation Water Works Commissioners, sued the defender, in respect of his dwelling-house in Newton Place, for 15s, being a charge for supply of water for other than domestic purposes, "for the year from 28th May, 1864, to 28th May, 1865;" and the schedule intimating the claim was dated 22d December, 1864, when the year for which the charge was made had fully half run. The defender had been served with a previous notice on 26th July, 1864, intimating a claim for domestic water rate, and public water rate, for the same house and year, and these rates were paid. The Sheriff, in dismissing the case, said: The ground on which the pursuer demands the disputed rate of 15s, is that the defender applied a gutta percha pipe or hose to a water pipe inside his house, and thereby led the water outside for the purpose of cleaning the area in front of his house, and his house windows. The Water Commissioners, in their published table of rates for other than domestic purposes, applicable to the year in question, under the head "General Charges," had introduced the following:-"Leather or gutta percha hose, when used for places of business, 20s and upwards, according to special agreement; when used outside of dwelling-houses, 10s and upwards, according to special agreement.' The defender contended that in using the water for so clean. ing his area and windows, he was putting it to an ordinary and necessary domestic purpose; that contention was hardly disputed by the pursuer, and the Sheriff-Substitute has no doubt of its soundness. But there remained the question on which the pursuer seemed mainly to rely-Did the application of the hose alter the character of the use? The pursuer said that in the schedule of 26th July it was expressly intimated that the domestic and public rates therein charged did "not cover the use of leather or gutta percha hose, which must be specially arranged and paid for in addition;" and that the same thing had been notified in the table of rates published prior to Whitsunday, 1864. The object was to discourage the use of hose, which, it was said, led to great waste of water, and that nearly every inhabitant assessed for hose, in the same circumstances as the defender, had paid the rate as charged. The alleged waste of water by the hose, and the acquiescence of others, did not establish the right to make the demand, and that right depends on the statute under which the Commissioners have power to assess and levy. The schedule of 22d December, charging the defender with the disputed rate, bears that it is imposed under the 87th section of "The Glasgow Corporation Water Works Act, 1855;" that is, the section which authorises water supply for other than domestic purposes. But, on referring to it, that section gives no sanc. tion whatever to the charge; it is there provided that water may be supplied for steam engines or railway purposes, or for shipping, or for warming or ventilating any dwelling-house or other premises, or for working any machine or apparatus, or for cattle, or for horses or washing carriages, when such horses or carriages are kept for hire or are the property of a dealer, or for gardens, fountains, or ornamental purposes, or for flushing sewers or drains, or for any trade, manufacture, or business, whether carried on in any dwelling-house or in any other pre and it would have required such an enactment to justify the pursuer's charge. Having determined that the act of cleaning a house, ara, and windows, with water, is a domestic use, it follows that the Commissioners have no power to prevent the water being thrown into the area or on the windows by means of hose, any more than by means of water-pails. Undoubtedly, a check is placed on the misuse of water by any inhabitant, whether in allowing his house cisterns, pipes, or stop cocks to get out ef repair, causing leakage (Water Works Clauses Act, 1847, Sects. 540, 55), or by undue consumption (Water Works Clauses Act, 1863, Sect. 16); and power is given the Commis sioners' servants to enter any house, within certain hours, to detect offenders; and authority is conferred to turn off the water supply altogether from any such inhabitant, besides inposing penalties. If, therefore, these checks are inadequate, then others more stringent must be provided by the Legisla But power has not been given the Commissioners to alter a domestic purpose into a non-domestic purpose because of the apparatus which may be employed in the use, which is precisely what they have been doing in assessing for hose. ture. The defender said, and perhaps the remark was just, that hose could be so used as to save rather than waste water in washing either window or area, because, when the quantity necessary had been thrown, the water could be instantly stopped; whereas, if pails were employed, it was found that the contents were invariably dashed on the window or pave ment, and allowed to run waste, rather than incur the trouble of returning any portion into the house. Sheriffs SMITH and MURRAY concurred. 7TH AUGUST, 1865. SHERIFF COURT, PERTHSHIRE-DUNBLANE (SHERIFFS E. S. GORDON AND GRAHAME.) CHRISTOPHER FINLAYSON v. JAMES GUTHRIE AND WILLIAM GUTHRIE. Process-Title to Sue-Possessory Judgment-Servitude. -Held (1) that an unrecorded disposition, upon which seven years uninterrupted possession has followed, is a sufficient title to award the disponee the benefit of a pos sessory judgment; and (2) that conterminous proprietors who had brevi manu shut up a drain, in which base and surface water had been in use to flow for seura years and upwards, prior to their operations, wee bound to restore the drain, and were liable in damages to the owner of the dominant tenement. ON 5th March, 1863, the pursuer, the proprietor of a dwelling-house and other premises in Dunblane, with the pertinents, presented a petition stating that the ground on which his house and premises were situste naturally and gradually sloped to the south; and, fr conducting the house and surface water from his pro perty, there had existed for forty years, or at least for seven years and upwards prior to June, 1862, a drain leading, by the natural inclination of the ground, along the close in front of his house; thence at an angle through ground belonging to him; thence westwards, where the drain was causewayed with stones, till it joined the conduit along the footpath of the Dunblane and Callander Road. He also stated that he and his authors had been in the uninterrupted use and possession of said drain, and that said house and surface water had been in use to flow thereby uninterruptedly for forty years, or at least for seven years and upwards prior to June, 1862. He averred that the defenders, who had recently acquired a feu immediately to the south of his property, had, in the summer of 1862, brevi manu filled up said drain with earth or other material, and had otherwise destroyed the same; and that their operations had had the effect of destroying the drain, and of damming up the house and surface water within his premises. He concluded by stating, that his "property, or otherwise the right of "servitude and possession belonging to him, in the use and enjoyment of the said drain or water-course, had "been, by the foresaid operations, illegally and unwar"rantably interfered with and invaded" by the defenders. He prayed the Sheriff to ordain the defenders "instantly to restore the said drain to the condition in "which it was prior to their operations thereon;" and failing their obtempering such decerniture, "to grant to and authorise the pursuer to employ workmen to restore "the said drain as aforesaid, at the expense of the defen"ders; and on the amount of the expense thereof being "ascertained, to decern therefor against the defenders; "and on the said drain being so restored, to interdict "the defenders, in all time coming, from interrupting or ** molesting the pursuer in the use and possession thereof." The petition also included for £20 in name of damages, for the loss and damage occasioned by the defenders' operations, and for expenses. The defenders having entered appearance, a record was made up on condescendence and defences. The pursuer produced, as the title to which he ascribed his possession, a disposition in his favour by James Reid, dated 23d June, 1854, and recorded (after the action had been raised) in the register of sasines, at Perth, on 20th March, 1863. The pursuer pleaded on record, (1) that having been in possession in virtue of a written title, the defenders had no right to interfere with his use and possession of such drain; (2) that on the defenders' own admission their operations had been unwarrantable, and he was entitled de plano to a possessory judgment; (3) that the defenders were bound instantly to restore the drain, and failing their doing so he was entitled to have the same restored at the defenders' expense, and to interdict against them. The defenders pleaded, -(1) that the disposition founded on bearing ex facie that the property claimed by the pursuer is bounded by that belonging to the defenders, the pursuer was bound to instruct by some ther title the right of property, servitude, or possession claimed by him; (2) that the pursuer having produced to infeftment, he had no claim to a servitude such as that alleged by him; (3) that his title, having been obtained from a party who had no title, can afford no pport to the right of servitude claimed; (4) that the title of the pursuer's author, Reid, having contained no lause of pertinents, he could not validly convey to the pursuer a right which he himself did not possess; (5) hat the defenders having in their operations exercised heir right of property without interfering with any legal ight of the pursuer, they were entitled to absolvitor; 6) that the prevention of filth on their property was a egitimate exercise of their legal rights, and could form no ground of complaint; (7) that the pursuer having agreed to the removal of the nuisance, and the defenders having done nothing more than what was agreed to, he is barred from now making objection. The Sheriff-Substitute, before answer, allowed the pursuer a proof of his averments, and the defenders a proof of their defences, and conjunct proofs. Both parties led proof at great lengths, and, at the hearing on the concluded proof, the pursuer pleaded as follows:(1) his written title was sufficient to entitle him to the benefit of a possessory judgment; the validity of his title, which is ex facie regular, could not be questioned in a summary action, Knox, 26th May, 1827, 5 S. 714; Liston, 3d Dec., 1835, 14 S. 97; Johnston, 5th March, 1862, 34 Jur. 350; (2) a bounding charter, without a clause of parts and pertinents, does not exclude a party from pursuing a declarator of servitude over adjoining land, in respect of alleged possession, Beaumont, 11th July, 1843, 5 D., 1837, multo magis, here the pursuer's disposition, which contained a clause of pertinents, was sufficient to warrant a possessory judgment; (3) the pursuer having proved uninterrupted possession of the drain as an easement to his property for seven years and upwards antecedent to the defenders' operations, he was entitled to be protected in its use, and the defenders were bound to restore the same; (4) there was no concluded agreement whereby the pursuer agreed to shut up, or cease to use the drain; besides, such an agreement could not be proved by parole, M'Lean, 1st July, 1832, 12 S. 865; (5) the pursuer having sustained damages by the defenders' wrongful operations to the amount claimed, he was entitled to decree therefor in this action, A. S., 10th July, 1839, sect. 138. The defenders cited in support of their pleas, Saunders, 26th Feb., 1830, 8 S., 605; 2 Erskine 9, 3; Bell's Principles, 993. The Sheriff-Substitute thereupon pronounced the following Interlocutor: Dunblane, 2d November, 1864.-Having heard parties' procurators, and made avizandum, Finds, in point of fact, that the pursuer and respondents are in possession of, and claim to be proprietors of certain subjects in Bridgend of Dunblane; that, under the present process, the pursuer asks to be protected in his possession of a drain or water course, by which the surface, and other refuse water, from his and adjoining subjects, is discharged into and along part of the subject now in the respondent's possession, and to the use of which drain or water course the pursuer alleges that he is entitled, in respect, alternatively, of an uninterrupted use thereof, by himself and his authors and predecessors, as proprietors of his said subjects; or as being entitled, by his own peaceable and uninterrupted possession and use thereof, for seven years, to the benefit of a possessory judgment therein; that, as evidence of his title to his said subjects, the pursuer has produced three deeds-the first, which is No. 11 granted by James Wright to Thomas Finlayson; the second, of process, being a disposition, dated 7th August, 1806, which is No. 12 of process, being a disposition, dated 17th July, 1837, by Henry Finlayson to James Reid; and the third, which is No. 3 of process, being a disposition, dated 23d June, 1854, by the said James Reid to the present pursuer: that upon said first-mentioned disposition no infeftment ever followed, and that said second disposition was granted by the apparent heir of the said Thomas Finlayson, title; that by the said third disposition, the said John Reid, with whom he never connected himself by making up any who, of the date thereof, had taken and recorded infeftment in his own favour, in virtue of the precept contained in the said before-mentioned disposition in his favour by said Henry Finlayson, conveyed to the pursuer his said subjects, with pertinents, but that no registration of said disposition in the pursuer's favour in any register of sasines was made till 23d pursuer is, in respect of his title to his said subjects, and March 1863; that, in virtue of the personal right thus acquired, the pursuer at once entered into possession of his said subjects, and so continued to possess them till 23d March, 1863, when the deed was recorded; that, previously to the pursuer thus entering into possession, a certain portion of the surface and other water from the pursuer's said subjects was in use to flow into and along the piece of ground or yard then belonging to the Honourable F. H. Drummond, but now in the possession of, and in virtue of the feu charter, No.gress of titles is manifestly inept, and the pursuer cannot dim 16 of process, claimed to be the property of the respondents; that, shortly after the pursuer had entered into possession of the subjects contained in said disposition, he, having occasion to build a new byre, and which byre came in the way of the said surface and other water, flowing to the defender's subjects as formerly, proceeded to make, under and through his said byre, a drain by which said water, from his own and adjoining premises was conducted into and along the defenders' said subjects; that, by the formation of this drain a larger quantity of surface and other water was thrown upon the defenders' said subjects than previously had been done; that in the month of June, 1862, the respondents shut up the outlet by which the water came through said drain, and thus not only destroyed the pursuer's beneficial use thereof, but, by preventing the outlet for the surface and other water, caused it to remain and lodge at and about the pursuer's said subjects, to a greater extent than formerly, and thus, in time of heavy rain, occasioning at least inconvenience to the pursuer, if not, to some extent, injury to his property; that, previously to these operations of the respondents, the pursuer had, in virtue of, and possessing under, his written title, as before-mentioned, enjoyed peaceable and uninterrupted possession and use of said drain, for a period of upwards of seven years; that he now claims, and is not proved to have ever abandoned his claim, to the free use of the drain in question: Finds, in point of law, that previously to the pursuer obtaining the disposition No. 3 of process, he neither by himself nor by any of his alleged predecessors, can be held to have possessed any valid title to his said subjects or part thereof; that, therefore, even though he had not, by the formation of his new drain, altered the state of his possession of the alleged right to an outlet of the surface and other water into and along the respondents' subjects, he could not take advantage of said previous possession: but, however, Finds that the personal right acquired by him, under his said disposition, followed as it has been by seven years' peaceable and uninterrupted possession and use of said drain, entitles him, in the present action, to the benefit of a possessory judgment; that the respondents in shutting up brevi manu, and without the pursuer's consent, the said drain, acted unwarrantably, and the pursuer is entitled, under the present action, to require them to restore his possession to its former state: further, Finds the pursuer entitled to the sum of £2 as damages, in respect of inconvenience and injury caused by the shutting up of said drain; and decerns and ordains the respondents, conjunctly and severally, within fourteen days from this date, to restore the said drain to the condition in which it was prior to their operations thereon, as prayed for in the petition; and failing their doing so within such period, grants warrant to and authorises the petitioner, at the sight of William Stirling, jun., Architect, Dunblane, and at the respondents' expense, to employ workmen to restore the drain or water-course as aforesaid, the expense of doing so to be reported to the Court by the said William Stirling: Finds the respondents, conjunctly and severally, liable in expenses of process; of which allows an account to be given in, and remits to the auditor of Court to tax and report, and decerns. (Signed) JOHN GRAHAME. NOTE.—The relation in which the parties in this action stand to each other is pretty fully brought out in the preceding Interlocutor. They are possessors of certain adjacent subjects in Bridgend of Dunblane, and the present litigation has arisen in regard to the pursuer's claim to be protected in his possession and use of a drain, by which surface and other water from his own and other adjoining subjects is carried into and along a piece of ground in the respondents' possession, and which they allege is held by them in virtue of a valid feudal title. Into the question of the feudal validity of the titles of the pursuer and respondents, it is not necessary to inquire; for it appears to the Sheriff-Substitute, that the important question to be determined in the present case is simply whether the the Thus, the only ground on which, as it appears to the SheriffSubstitute, any objection can be raised to the pursuer's bi entitled to a possessory judgment in regard to his posses and use of the privilege or right in question is, that it is the enjoyment of which it is not competent to him to under the disposition in virtue of which he possesses b's s jects. But on this point also, the Sheriff-Substitute this there is no failure in the pursuer's case. The right or priv lege of ejecting or carrying out surface or other refuse w from a superior or dominant subject into or along a lower t servient subject, is one of the servitudes most generally exercised, and best known in Scotch law, and may reasonably be presumed to be comprehended within, and conveyed to the pursuer by the clause, with the pertinents," which is cca tained in the disposition, in virtue of which his seven years possession has proceeded. The Sheriff-Substitute thinks tha the attempt which the respondents have made to prove that the nature of the substance which flowed through the drai in question, was such as to make the use of the drain inco petent, has not been successful. What the respondents allege upon this point is, that the drain has more of the character of a common sewer than of a mere outlet for surface water; and, therefore, that no servitude in regard thereto could be acquired by the pursuer. Of this allegation of the respondents, there is, however, no sufficient proof. None of the residents in either the pursuer's or adjacent properties, who were adduced as witnesses on this point, gave any evidence of either having themselves put or seen others putting or causing to be put any filthy matter through the drain. Some of these witnesses, no doubt, spoke to the polluted state of what came from the outlet of the drain, and which was in use to lie stagnant in the sun, on the defenders' subject, at the back of the pursuer's premises; but still from this, it does not necessarily follow that any more than the surface water, part of which flowed from the close or court in front of the pursuer's byre, ever was put into, or passed through the drain, on to the defenders' subject. With the effect, caused by the flowing of the surface water into the respondent's subjects, we have not here to do. It may, and indeed is proved to, have caused a state of matters which constituted a nuisance to the neighbourhood, but without the respondent's becoming thereby entitled, at their own hand, and without judicial authority, to shut up the drain. On their own occount, they could not do so, nor yet could they so act on behalf of others, or for the public interest. Our statute law has provided a method of obtaining a remedy, in the case of such nuisances; and though the method therein defined may not always be readily put in force, or made effectual, he who proceeds otherwise, does so at his own risk. However excellent his motive may be, he who, without authority, interferes with his neighbour in his pos session and use of any privilege not declared to be illegal, will, under our legal system, in which the principle of the end justifying the means has no place, be held to be a wrong doer, from whose proceedings, the party formerly in the enjoyment of the privilege so interfered with, may obtain the law's protection, which, if necessary, will be extended to the effect of not only requiring the restoration of the possession of the privilege interfered with, but in protecting its future exercise, until it is declared to be illegal by a competent tribunal. NOTE. The present process is of a possessory character, and in the form of a summary petition. It does not seek to declare, or to constitute conclusively, a permanent right to the servitude in question. It craves that the respondents be ordained "to restore the said drain or water-course to the condition in which it was prior to their operations," etc; and failing their implementing the order, to grant warrant to the petitioner to do what is necessary for that purpose, and the petition also craves interdict against the respondents. The title of the petitioner, dated in 1854, is sufficient, though a personal title, to support the possessory right, if possession for seven years be proved, as the Sheriff thinks it has been. It appears, therefore, to be unnecessary to pronounce findings as to the titles prior to 1854, which might affect the parties in questions which may be raised as to the right to the servitude as a permanent right, and these findings have therefore been recalled as not necessary to the decision of this process. other respects the Sheriff concurs in the views of the SheriffSubstitute. Even if the run of water may have been at times a nuisance, the proper course for the respondents was to have got the nuisance put down or removed by legal authority, not to have done that which might have increased the nuisance if the flow of water was allowed to accumulate, and which has had the effect of putting an end to a run of water which has existed for seven years at least. Such a right can be extinguished only by the judgment of a Court in an action (not of a summary and possessory character) declaring that the right does not legally exist, and permitting the filling up of the run of water. Act. T. SOUTAR, Crieff. (Initd.) E. S. G. Alt. J. M'LEAN, Dunblane. 25TH JULY, 1865. SHERIFF COURT, KINCARDINESHIRE STONEHAVEN. (SHERIFFS SHAND AND DOVE WILSON.) In The only other point to which the Sheriff-Substitute thinks PATRICK DICKSON, Trustee on the Sequestrated Estate nor does he think that the pursuer is himself in a position in which he can strongly urge his claim upon this point. He does not appear, previously to the operation complained of, to have been himself very careful as to the state of his subject, either in regard to cleanliness or freedom from the damp which he now says he finds so destructive of his comfort. The state of his subject, in this respect, does not appear during any period of the pursuer's possession to have been very creditable to him; and, in the whole circumstances, the Sheriff-Substitute does not think that on account of the increased dirty water supply, which the respondents' operations have forced back upon the pursuer's subject, he is entitled to larger amount in name of damage than has now been Awarded. whole The Sheriff-Substitute has only to add, that he cannot but regret that the matter which is here in dispute should have been brought into Court at all, and that in regard to a matter 10 comparatively trifling, either of such near neighbours as he pursuer and respondents should have preferred the present ecessarily tedious and expensive process to an amicable xtra-judicial arrangement. (Initd.) J. G. Both parties having appealed, the defender on the cause, the pursuer appealing only against (1) the inding as to the invalidity of his title, and the alteration of his possession, as being unnecessary and irrelevant; nd (2) the inadequacy of the damages awarded. The Sheriff, on 7th August, 1865, sustained the pursuer's ppeal, to the effect of recalling the said finding as to he invalidity of his title and the alteration of his ossession, and quoad ultra adhered to the Sheriffubstitute's Interlocutor, and dismissed the appeals. He dded the following ActsFraud.-In an action of reduction under the Act 1621, c. 18—(1) Held that the action was competent in the Sheriff Court by virtue of the Bankruptcy (Scotland) Act, 1856, sect. 10, and the Bankruptcy and Real Securities (Scotland) Act, 1857, sect. 9, even although the summons contained no petitory conclusions; (2) Circumstances under which an assignation by a bankrupt to his son of the lease and stocking of a farm was set aside as struck at by the Act 1621, c. 18. THIS was an action raised by Patrick Dickson, writer in Laurencekirk, trustee on the sequestrated estate of Wm. Murray, now or lately tenant of the farm of Mill of Barns, Kincardineshire, and presently a prisoner in the prison of Stonehaven, and, as such, representing the creditors on the sequestrated estate of the said William Murray, and who were true creditors of the said William Murray at and prior to the time of his granting the pretended assignation after-mentioned, against David Murray, millwright, residing at Mill of Barns aforesaid. The conclusions of the action were that the defender ought to be decerned to exhibit and produce a pretended assignation granted by the said William Murray to the defender, of a lease for nineteen years from the term of Whitsunday, 1858, of the farm and mill of Mill of Barns and others in the parish of Marykirk, entered into between the said William Murray and the Right IIon. Francis Alex. Keith Falconer, Earl of Kintore, and dated 12th August, 1857, and 18th March, 1858; as also of the whole stocking, cattle, bestial, implements of husbandry, and household furniture in the offices and dwelling-house of the said farm and mill of Mill of Barns, and generally of the whole effects belonging to the said William Murray on the said farm-said assignation being dated 3d January, 1863, or of whatever other dates, tenor, or contents the same may be, to be seen and considered; and the said pretended assignation, with all that has followed or may follow thereon, ought to be reduced, rescinded, annulled, and decerned to have been from the beginning, to be now, and in all time coming, null and void, and of no avail, force, or effect in judgment or outwith the same in all time coming, and the pursuer, as trustee aforesaid, reponed and restored thereagainst in integrum, in respect the said pretended assignation was granted by the said William Murray, when in insolvent circumstances, to the said David Murray (the defender), his son, who is a conjunct person with the said William Murray, and without any true, just, or necessary cause, and without a just price being paid for the same, with a view to defraud his just and lawful prior creditors, represented by the pursuer, and in respect of all which the same is null and void in terms of the first clause of the Act of Parliament passed in the year 1621, chap. 18, with expenses. The defender stated two preliminary pleas―(1) that the instance was defective; and (2) that the action, as laid, was incompetent in the Sheriff Court. conclusions; and in order that he may exercise this right, the enactments necessarily make it competent for him to insert conclusions for reduction as introductory the effect of the enactments is to enable them to pursue to the petitory conclusions. Next, as regards defenders, to an issue those exceptions to such deeds, which it was always competent and frequently necessary to state in the Sheriff Court, but which, when stated formerly, had only the effect of obliging the Sheriff to sist procedure till they should be determined in a reduction. In this view of the effect of the enactments they have an intelligible meaning, as regards the rights of both pursuers and defenders, without assuming that they confer on the Sheriff Courts power to reduce deeds to all intents and purposes-a power which belongs rather to a Court of general than to a Court of local jurisdiction. entirely beneficial, inasmuch as it enables the Sheriff to The power conferred by them is more limited, but still exercise his ordinary jurisdiction unhindered by the existence of fraudulent deeds, which might otherwise have impeded his functions. If the preceding view of the effect of the enactments be well founded, it is fatal to the present action. The present summons is an ordinary summons of reduction, containing no petitory conclusion, in terms of which it would be competent for the Sheriff to decern. The nearest approach to a petitory conclusion is that to have the pursuer reponed in integrum, and it is only petitary in the sense in which every possible conclusion is peti tory. Moreover, it will be seen that it is a conclusion which, if the opinion of the Sheriff-Substitute be right, it is incompetent for him to entertain. It is perhaps scarcely necessary to point out that the present decision does not conflict with, but is in entire The Sheriff-Substitute sustained the second of these accordance with, the case of Gall v. M'Dougall, decided pleas by the following Interlocutor: Stonehaven, 9th December, 1864.-The Sheriff-Substitute having heard parties' procurators on the closed record, Dismisses the action as incompetent: Finds the defender entitled to expenses, and decerns. (Signed) J. DOVE WILSON. NOTE. The tenth section of the Bankruptcy Act of 1856 enacts, that "all alienations of property by a party insolvent, or notour bankrupt, which are voidable by statute or at common law, may be set aside either by way of action or exception." The ninth section of the Act of 1857 declares, that the preceding enactment is to "be taken to apply to actions and exceptions in the ordinary Court of the Sheriff." In construing these enactments, in order to determine what changes they introduce in Sheriff Court procedure, it is to be observed that the second of them, which applies the first to the Sheriff Court, does not seek to introduce any new forms of actions or exceptions, but simply declares that a certain enactment shall apply to those actions and exceptions which it assumes to be already in use. There is, therefore, in these enactments, in so far as they apply to the Sheriff Courts, no authority to raise any action which it was not previously competent to raise, or to state any exception which it was not previously competent to state. It now becomes necessary to consider, and not difficult to determine, what the effect is of the application of the first enactment to actions and exceptions in the Sheriff Court. The enactment to be applied, is, that deeds of a certain class may be set aside by way of action or exception. As regards the rights of pursuers in the Sheriff Court, the Sheriff-Substitute conceives the effect of the combined enactments to be to render it competent for the pursuer of a Sheriff Court action "to set aside by way of action," that is, to reduce any deed of the class specified which he has an interest to challenge as standing between him and the granting of his petitory by Sheriff's Cleghorn and Robertson, and reported in the Scottish Law Magazine for 1863, p. 42; for in that case there were two proper petitory conclusions-one for interdict and the other for a removing, and the reduction was only entertained as introductory to them. Had there been such conclusions in the present action, the Sheriff-Substitute could not have doubted its competency, (Initd.) J. D. W. The pursuer appealed to the Sheriff, who pronounced the following Interlocutor: Edinburgh, 26th April, 1865.-Having considered the cause, Recalls the Interlocutor complained of, and res the first and second pleas in law for the defender: Holis the production satisfied by the production of the assignation called for, being No. 11 of process: Allows the parties a proof of their averments, and to the pursuers conjunct probation, and remits the cause to the SheriffSubstitute to proceed with the proof. (Signed) ALEX. BURNS SHAND. NOTE.-The Sheriff has come to the conclusion that the effect of sect. 10 of the Bankrupt Act of 1856, and sect. 9 of the Act of 1857, is to render such an action as the present competent in the Sheriff Court. The direct result of success on the part of the pursuer in the present action would be to give him right to delivery of the movable effects which were carried to the defender by the assignation challenged, and a right to enter to the farm should the landlord be willing under any arrangement to accept the pursuer as his tenant, or otherwise, a right to dispose of the lease for behoof of the bankrupt's creditors in favour of a new tenant under an arrangement with the landlord. The action might have contained conclusions to enable the pursuer judi cially to vindicate these rights, or conclusions of cont and reckoning against the defender; and if it had bee so framed, the Sheriff-Substitute is of opinion that i would have been competent. The Sheriff does not think that the absence of such conclusions—which, indeed, |