clusions of the summons: Therefore sustains the preliminary plea for the defender, dismisses this action, finds the pursuer liable in expenses, of which allows an account to be given in, and remits the same to the auditor to tax and report, and decerns.

NOTE.-In the narrative of the summons the pursuer sets forth that on 18th January last he was in the employment of William Brockatt, York Street, Glasgow, and that he was engaged about the paddle-wheels of the steamer "Petrel," of which steamer the defender is the owner, in making repairs on said wheels, when the defender or others caused the engine to be set in motion without giving him any notice or warning, in consequence of which he was carried round by the paddlewheels and severely injured, but the pursuer does not set forth that the defender, or any one authorised by the defender, em. ployed him to make the repairs, nor does he state that the defender or any of his servants knew that he was engaged about the paddle-wheels when the engine was set in motion; there is therefore no relevant statement to warrant the conclusions of the summons, and the action must be dismissed.

liable in expenses, of which allows an account to be given in, and remits the same to the auditor to tax and report, and decerns.

The pursuer appealed, and parties procurators having been heard, the Sheriff pronounced judgment as follows:

Having heard parties' procurators under the pursuer's ap peal upon the Interlocutor appealed against, and made avizan dum with the debate, and considered the proof adduced, and whole process, Finds that the present is an action for damages and solatium at the instance of the pursuer, a ship-carpenter, against the defender, as owner of the steamer "Petrel," on account of serious injuries sustained by him while engaged in the execution of his duty as a carpenter in making repairs or alterations upon the paddle wheels or paddle-floats of the said steamer "Petrel," while lying at the Broomielaw of Glasgow, on 18th January, 1864, and which injuries are alleged to have been caused through the culpable negligence or recklessness of those on board the vessel acting under the defender, and

Having heard parties' procurators under the appeal for the pursuer upon the Interlocutor appealed against and whole process, in respect the amendment of the summons craved by the pursuer is relevant and essential to the pursuer's case, and is explanatory of the other allegations in the summons and not contradictory to them, and is not calculated to introduce a new ground of action, and in respect the record was closed on a minute of defence, in terms of the Sheriff Court Act, with out parties being heard on the preliminary defence which objected to the omission: Recalls the Interlocutor appealed against, opens up the record, and remits to the Sheriff-Substitute to allow the pursuer to amend his summons to the effect of stating that the pursuer, at the time he received the injuries libelled on, was in the employment of parties who had been engaged by the defender to execute repairs on the vessel, and was engaged in his ordinary employment as one of the hands in making the repairs, and that at the time the paddlewheels were set in motion he was in the lawful execution of his duty as one of the tradesmen employed at the vessel, and thereafter to adjust and close the record of new, and do farther in the cause as to him may seem just, and reserves all questions of expenses.

tor:

Having heard parties' procurators on the concluded proof and whole process, in point of fact, Finds that in the month of January, 1864, the pursuer was a ship carpenter in the employment of William Brockatt, and on the morning of 18th January he was sent along with another ship carpenter to do some work on board the "Petrel" steamer, of which vessel the defender is owner: Finds that the pursuer went on board the "Petrel " soon after six o'clock in the morning of that day, and that he knew that she was intended to sail at ten o'clock; that part of the work which he had to do required him to go inside the paddle-box on the paddle-wheel, and that he did not begin that work till about nine o'clock: Finds that it is the practice when parties go inside the paddle-box of steamers that they give or send notice of this to the engineer, to prevent accidents: Finds that on said morning the pursuer went inside the paddle-box without giving or sending any notice to the engineer, who, about a quarter before ten o'clock, in ignorance that any one was on the paddle-wheel, set the engine in motion, and the wheel at which the pursuer was working revolved, and crushed the pursuer, who was severely injured and ultimately sent to the Infirmary: Finds that the injury to the pursuer was caused by his own carelessness and neglect, both in delaying his work within the paddle-box to so late an hour, and by going into the paddle-box without giving due notice to the engineer: In point of law, Finds that a party who suffers injuries caused chiefly by his own carelessness and neglect is not entitled to reparation: Therefore sustains the defences, assoilzies the defender: Finds the pursuer

any notice or warning to the pursuer, set in motion the engine or other machinery of the vessel, or caused the paddles to be moved while the pursuer was in the paddle-box in the execu tion of his duty in making some repairs and alterations thereon, whereby the paddle-wheel of the steamer whereon the pursuer was at the time employed was set in motion, and the pursuer was carried round inside the paddle-box of the steamer, and crushed between the floats of the paddles, and had his right collar-bone and shoulder-blade broken, and by which his system and constitution sustained a great shock, and his health has been severely impaired, and he has been permanently disabled, and rendered unfit to earn a livelihood: Finds that the defence on the merits is, that the pursuer did not suffer injuries to the extent alleged by him, and that, in so far as he did sustain injury, it was caused by his own negligence or recklessness, by going into the paddle-box at an improper time, and without giving notice to the engineer that he was going, which, it is alleged, he ought to have done: Finds that the pursuer was an entire stranger to the vessel, and had been sent by his master, William Brockatt, a party employed by the defender, or others for him, to make certain repairs or alterations on the vessel, and there is no evidence to show that the pursuer knew, or was made aware of any rule as to giving notice to the engineer, or that his master, when he sent him to make repairs on the vessel, told him anything concerning such a rule: Finds that the catastrophe happened on the morning of the 18th January, 1864, while the vessel was lying at the Broomielaw Wharf; that the purrequired, at nine o'clock A.M., and was still in it when the engine was set agoing and the paddles put in motion, and he was so much crushed and injured that he could not call out for assistance: Finds it proved that the steamer's time advertised for starting on her voyage was ten o'clock A.K., but that the engine was started and the vessel put in motion twenty minutes before ten o'clock, and that the pursuer got no notice of any kind before the paddles began to move: Finds that it was impossible to do the work which the pursuer had been ordered to do without going into the paddle-box, and the engineer of the vessel was so situated that he could see the pursuer go in, and the pursuer spoke to the engineer before going in: Finds that the pursuer was a sober and well-conducted man, and is proved to have been that morning quite sober, although he had taken one glass of whisky before beginning his work: Finds it proved that in the general case notice is given to the engineer of the vessel when a man goes into the paddle-box to make repairs or alterations, but there is no evidence to instruct that the pursuer, who was not one of the crew, and did not belong to the vessel, but was an entire stranger, was ever made aware, or was in point of fact aware of any such practice of giving notice to the engineer or any one else, or that he was warned by any one that the vessel was to be put in motion before ten o'clock, the hour advertised for her starting: Finds that there is no evidence of any undue delay on the pursuer's part in going into the paddle-box and executing the work required, seeing it is proved that he went at nine o'clock A.X. to do a job which did not require half an hour, and the vessel was advertised to sail at ten o'clock, which was known

to the pursuer: Finds it proved that the injuries sustained by the pursuer were very severe and serious, his collar bone having been broken and his body severely bruised and crushed, and that he was with difficulty extricated alive from the paddle-wheels of the vessel, and had to be sent to the Infirmary, where he remained from the 18th of January to the 30th of March; and that when sent out of the Infirmary he was incapable of doing his usual work, and has been permanently disabled from working, except at light employment, such as going messages, or the like, at 5s a week, he being a married man, thirty-six years of age, with two children, and earning 228 a week of wages when he met with the injuries: Finds that some of the evidence adduced for the defender, and, in particular, that of the witness Wighton, who assisted in extricating the pursuer from the vessel, and carrying him on the quay and thence to the Infirmary, is much shaken by the evident bias which he evinced to aid the defender, his employer, by putting questions to the pursuer both at the moment he was taken up from the paddle wheel, and was in great agony from the injuries sustained, and afterwards, on the same day, at the Infirmary, as to who was to blame for the catastrophe: Finds that, in the circumstances of the case as proved, no fault is to be ascribed to the pursuer in obeying the orders of his employer to go into the paddle-box to make the necessary repairs, seeing he was never informed or made aware of any rule as to giving to the engineer notice of his going into the paddle-box to make repairs; and seeing that, in the circumstances, he was entitled to rely on receiving notice from the engineer of his intention to start the engine, if the vessel moved before the advertised time of sailing, which was ten o'clock: Finds that the engineer was clearly in fault, and to blame, 1st, for not making the pursuer aware of the alleged rule of any person going inside the paddle-box giving notice when he went in; 24, for starting the engine and putting the paddle-wheels in motion at least twenty minutes before the advertised time for the vessel sailing, at ten o'clock; 3d, for not giving notice to the pursuer when he had seen him about the paddle-box, and he was himself at the other paddle-box, that he was to start the engine twenty minutes before the advertised time of the vessel's sailing, so as to warn the pursuer to get out of danger: Finds that the engineer of the vessel was in the defender's employment, and the pursuer, being a stranger to the vessel, the defender is liable for the damages arising from the fault or neglect of the engineer: Therefore alters the Interlocutor complained of, sustains the appeal, and finds damages due to the pursuer; modifies the same to £100 sterling, for which sum, with the legal interest thereon from the date of citation, decerns against the defender: Finds the defender also liable to the pursuer in expenses, of which allows an account to be given in, and remits to the auditor to tax the same and report, and decerns.

brother John, and the third he stated was held in the sole name and for behoof of that brother. He stated that the farms in dispute had been stocked by funds derived from the succession of their father. The trustee thereon obtained a warrant to cite the brother to be examined in the sequestration, who thereon presented a petition for interdict against the trustee interfering with the two last-mentioned farms. At the diet of examination, the brother appeared with an agent, and the following procedure thereon took place:

Interrogated-Did Alexander make any arrangement with you, your mother, brothers, and sisters, regarding your father's property, either at the time of your father's death, or afterwards?

Objected by his agent-The question opens up the transactions between the bankrupt and his father's family which originated the taking of the farm of Croftnascalag, which at present forms the subject of an action in the Sheriff Court at his instance, and the object of the examination is to lead a precognition on oath to obtain a defence to the said action.

The Sheriff-Substitute called on the agent examining now to state the object of this examination.

Whereon the agent stated that the bankrupt's affairs, from his connection with his brother now under examination, in the three farms is such that it is impossible for the trustee to obtain distinct and full information relative to the interest of the bankrupt, except by an examination of the parties themselves, and as it appears that the interest of the bankrupt and this witness became mingled on the death of their father, the trustee can only understand the state of matters by obtaining information as to the nature of their transactions from the date of their father's death until the present time.

The Sheriff makes avizandum with the objection, and adjourns the diet until the same be decided.

(Signed) HUGH BARCLAY.

Perth, 13th September, 1865.-Having made avizandum with the objection taken by John Douglas to his proposed examination in the sequestration, Finds that it sufficiently appears that the said person I can give information relative to the bankrupt estate," and therefore he is bound to answer all "lawful questions" which may lead to the obtaining of such information; therefore, repels the objection, and ordains him to appear and answer all such lawful questions under certifi cation. (Signed) HUGH BARCLAY.

NOTE. The bankrupt law is highly privileged. It does individuals contending for some single subject, but it is not assume the aspect of an ordinary litigation as between intended to supersede all separate actions. The general body of creditors represented by the trustee are entitled to collect into a common fund the whole estate, and, recognising or setting aside individual preferences, to divide the funds amongst the whole just and lawful creditors. Most coercive powers for obtaining information and recovery of assets are conferred on the trustee, which do not exist at common law in favour of individual creditors.

was liable to examination, but not on oath. Under the 23 Geo. III., chap. 18, the bankrupt's family and others might be examined, but not on oath. By the 32 Geo. III., chap. 74, the trustee might call for the examination of these parties even on oath, if he found it necessary for the purpose of obtain ing a full discovery of the bankrupt's estate and effects. The 2d and 3d Victoria, chap. 41, is in this respect identical with the existing statute 1856, and requires all such examinations to be on oath.

In the case, 3d December, 1844, Pollock, the brother of the bankrupt, and who was a large claimant on the estate, was held bound to produce a pass-book in his possession, even though such production might cut down his claim of ranking on the estate. In the case, 26th May, 1855, Burnett, a person apparently no relative of the bankrupt, was called to give information on oath in regard to the estate. He objected, because the circumstances on which he was to be examined were not first set forth; but the Court held he was bound to submit to examination without any such previous information. In the case, 7th December, 1858, Sawers, the mother-in-law of the bankrupt, was held bound to submit to examination, in order to trace the funds of the bankrupt, though the witness had already instituted legal proceedings, and alleged that the examination was intended as a precognition to obtain information to found a defence against her claim. Lord Cowan delivered the judgment of the Court, and remarked, "We do not think that interrogatories fairly put, which may lead to the divulging information leading to the discovery of effects or money in which the creditors are interested, or to the investigating of covert arrangements or transactions should, except on very strong grounds, be disallowed. To justify a line of inquiry having this for its object, it is not necessary for the trustee to show previous covert or complication of interest between the conjunct and confident party to be examined, and the bankrupt. The very purpose of the investigation is to search such matters out where they exist; and the utility of this procedure, when confined to its proper object, and kept within legitimate bounds, cannot be over estimated." In the case, 4th June, 1858, Binney, the law agent of the bankrupt, was ordered to submit to examination, though the object was to inquire into a transaction whereby he had become the owner of the furniture of the bankrupt. Lord Deas observed, "If the questions be properly directed to obtaining information as to the bankrupt's affairs, they do not necessarily become unlawful because they may incidentally lead, at the same time, to revelations unfavourable to the pecuniary interests of the person examined.”

The only exception to the rule above recognised is where the question leads to criminate the witness, or where the examination is not to increase the assets, but to cut down some claim the witness has against the estate. In the former case, the witness is protected under the generally received axiom of common law. In the latter case, the trustee can call on the claimant to support and prove his claim; and if not satisfied with the evidence, he may reject it. But he has no other means of ascertaining the extent of the estate, and of collecting the assets, than by calling on all who can give information to give it. It matters not that in so doing there may be disclosed such facts which may tend to the disadvantage of the witness. In general, such will be the case, but this is not to stay the trustee from obtaining all necessary information. Indeed, such examination may, in the result, be for the advantage of the witness himself, for the information given may establish his right to certain properties so undoubted that the trustee may yield the matter, and refrain from plunging him and the estate into costly litigation. The distinction is well illustrated by the case 21st January, 1855, Paul.

There the trustee had instituted an action to reduce a bond granted by the father of the bankrupt, and he cited the law agent of the party, in right of the bond, to be examined. The Court there refused to permit such examination. In the present case, it is disclosed in the examination of the bankrupt, that there were three farms managed in common-one, he admits, was for his sole behoof, another, he says, was held jointly by him and his brother, the intended witness, and a third was solely for behoof of the brother. Under these circumstances, it is the trustee's duty, before proceeding to attach the effects on the two last-mentioned farms, to ascertain how the facts really stand. He may, on the information to be obtained, yield one or other of the farms, and so save the estate and the witness a deal of expensive litigation.

It will not avoid the ordeal of examination that the witness first had recourse to law by obtaining an interdict against the trustee interfering with two of the farms, even before the

If he were obliged to submit to the examination, then his having first had recourse to law will not change the obligation. It might have been different had the trustee instituted an action of reduction of the leases, or brought a count and reckoning, and then sought an investigation, by examination on oath, which could be more regularly obtained in his actions. This would have brought his plea under the rule of exemption recognised in the case of Paul, supra. (Initd.) H. B.

16TH SEPTEMBER, 1865.

SHERIFF COURT LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON, BART., AND ARCH. SMITH.)

WILLIAM GUNN, Sen., v. WILLIAM GUNN, Jun. Process-Cessio bonorum-Caution for expenses.-In an action raised by a father who had obtained decree of cessio bonorum, and on whose estate a trustee for behoof of creditors had been duly appointed, against his son for aliment furnished to defender's child, no agreement for payment having been entered into-Held that, although the trustee had refused to be a party to the action, the pursuer was not obliged to find caution, in respect that no disposition, omnium bonorum, had been executed nor decree of cessio extracted.

Aliment-Liability of father to repay grandfather of child for same.-Held in the above action that the defender was liable to repay the pursuer for aliment of his, the defender's, child.

THE pursuer, William Gunn, Sen., instituted this action against the defender, William Gunn, Jun., "for and on account of the clothing, maintenance, and upbringing by the pursuer of the defender's son for and during the period from 12th September, 1857, till 16th February, 1863." The defender stated, as a preliminary plea, that the pursuer had no title to sue, in respect that he applied, and by decree dated on or about the 20th October, 1862, obtained the benefit of cessio bonorum, and that a trustee was appointed to act for behoof of the creditors, and that the pursuer was thus divested of his estates as at that date; and on the merits, he pleaded that the child had been taken gratuitously by the pursuer, and that he, the pursuer, had never asked or claimed payment from the defender of any sum whatever for the upbringing of the child; and he farther pleaded that he had paid certain sums on account of the pursuer, which sums more than compensated him for any outlay to which he had been put for aliment for the child from the date of the decree of cessio divesting the pursuer of his estates till 16th February, 1863, libelled.

Regarding the preliminary plea the process of cessio referred to was produced, and the trustee was cited to appear in the action for his interest, but failed to do so. The Sheriff-Substitute, sustaining the plea, ordained the pursuer to find caution in the following Interlocutor and Note:

Glasgow, 25th March, 1864.--Having heard parties' procurators on the preliminary plea for the defender, Finds that by decree of this Court dated 20th October, 1862, the pursuer obtained the benefit of cessio bonorum, and Thomas Gifford, tailor and clothier, Oxford Street,

Glasgow, was appointed trustee for behoof of the pursuer's creditors, and the pursuer was at that date divested of his estates: Finds that the said Thomas Gifford was cited to appear in this action for his interest, but failed to do so: Finds in these circumstances that the pursuer is not entitled to proceed with this action unless he finds caution for expenses; sustains the preliminary plea, and ordains him to find such caution within six days.

(Signed) ARCHD. SMITH.

NOTE.-The general rule is, that when a pursuer is a bankrupt, or is suing a process of cessio bonorum, or is divested of his estates under a decree of cessio bonorum, he cannot insist in an action at his own instance unless he finds caution for expenses past and future, or unless the trustee sist himself as a party. The object of the rule is to afford protection to the party who is convened in a law suit by a bankrupt divested of his estates, and as it is the duty of the trustee to make available all claims competent to a bankrupt, it is to be presumed, when he does not appear, that the action is groundless. This presumption is strengthened in this case by the fact that although the greater part of the alleged debt sued for in this action was incurred before the pursuer applied for cessio, it is not contained in the state of his affairs produced in the process of cessio. (Initd.) A. S. The above Interlocutor was appealed to Sir Archibald Alison, who recalled the order to find caution. The following is a copy of his lordship's Interlocutor:

Glasgow, 27th May, 1864.-Having heard parties' procurators under the pursuer's appeal upon the Interlocutor appealed against, and whole process, Finds that this is an action for payment of £56 13s 6d by a father against his son for aliment said to have been furnished by the pursuer to a grandson, the defender's child, between 12th September, 1857, and 16th February, 1863: Finds that the pursuer obtained decree of cessio bonorum in this Court on 20th September, 1862, and Thomas Gifford was appointed trustee for the creditors under the decree on 24th October, 1862: Finds that this process was, by order of Court, intimated to the said Trustee, but he has not entered appearance in it: Finds that the question under the present appeal is an incidental one, and it is whether the pursuer is bound to find caution for expenses in these circumstances before insisting further in the action. In respect the trustee under the cessio holds off and has not sisted himself as a party in the action, and no disposition, omnium bonorum, was ever executed by the pursuer, and decree of cessio was never extracted; and in respect the title of a trustee appointed under a cessio does not extend to acquirenda, but only embraces acquisita, and the claim under the present action relates to acquirenda, to which no one has or can have a title, except the pursuer alters the Interlocutor appealed against: and Finds that the pursuer is not bound to find caution for expenses: Therefore recalls the order upon him to do so, and remits to the Sheriff-Substitute to proceed in the action as accords. (Signed)

A. ALISON. Both parties were allowed proof of their averments, and a conjunct probation. The pursuer objected to the defender having a proof of a portion of the counter claim, in respect that there was no date of the alleged payments, but both the Sheriff-Substitute and the SheriffDepute allowed proofs as above. The same having been led and parties heard, the Sheriff-Substitute dismissed the action with expenses. The following are the Inter

locutor and Note:

Glasgow, 26th April, 1865.-Having heard parties' procurators on the concluded proof, and whole process In point of fact, Finds that the pursuer, who is the

defender's father, kept and maintained in his own house the defender's son, William, a child of tender years, from 12th September, 1857, to 16th February, 1863: Finds that the pursuer voluntarily took the defender's son into his house, and maintained and brought him up there, and he does not aver that the defender engaged to pay him aliment therefor: Finds that the defender was in this country when his son went to live with the pursuer; that he went to Australia in the end of 1858, but returned to this country in December, 1860: Finds, that during the whole period the defender's son resided with him, the pursuer never either asked aliment from the defender, or requested him to remove the child: In point of law, Finds, in those circumstances, that the pursuer must be presumed to have alimented and brought up the defender's child animo donandi: Therefore sustains the defences, assoilzies the defender, finds the pursuer liable in expenses, of which allows an account to be given in, and remits the same to the auditor to tax and report, and decerns.

(Signed) ARCHD. SMITH.

NOTE. The defender's child went to live with his grandfather, the pursuer, in these circumstances:-The defender was at sea when his first wife died, and the pursuer took the child to his own house, where the May, 1857. From that time till 12th September, 1857, defender found him on his return home to Glasgow, in both the defender and his child lived with the pursuer, the defender paying his father a board. On 12th September, 1857, the defender married again and left his father's house, but his child, the subject of this action, remained with his grandfather, who made no After his stipulation with his father about his board. second marriage the defender remained about sixteen weeks in Glasgow, and the pursuer kept his child all that time, and never requested his father to remove or pay board for him. The defender again went abroad for two years, and on his return he finds his child still with the grandfather, where he remains for two years more without any claim for aliment being made. Erskine, Book iii., title iii., sec. 92, where, treating of cases in which aliment is presumed a donation, says "The maintaining in bed and board of one who is come of full age is in law accounted a donation, because it is presumed that he who affords the alimony, if he does not stipulate for himself that he shall have an allowance in name of board, makes him whom he maintains welcome to his house either for the sake of his company, or in consideration of the service he expects from him." And again: "If the minor's father be alive, he who entertains the minor is presumed to do it animo donandi, for if he intended to exact board he ought to have made a previous bargain with the father." If this is the law with regard to strangers, it is much more so where the parties stand in the relation to one another of grand(Initd.) father and grandson.

A. S.

The pursuer having appealed, the Sheriff-Depute, after hearing parties, pronounced the following Interlocutor:

Glasgow, 16th September, 1865.- Having heard parties' procurators under the pursuer's appeal, upon the Interlocutor appealed against, proof adduced, and whole process, Finds that this is an action for payment of £56 13s 6d, at the instance of a grandfather against the defender, his son, for aliment furnished to a grandson, the defender's child, from four to six years of age, during the absence of its father in Australia: Finds that the onus at common law, of supporting a child, lies on its father, and not on the grandfather: and that if aliment has ex pietate been furnished by the grandfather, it vests in him a right of relief against the father, the proper debtor: Finds that donatio non presumitur, and

that there are no circumstances here which go to override this presumption, and throw the liability for the aliment off the shoulders of the defender on those of the pursuer, the grandfather of the child: Finds that there is no question of prescription here, and the parties are both in the rank of working men: Finds it proved that the defender paid board to the purst er, at the rate of 12s a week, during the time that he lived with the pursuer, but there is no evidence of his having paid the pursuer after he went to Australia, leaving his son a burden on the pursuer, who was vergens ad inopiam, was forlorn, incarcerated, and was five months in prison, and at last sued out a process of cessio in this Court: Finds that during the greater part of the time for which the board is claimed the defender was in Australia: Finds it proved that the pursuer's wife, when ill, complained loudly that she could get nothing from the defender for the aliment of his own son: Finds, in point of law, that if a party aliment a person of full age without stipulating for payment, he is presumed to do so animo donandi; but that presumption has no application in the present case, where the party alimented was a child of from four to six years of age, and the party liable in the aliment was during the greater part of the time absent in Australia, and the board and aliment was furnished by the grandfather of the child ex debito naturali et ex pietate: therefore alters the Interlocutor complained of, repels the defences, and finds the defender liable in aliment for his child; but, in respect the rate of 4s a week claimed seems in the circumstances to be rather high, especially as it is for so long a period as 283 weeks, and brings out a claim against the defender of £56 cdds, modifies the aliment demanded to £30 sterling in all, for which sum, with interest from the date of citation as libelled, decerns against the defender: Finds the pursuer entitled to expenses, but subject to some modification in respect of the pluris petitio, of which appoints an account to be given in, and remits to the auditor to tax the same, and to report, and decerns. (Signed) A. ALISON. All. WM. MURDOCH.

Alt. J. M. LANG.

22D SEPTEMBER, 1865.

SHERIFF COURT, LANARKSHIRE-GLASGOW.

(SHERIFF H. GLASSFORD BELL.)

DANIEL GORDON v. APPEAL COMMITTEE OF THE
BOARD OF POLICE, GLASGOW.

Statute 25 & 26 Vict., cap. 204, S. 44 (Glasgow Police Act)-Interpretation.—A clause in an Act of Parliament levying an assessment upon owners of horses, held not to apply to owners of mules.

THE following Interlocutor and Note were pronounced by Henry Glassford Bell, Esq., Sheriff-Substitute, on an appeal by Mr Daniel Gordon, Bluevale Street, Glasgow, against the decision of the appeal committee of the Board of Police, Glasgow, finding him liable in an assessment of two guineas, in respect of two mules kept by him. Mr Gordon admitted that he kept the mules in question, but pleaded that there was no clause in the Act of Parliament assessing mules. The committee, however, having held that mules were included under the word horses, the present appeal became necessary:—

Glasgow, Sept. 22, 1865.-Having resumed consideration of this appeal, which has lain over for some time at the request of parties, and having again heard their procurators; for the reasons stated in the annexed Note, sustains the ap peal, and disallows and discharges the assessment complained

of: Finds the respondent liable in expenses, allows an account thereof to be given in, and remits the same to the auditor to tax and report, and decerns. (Signed) HENRY GLASSFORD BELL.

The answer is, that the

NOTE. All preliminary objections to the competency of the appeal, if any such exist, were waived by the respondent, and it was discussed exclusively on the merits. By section Board to impose annually an assessment of one guinea in 44 of the Glasgow Police Act, authority is given to the respect of any "horse kept or used within the city, except horses used exclusively for agricultural purposes, or for towing on any canal." And by section 52 this assessment is made payable by "every occupier of a land or heritage, and every person residing within the city," who has kept or used horses within the city at any time during the year to which the assessment applies. The appellant was assessed, as the notice served upon him bears, in the sum of two guineas, in respect of two horses kept or used by him within the city for The objection to the assessment is founded on the averment the year from Whitsunday, 1864, to Whitsunday, 1865. that the appellant kept or used no horses within the city appellant admittedly kept and used two mules, and that an during any part of said year. assessment on horses comprehends and includes an assessment on mules. In support of this view the works of Buffon, Cuvier, and other eminent naturalists were quoted to show that both the horse and mule are of the genus equus, of which genus there are said to be six varieties, including the ass, the zebra, and the wild mule. There might have been validity in this answer if the Act had authorised an assessment on the genus cquus, and not simply on the horse. Although an animal be of the same genus as another animal, it is not therefore the same animal. If the argument is good horse, but a zebra in the ordinary use of language cannot be for anything, a zebra in a caravan would be as accessible as a said to be a horse, neither is a horse an ass or a mule. The definition of the word "mule," both in Webster's and the Imperial Dictionary, is "a quadruped of a mongrel breed, usually generated between an ass and a mare, sometimes between a horse and a she-ass. These animals are mostly sterile." This definition could never apply to the word "horse." There is not a syllable in the interpretation clause of the Act to the effect that the word "horse' is to include mule, ass, or any other animal, and the exception in the enacting section in favour of horses "used exclusively for agricultural purposes, or for towing on any canal," seems to imply that the legislature meant the tax to apply exclusively to horses, as neither mules, asses, nor zebras are almost ever used for the excepted purposes. "The words of a statute," says Dwarris, "are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and popular use." And again, "where certain specific things are taxed or subjected to any charge, it seems probable that it was intended to exclude anything else even of a similar nature;" and finally, "it is a well settled rule of law that every charge upon the subject must be imposed by clear and unambiguous language. Acts of Parliament which impose a duty upon the public will be critically construed with reference to the psrticular language in which they are expressed. Where there is any ambiguity found the construction must be in favour of the public, because it is a general rule that where the public are to be charged with a burden, the intention of the legisl shown." Such distinctness has been carefully attended to in ture to impose that burden must be explicitly and distinctly the Assessed Taxes Act, the General Turnpike Act, and other statutes, where rates payable for a horse, a mule, or an ass are all separately specified, and commonly vary, because the animals are different. If the Glasgow Police Board wishes for a statutory power to assess the keepers of mules as well as of horses, it must have such power conferred in express terms (Initd.) H. G. B. by Parliament. Alt. G. PATERSON.

Act. CHRISTIE.