14TH JUNE, 1864.

SHERIFF COURT, PERTHSHIRE-PERTH.

(SHERIFFS GORDON AND BARCLAY.)

THE SCOTTISH INSURANCE Co. v. JAMES MILLER & JAMES MACLEISH.

Jurisdiction-Sheriff Court-Proof-Improbation-Act of Sederunt, 10th July, 1839, sect. 91.-In an action founding on a bond, the defenders alleged that the deed was forged-Held that, under the Act of Sederunt, a proof of this exception was competent although the deed was, ex facie, regularly executed, and after a proof defenders assoilzied.

Tuis action was for payment of £100 sterling contained in and due by a bond and assignation dated 22d October, 1859, alleged to have been granted by the defenders along with John Doctor, then banker in Methven, and James Brough, then cattle dealer, Carsehill, near Methven, in favour of the pursuers, with interest. The testing clause of the bond was in these terms:-"In witness whereof these presents written on this and the two preceding pages of stamped paper by Hunter Douglas Prain, clerk to the said Scottish Union Insurance Company, are subscribed by us, the said John Doctor, James Miller, John M'Leish, and James Brough, all at Methven, upon the twenty-second day of October, eighteen hundred and fifty-nine years, before these witnesses, Richard M'Arthur, station agent at Methven of the Perth, Almond Valley, and Methven Railway, and John Simmie, farmer, Methven."

The pursuers pled (1) That as parties to the bond and assignation, the defenders are liable for the debt sued for; (2) The bond founded on is, ex facie, valid, and it is incompetent to set it aside in the Sheriff Court; (3) The defenders having subscribed the bond founded on, and allowed it to be put into the hands of the pursuers as a genuine document, they are barred from stating the plea that the statutory solemnities have not been observed.

The defenders pled-(1) The bond libelled on is not subscribed by the defenders, and cannot found any action against them, and the Sheriff has jurisdiction to decide this case on the averments made by the defenders by way of exception; (2) The bond is improbative, in respect the instrumentary witnesses did neither see the defenders subscribe the bond, nor hear them acknowledge their signatures thereto; (3) The pursuers having ascertained by the investigation and report of their own agents that the said bond was improbative, the present action at their instance is nimuous and oppressive. Parties having been heard, the Sheriff-Substitute pronounced the following Interlocutor:

Perth, 19th August, 1863.-Having heard parties' procurators, and made avizandum with the process, repels the pursuer's third plea in law, allows the defenders a proof in improbation of the bond No. 6 of process, and that the same is not their deed, not being subscribed by them, and allows the pursuer a conjunct proof, grants diligences against witnesses to enforce their attendance at such diets as may be forthwith fixed.

(Signed) HUGH BARCLAY.

Edinburgh, 26th February, 1864.--The Sheriff having heard parties' procurators on the pursuers' appeal, and made avizandum with and considered the process, dismisses the appeal and affirms the Interlocutor appealed from, it being understood that the only matter allowed to be proved in defence in this process is, that the alleged signatures of the defenders to the bond are forged.

(Signed) EDWARD S. GORDON. NOTE.-The Sheriff thinks that in an action in the

Sheriff Court, founded upon a bond or other document alleged to have been signed by a defender, it is competent for the defender to plead that he never signed the document, and that without reduction. (See Act of Sederunt, July 10, 1839, s. 91.) But he does not think that it is competent for the defenders to object to the deed upon the ground that even although they did sign it, they did not do so in the presence of witnesses. In the case supposed, having signed it, the bond may be regarded as to some extent the deed of the granters, liable to be set aside indeed, but only in a process of reduction. It appears, however, that in such a case where money has been afterwards advanced on the faith of the granters' subscription, the improbative character of the deed who has advanced money on the faith of it. (Church of will not prevent its being founded upon by the party England Life Assurance Company, 12th February, 1857, and 17th July, 1857, 19 D, 414 and 1079.)

(Initd.)

E. S. G.

A proof was accordingly led, and both Doctor and the alleged witnesses deponed that they, the instrumentary witnesses, did not see the defenders subscribe the bond, or hear them acknowledge their signatures. The case was thereafter fully debated before Sheriff Barclay, who pronounced the following Interlocutor :—

Perth, 14th February, 1865.-Having heard parties' procurators, and made avizandum with the proces, Finds that the defenders have failed to improbate their signathe same as genuine, repels the defences, decerns against tures to the bond No. 6 of process: Therefore sustains them in terms of the summons: Finds them liable in expenses, and remits the account thereof to the auditor to tax and report; farther forfeits the improbation money, and allows the pursuer to uplift the same.

such.

(Signed)

HUGH BARCLAY. NOTE.-The presumption for genuineness of writing, and the proof to the contrary, rests with those alleging They were under obligations to him, and had subscribed The defenders were not strangers to Doctor. for him, recommending and accommodating him in other respects, and their own testimony is not very strong in disclaiming their signatures. It looks that their objection was founded on the objection to the testing of the deed, rather than the genuineness of the signatures. is on the side of the genuineness, and, above all, the opinion of the engravers (not now in very high repute) real evidence arising from comparison with the genuine signatures leave no doubt on the mind of the Substitute but that the signatures to the bond are truly those of the defenders. (Initd.) H. B.

The

The defenders appealed, and after hearing parties, Sheriff Gordon pronounced the following Interlocutor, reversing :

Edinburgh, 14th June, 1865.-The Sheriff having heard parties' procurators on the defenders' appeal, and made avizandum with and considered the proof and whole process, sustains the appeal, recalls the Interlo

cutor appealed from, and Finds that the pursuers have admitted that there were no attesting witnesses to the signatures alleged by the pursuers to be the signatures of the defenders: Finds that the pursuers have failed to prove that said signatures are the genuine signatures of the defenders; and therefore assoilzies the defenders from the conclusions of the action, and decerns: Finds them entitled to expenses, appoints an account thereof to be lodged in process and laid before the auditor for taxation. (Signed) EDWARD S. GORDON.

NOTE.-The pursuers' claim, as concluded for, is founded exclusively upon the bond No. 6 of process, which is, ex facie, a regularly-tested or probative deed. The defenders, therefore (as the case was presented on the closed record), required to undertake the onus of proving that the signatures bearing to be the signatures of the two defenders, Miller & M'Leish, are not genuine.

But since the proof was allowed, the pursuers have admitted that the bond was not signed in presence of the instrumentary witnesses," which admission was clearly intended to represent that the parties who sign the bond as witnesses are not witnesses to the alleged signature of the two defenders. If that admission had been made on record, the defenders would have been entitled to absolvitor; because there is no ground of liability set forth in the record, or proved, other than the signatures represented to be the subscriptions of the defenders to the bond. The above admission having been made by the pursuers, the Sheriff does not think that they can succeed in getting decreet in this process. But farther, assuming that the case required to be decided upon the result of the proof as to the fact whether the signatures alleged to be the signatures of the defenders (Miller & M Leish) are their genuine signatures or not, the Sheriff is of opinion that the defenders are entitled to absolvitor. It being admitted that the witnesses who subscribe the bond did not see the defenders subscribe it, or hear them acknowledge their signatures to it, the pursuers cannot now claim the presumption of the genuineness of the subscriptions which prevails in the case of a regularly-tested or probative deed. The onus of proving the genuineness of the signatures, therefore, rests on the pursuer's seeking to put in evidence the document to which they say the defenders' signatures are attached. (Anderson & Gall, 16th April, 1858, iii. M'Queen, 180.) Apart from the evidence afforded by a comparison of the signatures in question with the admitted genuine signatures of the defenders, the evidence of the pursuers consist of Mr Doctor alone in regard to Miller's signature, and of Mr Doctor and his wife in regard to M Leish's signature. On the other hand, each of the defenders distinctly denies that he ever signed the bond, and that denial of each defender to some extent affords evidence confirmatory of the statement of the other defender, and contradictory of the evidence for the pursuer. Farther, the evidence of Doctor cannot fail to be open to unfavourable observation, when it is kept in view that he must have given information to the pursuers or their agent, to enable them to fill up the testing clause, in which it is represented contrary to the fact that the subscribing witnesses were witnesses to the signatures of Miller and M'Leish. The evidence of Mr Doctor is in other respects not very consistent in regard to the time when he himself and the witnesses signed the bond. Indeed, the Sheriff would hold that if the onus of proving that the signatures alleged to be those of the defenders are not genuine rested on the defenders, they have proved sufficient to establish their case. The evidence afforded by a comparison of the alleged signatures of the defenders with their signatures admittedly genuine, is not such, in the Sheriff's opinion, as to afford much aid to either party. The signatures of the defenders are those of men who do not write in a very

JOHN NEILSON v. JOHN PEARSON KIDSTON.

Master and Workman-Truck Act, sect. 23.-In an action at the instance of a workman against his master for recovery of certain wages which the master had retained on account of offlakes-Held that the master was not entitled to make these deductions, there being no written agreement signed by the workman to that effect. THIS action was at the instance of John Neilson, collier,

Newton, against Mr John Pearson Kidston, coalmaster, Newton Colliery, Cambuslang, for recovery of the sum of £2 28 1d, being the "amount illegally deducted and retained by the defender from pursuer's earnings as a miner in his employment at Newton Colliery foresaid, from 27th March to and including 3d July, 1865, in name of house rent, 198 6d; pick-sharpening, 3s 6d; school fees, 2s 4d; doctor's charges, 1s 9d; fines, etc., 158; amount in cumulo, £2 2s 1d stg." It was pled for the pursuer that in terms of the 23d section of the Truck Act 1 and 2 Will. IV., cap. 37, deductions of the above nature could only be made from colliers' wages in cases where there was an agreement or contract to that effect signed by the workmen, and there being no written agreement here, the deductions in question were illegal. The defender pled that it being the usage of the trade to make these deductions, which were clearly for the benefit and advantage of the workmen; and the printed rules at the works stating that these "offtakes" were to be made, and the pursuer having wrought under these rules, and regularly taken payment of his wages fortnightly, and thereby homologated and approved of the practice, he (the pursuer) was not now entitled to claim repayment of the sums sued for.

The Sheriff-Substitute, after having taken the case to avizandum, pronounced judgment in favour of the pursuer. He stated that he had consulted with his brethren in Glasgow regarding the practice there in similar cases, and he had now no hesitation in finding that, no matter how hard such a case might appear, the terms of the Truck Act were so stringent that it was impossible to give effect to the argument of the defender. If coalmasters wished to avail themselves of the exemption contained in the Act, and to make these and similar deductions, they must have a written agreement signed by their workmen.

A similar case, at the instance of another workman

St Nicholas, and that he then agreed to relieve her. The claim was admittedly made and granted that day, and on the following day it was complied with. These facts are very different from those on which a similar plea was raised in Jack v. Simpson already referred to, and where it was held that notice of a contingent claim, which might or might not become an available claim, and on which no proceedings were taken for years, was bad. If it were to be held that actual payment of money was necessary before sending notice, it would always happen that the first parish would have to pay something which it could not recover, because (by the Act) it can only recover the expenses incurred from and after the date of the

notice.

Having thus disposed of the preliminary difficulties, the Sheriff-Substitute desires to have the record cleared of its alternative averments, before proceeding to dispose of the merits. The pursuer avers, safely enough, that the alleged pauper is either legitimate or illegitimate; and he argues that in either case he is entitled to be relieved. It is impossible, however, for a satisfactory decision to be given while so important a matter of fact as the legitimacy of the alleged pauper remains in doubt. If the child is legitimate the questions of law may be easy enough, and if illegitimate they may be sufficiently difficult; but certainly one set of these questions is plainly irrelevant. The Sheriff-Substitute has placed on the pursuer the duty of proving the averment that the child is legitimate, because on the other alternative of illegitimacy there is no contradictor. If the pursuer thinks he cannot make out the legitimacy of the child, or that his case is strong enough without that alternative, he can put in a minute renouncing probation on that point, and the case will then be disposed of on the footing that the child is illegitimate. (Initd.) J. D. W.

After pronouncing this Interlocutor, and after the defender had intimated and abandoned an appeal, the pursuer lodged a minute in which he "renounced probation on the question of the legitimacy of the pauper, and consented that the case might be disposed of on the footing that the pauper was illegitimate."

The parties dispensed with any further hearing on the case, and the Sheriff-Substitute having again made avizandum, pronounced the following Interlocutor:

Stonehaven, 15th March, 1865.-The Sheriff-Substitute having resumed consideration of the closed record, together with the minute for the pursuer, No. 18 of process, decerns against the defender in terms of the first conclusion of the summons, dismisses the second conclusion as incompetent, and Finds the pursuer entitled to expenses, subject to modification, of which allows an account to be given in, and when lodged remits the same to the auditor to tax and report. (Signed)

J. DOVE WILSON.

NOTE. This case embraces two conclusions: one for repay. ment of certain sums disbursed in relief to a pauper, and another for relief from all such future disbursements.

The pauper who was relieved by the pursuer was an illegitimate child, and at the time of becoming liable was above the age of puberty and below that of majority. The child-a girl -resided with her mother, who has not been in receipt of parochial relief. The mother's settlement is not stated by either party. The girl was born in the defender's parish. If such a person, on becoming chargeable, takes her own birth settlement in preference to that of her mother, the defender is liable in the present case. If she takes her mother's settlement, then it would be the pursuer's duty to seek out that settlement, and the defender would not be liable. This is a simple statement of the questions of law arising between the parties under the first conclusion of the summons.

It appears to the Sheriff-Substitute that this case is ruled by the decision of the Court in the case of Craig v. Greig, 18th July, 1863, 1 Macph. 1172. That case decides, in the first place, in the words of Lord Ardmillan, that "in determining the question where a pauper's settlement is, we must consider the state of matters existing at the date when he becomes a pauper." Applying that rule to this case, it will be found that it brings the pauper exactly within the special circumstances which were considered in the case of Craig v. Greig, to throw

the liability on the pauper's birth settlement. When this pauper became chargeable, she was, like the pauper in that case, sui juris, under no legal incapacity, and emancipated from all paternal authority. The only difference between the cases is not in the pauper's actual circumstances, but in the mode in which she fell into them. In Craig's case the pauper was free from paternal authority because his father was dead; in the present case the pauper is free because, in the eye of the law, she never had a father. This difference, on the principle already quoted from Lord Ardmillan, the Court is bound to disregard; and it may be observed that if it could be regarded, it would not be in favour of the present case, for it would scarcely do to hold that an unmarried woman and her child could not be separated in circumstances when the law would separate a legitimate child from its widowed mother. The rule laid down by the majority in Craig's case may have its inconveniences-such as those it may have in the present case, where it may have the effect of separating a child just above the age of puberty, and apparently not very robust, from its parent-but the rule was laid down in full view of such possible inconveniences, and upon the principle that it was desir able that some general rule should be fixed in order to prevent litigation.

The second conclusion of the summons, for relief from any future advances, is one for which the Sheriff-Substitute has not been able to see any authority for bringing in the Sheriff Court. If it means nothing more than that the decision on the first conclusion is to be res judicata between the parties in future, then it was unnecessary; and if it means more (as it certainly does) then it is of a declaratory nature, and incompetent without some special authority.

The pursuer having been successful on the first conclusion is entitled to expenses, but as he has been unsuccessful on the second, and as the defender was willing to have the first deter mined summarily, the expenses must be subjected to modifica (Initd.) J. D. W.

tion.

The defender appealed, and the Sheriff pronounced this Interlocutor:

Edinburgh, 7th August, 1865.-The Sheriff having heard parties' procurators on the defender's appeal, and considered the process, adheres to the Interlocutor complained of, dismisses the appeal, finds the pursuer entitled to additional expenses, and remits the account thereof to the auditor to tax and to report, and decerns.

(Signed) ALEX. BURNS SHAND. NOTE. The pursuer has acquiesced in the finding of the Sheriff Substitute dismissing the summons, so far as regards its second conclusion. The only question therefore before the Sheriff is, whether the defender is liable for the amount of advances claimed under the first conclusion, and its decision depends on the question, whether, on 12th April, 1864, when the pauper became an object of parochial relief, Fetteresso was the parish of her settlement. The Sheriff is of opinion that that parish was liable. The pauper was then above puberty, was of illegitimate birth, and was supporting herself at least in part by her own labour; and the case seems to the Sheriff to fall within the principle of the case of Craig v. Greig & Macdonald mentioned by the Sheriff-Substitute. The absence of all patria potestas in the case of an illegitimate child, cannot make the tie between mother and child stronger after puberty is attained than in the case of legitimate children. If, after attaining puberty, an illegitimate child should become an object of parochial relief without acquiring a settlement by residence, the Sheriff is of opinion the claim lies against the child's birth settlement, and not against the settlement of the mother. In the present case, in addition to the attainment of puberty, there seems to be enough admitted to show that the pauper was supporting herself-a circumstance which would bring the case even more directly and obviously within the principle settled in Craig's case. (Initd.) A. B. S.

11TH OCTOBER, 1865.

SHERIFF COURT, PERTHSHIRE-PERTH. (SHERIFF BARCLAY, LL.D.)

A. B. v. IIIS CREDITORS.

Insolvency-Bankruptcy-Cessio-Circumstances under which an applicalion for cessio was refused.

THIS was an application for cessio. The same was refused, and the reasons for refusal are sufficiently set forth in the Notes of the Sheriff-Substitute:

Perth, 11th October, 1865.-Having advised the process, sustains the objections to the cessio, and finds the petitioner not entitled to the benefit thereof. Therefore dismisses the petition, finds the petitioner liable in costs, remits the account thereof to the auditor to tax and decerns, reserving to the objectors to call on the petitioner's cautioner to produce him in court.

NOTE.-It is sufficient to deprive the petitioner of the benefit of cessio that he concealed in his state of affairs his joint tenancy with his father in a certain pendicle, of which fifteen years are yet to run, with the right of survivorship, and certain provisions for payment of the value of buildings erected on the premises. It may possibly be the fact that the stock belonged at one time to his father, but the presumption arising from joint tenancy is for joint ownership, both of stock and crop; the more especially where both tenants reside and work on the place, and where as here, according to the petitioner's statement, his wages are merely nominal or rather elusory.

But apart from this special objection, to grant the petitioner in the circumstances the benefit of cessio would be a most monstrous abuse of a privilege intended only for an insolvent whose misfortunes arise from innocent causes. In the words of Lord Stair, "Cessio had its origin in 'Compassion for human misery,' and accordingly Mr Erskine lays it down that no debtor whose debt arises from a crime or delict is entitled to this privilege." In many cases cessio has been refused where a party was imprisoned on a decree of damages awarded in a civil suit.

The present case is really without a parallel. The petitioner was prosecuted for aliment of an illegitimate child. The too common denial of paternity was set up, and after a lengthy litigation the mother succeeded, but incurred an expense of no less than £23 16s 1d. Very likely a sum nearly equal would be incurred on the side of the defender. These two sums combined would have been sufficient to have alimented the child during the whole alimentary period.

The father is charged to pay the aliment, and, without ever having entered the portals of a prison, he brings this cessio, the expense of which also would have gone a considerable way towards the aliment of his child. He has no creditors, and owes no debt whatever, save and except that due to the unfortunate girl and her agent, and he now purposes to cancel the bygone aliment, and the expenses occasioned by his opposition, and modestly to content himself with finding caution to pay future aliment.

In the first place, there is the reverse of proof of insolvency. His present debt is only £38, on his own showing he has £10 per annum of wages and his board besides, and an equal interest in a lease for a long term of years, with the right to its sole benefit on survivorship. Perhaps under the modern law of cessio insolvency may not be absolutely necessary, if in the meantime a debtor is held in prison, and has not the immediate command of his funds to meet his liabilities. In that case the disposition omnium bonorum meets the difficulty, and continued imprisonment can be of no further avail.

But, in the second place, the inability of a debtor to satisfy his creditors in the words of the style which the legislature has compelled the petitioner to adopt, "must have arisen solely from misfortunes and losses." It would be a perversion of all language to bring under such description the sinful act of begetting a child in fornication, and the subsequent expense

of fixing the paternity on him, because of his false denial of the fact.

The Court have viewed alimentary claims in this light, and uniformly refused cessio where the debt of the opposing creditor arose from the aliment of a bastard, 11th July, 1811, Ritchie; 4th July, 1812, Steele; 2d March, 1827, Baird; 20th February, 1830, A.B.; 2d July, 1831, Smith.

The only relaxations of this rule which in modern practice have been allowed are:

1. Where the mother has not been the incarcerator. In that case cessio is granted, but the alimentary claim reserved, 4th December, 1824, M'Alman; and,

2. Where the father is in prison, and alimented by the mother, 13th December, 1828, Houston; 20th January, 1832, M'Fee. But there only under certain provisions for future aliment, 11th March, 1834, Russell; 27th November, 1857, Cassels; 2d December, 1856, M'Neill; same date Chisholm. Under the rule of the accessory following the principal the expenses incurred in making good an alimentary debt seems necessarily to have the same privilege.

In England, under the Insolvent Debtors' Act, 7 Geo. IV., cap. 57, s. 49, the benefit of the Act was refused to a debtor, "Who put any of his creditors to any vexatious or frivolous defence or delay in any suit for recovering any debt due by the prisoner.' Such wise provision, it is believed, still stands part of the law of the sister kingdom for relief of insolvent debtors actually in prison, and which is analogous to our law of cessio.

The substitute desired the citation of any authority where a person in the same circumstances as the petitioner-a debtor in an alimentary debt, with none but that one creditor, and who, according to his statement, has not one farthing bonorum, and has not been one instant in prison, has nevertheless been found entitled to cessio, and thereby, to all intents, discharged from his past debt of aliment. It is hoped, for the sake of the morals of the land, such an authority may never be found in our law reports, and certainly such a rule will not (Initd.) H. B. originate with the Sheriff-Substitute. Act. SKEETE.

Alt. PINKERTON.

The petitioner entered no appeal against this judgment. The cautioner having produced the debtor at the bar, he was taken to prison, and thereon immediately satisfied the claims of the incarcerators.

27TH OCTOBER, 1865.

COMMISSARY COURT, PERTHSHIRE-PERTH, (SHERIFF BARCLAY, LL.D.)

MELVILLE JAMESON and Margaret Robb, competing. Competition-Executor-Dative-In a competition for the office for executor between the widow of the deceased qua relict, aud the factor for a pupil child qua next of kin, the latter was preferred.

THE facts appear from the annexed Interlocutor and Note:

Perth, 27th October, 1865.-Having heard parties' procurators, on the closed record made up by minute of admis sions, and made avizandum with the debate, prefers the petitioner, Melville Jameson, in the character of factor, appointed by the commissary to Margaret Robb, the only child and next of kin to David Robb, to the office of executor dative to the said deceased. Therefore refuses the prayer of the petition of Flora Cameron or Robb, craving to be decerned executrix-dative qua relict of the said deceased, and grants the prayer of the said factor, craving to be decerned executordative qua factor for the said Margaret Robb, the next of kin to the said deceased David Robb and decerned accordingly (he finding caution as use is), and finds no expenses due. HUGH BARCLAY.

(Signed)