claim reparation is the alleged flooding of the Crowhill quarry, to which they have right under the lease, by the operations of the defenders Leadbetter, Govan, & Co., who are tenants of the adjoining quarry to the rise, or the Huntershill quarry, which, it is said, have so much enlarged the area in which the water has gathered that runs into the pursuers' quarry as to render it necessary for them to have a much more powerful steam engine constantly working in order to prevent the quarry from being flooded with water and rendered unworkable. The additional cost of the engine thus imposed upon the pursuers is stated by the witnesses at £100 a year for four years. And that is the principal ground of damage stated against the defenders.

The ground which the pursuers allege is drained by the defenders' quarry, and the water of which percolated into theirs, is stated by respectable witnesses as amounting to a very considerable space, the rainfall on which, calculated at the moderate rate of thirty inches in the year, produces in a twelvemonth the enormous amount of 10 million and 80,000 gallons. This immense body of water, before any quarries were worked there at all, flowed through or down a little valley which declined to the north-west, and fell into a burn which passes both the quarries of the pursuers and defenders. The real ground of complaint of the pursuers against the defenders is, that by opening their quarry in the place they have done, they have entirely altered the natural flow of this surface water by intercepting it in its course to the burn by the excavation of a huge quarry which received it all, and through permitting it to percolate through the barrier between the two quarries, and thereby materially to augment the mass of water against which the pursuers had to contend in the lower quarry.

It cannot be denied that this enormous body of water is a very ugly inmate of either quarry, and an inspection of the plan, as well as an examination of the pursuers' witnesses, particularly the eminent engineer, Mr Landale, must be sufficient to convince every one who reads the evidence that the operations in these quarries, by artificially collecting the water in such great quantities, has materially augmented the difficulty of dealing with it and the expense consequent thereon. If therefore the mischief were entirely imputable to the defenders Leadbetter, Govan & Co, and them alone, the Sheriff would have had no hesitation whatever in finding damages due. For example, if it had appeared from the evidence that during floods or heavy rains the water thus intercepted by the defenders' quarry in its natural course, accumulated to such an extent as to surmount the barrier between it and the lower quarry, so as to rush down in a formidable torrent, and produce an accumulation of water which it required weeks to pump out, or even if the lateral pressure of the water by the accumulation in the upper quarry had been such as materially to augment the water that percolated through it, and thereby rendered a more powerful engine in the pursuers' quarry necessary to drain it away, the Sheriff apprehends it to be clear that the defenders were bound to take steps to prevent such a state of matters, or pay damage therefor. But the material feature which distinguished the present case is this, it is not said that the water has been allowed unduly to accumulate in the upper quarry, and that in consequence thereof it forces its way into the pursuers' quarry in excessive quantities. It is clearly proved, indeed, that the pursuers' quarry has often been flooded, once to the depth of thirty feet in one day. But that arose not from the operations of the defenders, but the overflow of the burn on the westward to both quarries, and the stream of water that had come down the railway which crosses it. What the pursuers complain of is, that they are deluged with more water than they are bound to receive, by the drainage water of an extensive area to the rise being, by the opening of the quarries, thrown upon them as the lower of the two. The Sheriff thinks that they have adequately proved this increased delaging, but it is by no means equally clear that it is entirely owing to the defenders' operations in their quarry that this has arisen. On the contrary, the pursuers' own excavations have been at least equally instrumental in producing it. Supposing that the defenders had never opened their quarry at all, or that they never filled up with rock and debris as long as the pursuers' own quarry remained open, the water would equally flow into it from the higher level through the fissures of the rocky barrier now standing between the two quarries. It is the opening of any quarry on the side of the streams per

colating from the sides of the higher ground down to the burn which is the real cause of the overflow of water which the pursuers so loudly complain of, and it is neither reasonable nor just to represent the blame as entirely caused by the defenders. Even in the most unfavourable point of view, the flooding was owing to the joint operations of the proprietors of both quarries, and it is trite law, that in such circumstances neither have any claim of damages against the other. In the Sheriff's view, the pursuers' witnesses were not the least mistaken in their estimate of the damage done by the water in the pumping requisite to keep it down. Where they erred was, in ascribing it solely or even chiefly to the operations of the defenders. After all, the water that came upon the pursuers was nothing more than the natural percolation of the fluid through the crevices of the upper soil; and the pursuers are bound to receive that by the plainest principles of natural law, sibi imputent, that they excavate a quarry which cut through the middle this natural flow and brought it into their quarry in excessive quantities.

But although for these reasons the Sheriff feels himself compelled to adhere to the Interlocutor of the Sheriff-Substitute on the merits, yet on the point of expenses he thinks there is room for a modification to a certain extent. The case is one of equal novelty and difficulty, in which there was a great deal to be said, as was extremely well said, on both sides, and the Sheriff himself had very great difficulty in making up his mind on the subject. In addition to this, the defenders were clearly wrong in one particular, viz., the pump which they put up in the barrier between the two quarries, by means of which, and a fissure in the barrier, they continued for several months, without being perceived, to pump water out of their own quarry into the pursuers'. This attempt was no sooner discovered than it was interdicted by this Court, and the defenders evinced a proper sense that they had been in the wrong in so doing, by acquiescing and tendering £25 as damages for the proceeding. But this discovery naturally led to the suspicion that something of the same sort was going on on a still greater scale, and in a manner gave rise to the present action. In these circumstances, while the Sheriff thinks that the defenders have a good defence against the main grounds of action, yet there appears to be fair ground for a modification of the expenses found due to the defenders, Leadbetter, Govan & Co., and he is of opinion that these expenses should be modified to two-thirds of the taxed amount.

With regard to the defender Galloway, the Sheriff thinks that he is entitled to expenses subsequent to the closing of the record, but not prior thereto, in respect he did not produce the minute of sale for the purchase of the rock, and the pursuers were entitled to call him as occupant, till it appeared from the statements on record or proof that he had no concern with the operations complained of.

On the defenders' appeal in regard to the sum tendered and awarded for damages, the Sheriff thinks that tota materia perspecta that they have got very well off for the £25 which they themselves tendered and is awarded by the Interlocutor under review.

Act. D. HANNAY. Alt. For Galloway—W. P. ALLARDICE. For Leadbetter, Govan, & Co.-KIDSTONS.

4TH JANUARY, 1865.

SHERIFF COURT, DUMBARTON. (SHERIFFS HUNTER AND STEELE.)

GEORGE BURNS v. JOHN HEATHERTON.

Landlord and Tenant-Delivery of Subjects let-Rent, retention of.-A tenant took certain subjects as lately possessed by the outgoing tenants. After severnl years possession and payment of the rent, on the plea that all the subjects had not been delivered to him, he failed to pay the last three half-years' rent, and consigned the same in the Sheriff-Clerk's hands. On a petition for an order on the Clerk to pay the rents consigned to the

this account: Finds that the reference in the lease to the subjects let, as having been possessed by Messrs Morton & Henderson, the former tenants, is designative and not taxative, and the extent of their possession is therefore immaterial in this action: Finds that the defender having, from the commencement of his possession, which did not include the said shed or cellar, paid the full rent stipulated in the lease, without deduction or reservation, must be held to have got all that he bargained for, and cannot now be allowed to revert to that matter: Finds that the defender also claims to be indemnified for the failure of the pursuer to put the premises into a proper state of repair, as stipulated in the lease: but Finds that as the defender accepted of the premises, and paid the full rent for them, he must be held to have been satisfied on the subject of repairs, and is now precluded from making any claim for deduction on this ground: Therefore, repels the defences, and grants warrant to, and ordains the Clerk of Court to pay over to the pursuer the rents consigned in his hands by the defender, in terms of the prayer of the petition: Finds the defender liable in expenses, appoints an account thereof to be given in, and remits to the auditor to tax the same and to report, and

decerns.

The defender appealed, and after hearing parties' procurators, the Sheriff pronounced the following judg

ment:

The Sheriff having resumed consideration of the cause, in respect of the reasons stated in the Note hereto annexed, affirms the Interlocutor appealed against, and dismisses the appeal.

NOTE. The grounds of defence are, first, that a part of the abjects let was withheld, and, second, that the subjects were not put into and kept in a proper state of repair.

1st. The admitted facts, as corroborated by the documentary evidence, are subversive of the former of these pleas. The description given in the lease is designative and not taxative, and does not involve any warranty as to extent of possession. The subjects were taken possession of by the defender without objection, and the full rent was paid by him for a series of years; of these facts the defender himself has supplied conclusive evidence by the receipts produced. These receipts are in the ordinary terms, embodying no reservation qualification of any matters from which it can be inferred that the sum embodied in them was not the true rent for the premises let. This tenor of the receipts was obviously the result of deliberate intention. In three of them there are markings of certain deductions allowed, with reference to tax accounts and the water rates, which had been paid by the tenant, who was thus reimbursed. The doctrine is thoroughly established, that long acquiescence by the tenant in the subjects as delivered over to him excludes challenge.

2d. The possession of the subjects, and the evidence of the receipts are equally available for eliding the second defence. In urban subjects the rule is, that the tenant, if he had made Lecessary repairs, must prove that he has so done before he is entitled to claim deduction or compensation, and in royal arghs it is usual for the tenant, in order to secure his inCemnification, to apply to the Dean of Guild, whose warrant, proceeding on the estimate of tradesmen, is legal evidence both of the necessity and amount of the repairs. In the present case there is no indication of such evidence, and the Losence of it, combined with the continuous payment of the full rent in the manner already stated, is decisive. Act. R. G. MITCHELL.

Alt. J. COLQUHOUN.

5TH JANUARY, 1865.

SHERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON, BART., AND A. E. MURRAY.) WIDOW MEWAN v. INSPECTOR OF POOR OF BARONY. Pauper-Relief.—Held that a woman thirty-six years of age, but deprived of an arm, is not an able-bodied person in the sense of the Poor Law Acts, and therefore entitled to claim parochial relief.

THE pauper applied for parochial relief from the respondent Beattie, who is Inspector of the Barony Parish, but was refused. The pauper then applied to the Sheriff, who ordained the respondent to give in his reasons for refusing relief. The pauper gave in two medical certificates to the effect, that though only thirty-six years of age, she wanted her left arm, was afflicted with a peculiar complaint which entailed general debility, and was thus unable to earn a livelihood. In his answers the Inspector averred that the pauper was an able-bodied woman in good health, was aged thirty-six, was a fish hawker, and although wanting her left hand she was quite able to support herself by honest labour, that she had for a considerable time supported herself by her trade, and no change had taken place in her circumstances. This statement, with the exception of her age and loss of limb, was denied. A proof was ordered, and having been led and concluded, the Sheriff-Substitute pronounced the following Interlocutor :—

The Sheriff-Substitute having considered the proof, productions, and whole process, Finds that it is proved that the peti< tioner, Mary Cowan or M'Ewan, is not an able-bodied woman, and is not able to support herself without aid: Therefore finds the applicant entitled to relief, and ordains the respondent instantly to proceed and determine the question of amount of relief to be granted to the applicant: Finds the applicant entitled to expenses, allows an account thereof to be given in, and remits the same to the auditor to tax and report, and decerns.

NOTE.-It is clear that the applicant, who has lost an arm, is not an able-bodied woman. She is one who suffers under a "personal bodily inability to work," although that inability is not total. She is manifestly one of that class who are described in the Act of 1579 as "impotent persons, not being so diseased, lamed or impotent, but that they may work in some manner of work." Such persons are not excluded from relief, although they may be set to such work as they are capable of by the parochial officers. But it is also averred that even though she has lost an arm, she is able to support herself by her own exertions without aid. This averment appears to the Sheriff-Substitute to be negatived by the proof. It appears that since her husband's death, the petitioner has generally passed the winter in the poorhouse, and has hawked fish during the summer. But in former summers she also received an allowance from the Parochial Board. Hitherto, therefore, she has not maintained herself without aid. It is averred, though she may not have done so hitherto, she is able to do so now. Of this there is no sufficient evidence. It is true that she admits that she could support herself by working during the summer, if the parish would put her in funds to make a start, hawking being a trade that cannot be com menced without something to hawk. This admission, however, by no means shows that she can do without parochial relief, but is simply to this effect, that if she gets one kind of parochial relief she can do without another, for a grant of money to start her in hawking would be just one form of parochial relief. The Sheriff-Substitute is therefore of opinion that she is entitled to relief, although he has no right whatever to dictate to the parish what sort of relief should be given.

The defender appealed, and after a hearing, the Sheriff pronounced the following judgment:

Having heard parties' procurators under the defender's appeal upon the Interlocutor appealed against, proof adduced, and whole process, Finds that this is an application by the pursuer for parochial relief from the Barony Parish, and the defence is, that she is able-bodied and not entitled to relief: Finds it proved that the pursuer has lost her left arm, and that she is equal for light work, such as carrying a basket, or doing other kind of light work: Finds, that in addition she is subject to nervous debility, which has been induced through the loss of her arm: Finds she is thirty-six years of age, and subject to no peculiar illness or infirmity apart from the general debility above mentioned: Finds that the pursuer had at

B 2*

25th February, 1859, the pursuer shipped at Liverpool on board their ship the "Black Eagle," then bound for the River Clyde and Melbourne, 1000 sacks of salt, which the defenders agreed to deliver at the port of Melbourne at the wharf (all and every the dangers and accidents of the seas, fire, and navigation of whatever nature or kind excepted), unto Messrs Dennistoun, Brothers & Company, or to their assigns, on payment of the freight and average, and under the conditions specified in the bill of lading produced by the pursuer, No. 5/1 of process: Finds that the defenders also admit on record, that their ship the "Black Eagle," in the course of her voyage to Melbourne with the pursuer's salt on board, put into the port of Rio de Janeiro, that the master there sold the pursuer's salt, and the account produced by the defenders instructs that the gross price realised by the sale of said salt was £145: Finds that the defenders have failed to prove any of their averments, which go to show that the master of the "Black Eagle" was justified in selling the pursuer's salt: Finds that the pursuer has not proved the loss and damage which he has sustained by the sale of his salt, nor has he proved the value of said salt, but it is to be presumed it was worth the sum it realised at Rio de Janeiro: In law, Finds that the defenders having failed to fulfil their contract with the pursuer to carry his salt and deliver it at the port of Melbourne, and having failed to prove that the master was justified in selling it at Rio de Janeiro, they are bound to pay the pursuer the value of the salt, and are not entitled to deduct therefrom the freight which they did not earn, or any other of the deductions claimed by them in the account which they have produced: Finds that the pursuer, having failed to instruct any loss or damage he has sustained beyond the value of the salt itself, he is only entitled to its value, and as he has led no proof on that head, the price it realised when sold must be held its full value: Therefore decerns against the defenders for the sum of £145, with interest, in terms of the conclusions of the summons: Finds the defenders liable in expenses, of which allows an account to be given in, and remits to the auditor to tax and report, and NOTE.-Neither of the parties have led much evidence, probably the expenses of executing commissions to Australia and Rio de Janeiro have deterred them from doing so, but as both have renounced probation, the case must be decided upon the facts admitted on record. These facts are shortly these :The defenders received the pursuer's salt on board their ship to carry it to Australia, that the ship, in the course of her Voyage to that country, put into Rio de Janeiro, where the master sold the pursuer's salt, which realised the gross sum of £145. The defenders say that the ship, in the course of her Foyage, encountered a storm, in which she was greatly damaged, and had to put into Rio de Janeiro to be repairedthat a portion of the cargo, including the pursuer's salt, had to be discharged, and that previous to the salt being reshipped, the sacks were discovered to be quite rotten and unable to convey it, and that to remove the salt it would have been necessary to have it placed in new sacks, which would have cost as much as the value of the salt, and that it was judged to be best for the interest of the pursuer to sell the salt; the whole of these averments, however, are denied by the pursuer, and the only evidence led by the defenders in support of them is that of the mate of the ship, uncorroborated and quite insufficient to prove the averments. It must, therefore, be held that the master was not justified in selling the pursuer's salt, and that the defenders are bound to indemnify him for its loss, and for damages, if he could instruct any; at all events they are bound to pay him its value, which, in the absence of other vidence, may be taken to be the price it brought when sold, and the defenders are not entitled to deduct from the value of he salt the expenses incurred in the unjustifiable act of selling t, or for freight which they did not earn.

decerns.

This was appealed, and after a hearing, the Sheriff ronounced the following judgment:

Having heard parties' procurators under their mutual ppeals upon the Interlocutor appealed against, and having made avizandum, and considered the record, proof adduced, and whole process, Finds that this is an action for the sum of 200, as the value of 1000 sacks of salt which the pursuer hipped at Liverpool, on board the defenders' ship, the Black Eagle, in February, 1859, then bound for the River Clyde, nd Melbourne in Australia, and which the defenders agreed deliver at the port of Melbourne, on payment of the freight

and average, and under the conditions specified in the bill of lading No. 5/1 of process, and which salt is alleged to have been sold by the master of the vessel at Rio de Janeiro, with out the knowledge or sanction of the pursuer, and without any power of sale: Finds that the defence is, that during the course of the voyage to Melbourne, the vessel met with a violent storm, and was driven into Rio de Janeiro, where she was put into the hands of the agents for both parties, by whose orders the cargo was landed and sold, and the ship itself was afterwards sold: Finds that there was salt on board belonging to the defenders, and it, as well as the pursuer's salt, was sold at Rio de Janeiro, and the defenders allege that the whole salt was sold for as much as it was worth, but it proved insufficient to meet the charges attaching to it: Finds that the Interlocutor under review finds that the defenders have failed to prove any of their averments which go to show that the master of the vessel was justified in selling the pur suer's salt, and that as the pursuer has not proved the loss and damage sustained by the sale of the salt, nor the value of it, it must be presumed that it was worth the sum it realised at Rio de Janeiro: Finds it alleged by the defenders that £290 was all that the 2000 sacks of salt produced when sold by auction at Rio, including the pursuer's 1000 sacks and the defender's own, but that the deductions for the sale, etc., were £151, leaving £139 as the nett proceeds of the whole, one half of which the defenders admit their liability for, but they have not consigned it, as they contend that the pursuer is liable for a rateable proportion of the freight of the salt to Rio de Janeiro, being £82 68 8d, which more than compensates the half of the clear proceeds of the salt: adheres to the Interlocutor under review, finding that the defenders have failed to prove sufficiently their allegations tending to show that the master was justified in selling the pursuer's salt at Rio de Janeiro: and, in respect the circumstances proved were not of so urgent a nature as to authorise the sale of the salt at that port, Finds that the pursuer is entitled to the value of the salt, and to any loss or damage he can prove he has sustained by the sale, and that the defenders are not entitled to deduct therefrom any charges for storage, or sale, or unloading at Rio de Janeiro, nor for freight to that port, in respect the voyage was not completed, and the sale was not authorised by the pursuer; and, as regards the sum to be decerned for as the value of the salt, adheres to the Interlocutor under review, for the reasons stated by the SheriffSubstitute, and dismisses the appeals for both parties.

NOTE. Had the defenders led sufficient proof of their aver ments on record, which they have not, it might have been held under the authority of the decision in Prouson v. Deut, viii. Rose's Privy Counsel Reports 419, that the sale of the salt at Rio de Janeiro was justifiable. But it appears from the date of the vessels arrival at Rio de Janeiro, which was on 24th July, and the period of the sale there, on 17th November, that there was ample time to have written by the first post or even second mail, and got an answer from Great Britain. This rendered the master's interference with and sale of the cargo more inexcusable. The salt was not like fruit, of a perishable nature. It was not liable to much injury itself; it was the bags in which it was contained only which got rotted by the absorption of damp. Abbot, p. 302, says expressly that it is the duty of the master to convey the cargo to the place of its destination, and that any attempt to alter that must be looked on with the greatest jealousy, and only sustained on obvious necessity. Selling a cargo is so extreme a measure, that it will not be held justifiable if there were opportunities of transmitting the cargo, so as to get it to the port of destination, or even if it could, without heavy loss, be stored to await the owner's instructions as to its ultimate disposal. The English authorities are clear that the main and paramount duty of the captain or master is to carry the cargo to the place of its destination, and that nothing short of obvious peril to the ship and cargo, or serious loss, as by the perishing of the goods, can justify a conversion of them. The proof adduced by the defenders to justify the sale of the salt here at Rio de Janeiro, is extremely weak and altogether inadequate to make out a case, either of necessity or obvious is due, are where the goods are transhipped and sent on to the expedience. The only cases in which freight pro rata itineris place of destination, or where they are taken out of the vessel by the act or orders of the owners.

Act. ROBERT Ross.

Alt, ANDERSON KIRKWOOD,