to reprove and admonish him of the consequences of his repeating the offence. But this applies only to a certain class of offences, to which the present does not belong. It may embrace even acts of disobedience in the sense of breach of general orders, or orders given ex intervallo when the breach results from mere forgetfulness, inadvertence, or the like. And in this very case there occurs one example of the class of offences calling for warning.

There was here a fault committed in leaving the mill without permission, while the mill was at work, and the whole strength of the farm required for its working, with the result of throwing the whole operations into confusion, and compelling the grieve to take the pursuer's place. This may serve as an example and illustration of the kind of fault which does not justify instant dismissal without remonstrance. But what followed was wilful, determined disobedience of an order three times repeated, and that followed up by a refusal to apologise, and an assertion by the pursuer that he had done nothing wrong, necessarily implying that he was prepared to do the same thing to-morrow. If the master's orders were at all justifiable, this was a fault of the highest kind. It not only authorised the master, but seems to have made it very difficult for him to do anything else than dismiss his rebellious servant. Perhaps it might hardly be inaccurate to say that without any dismissal it was in itself a subversion of the contract of hiring. What the servant by such a contract engages for, is to do the work prescribed by his master, in terms of the agreement, and when work is lawfully prescribed, and the servant deliberately, and without excuse, refuses to do it, and justifies and persists in that refusal, the contract is broken by himself. It is he who puts a stop to its fulfilment. In the present case, the Sheriff can have no doubt at all that the pursuer's employer was perfectly justified in refusing to have anything more to do with him, unless the defender's own orders were unlawful, and such as the pursuer was entitled to resist.

That this was so the pursuer is bound, and has undertaken, to establish. But it is thought that he has not succeeded in doing so.

The witness, James Innes, is in the same boat with the pursuer, whose conduct he imitated. William Ewen, the grieve, who made the contract with the pursuer, but who is no longer in the defender's service, depones that he said the period of work was "generally ten hours." This is the more reliable statement, and even if the word "generally" had not been expressly used, the Sheriff is much inclined to think that it must have been understood.

At all events, the burden of proving the facts upon which the pursuer's disobedience is to be justified lies upon him, and it cannot be held that the defender undertook that the work hours should never, although they were not intended generally to, exceed ten hours.

Then, has the pursuer proved that he was disabled by hunger from obeying the defender's orders, or that it was inhuman to issue these orders? Dinner in the defender's kitchen was to be ready at twelve o'clock. When the dispute occurred it was about half past eleven. The pursuer's fire was not then kindled. He was only beginning to work about the grate in preparation for kindling his fire, and after that, if he did not accept the defender's offer of dinner from his own kitchen at twelve o'clock, the pursuer's own materials had still to be made ready after his fire burned up. The difference of time was therefore little better than a pretence, and even on ordinary occasions, when the pursuer was working at his ordinary labour in the fields, not, as on the present occasion, in the farm-yard, it was usually half-past eleven, and sometimes nearly twelve, before his dinner was ready.

The defender depones that the disobedience of the pursuer and his two associates threw all his arrangements into disorder. Whether these arrangements were the most perfect that can be figured is not the question. It would be absurd for a court of justice to sit in review of the economy of a farm, and refuse effect to a contract of hiring if it thought some more perfect arrangement might have been devised. The farmer is entitled to the presumption that his arrangements were reasonably well made, unless his servant, who takes it upon him to overturn them, can show that they were unwarrantable and unlawful. And this the pursuer has

failed to establish.

It is unnecessary to enter into any detailed examination of the decisions, such as Hamilton v. Maclean, 9th Dec., 1824,

iii. S., 379; Wilson v. Simson, 11th July, 1844, vi. D., 1256; A. v. B., 20th Dec., 1853, xvi. D. 269.

The Sheriff can see no reason to reject the views of Lord Ellenborough in Shaw v. Arnott, 2 Stark, 256, and even the case, Reid v. Lindsay, 29th May, 1816, H. 399, including the observations of the reporter and remarks of the Judges, is unfavourable to the pursuer. Decided by a Judge called in to make a majority, it was reversed by the House of Lords, 1 Sh., app. 124. But it is quite plain that the remarks made by Baron Hume and those which fell from the bench in Scot land in favour of the pursuer in that case were distinctly de signed to shut out such a case as the present. After figuring cases totally unlike the present obstinate refusal to work. Baron Hume continues-The master "is bound to admonish, and so forth. If the servant again offend, after such an exhortation, he errs with his eyes pen, and if he suffers in consequence he has only himself to blame." Lord Glenlee, who spoke in favour of the pursuer, the servant, said "The duties of ser vants require warning. If disobeyed, contract is dissolved." And Lord Pitmilly, who concurred with Lord Glenlee in a judgment in favour of the pursuer, said "If he had been warned, or had disobeyed, or been guilty of insolence, that would have dissolved the contract." But in the present case there was the express and positive warning that if the pursuer did not obey he must go. And after that, as well as before, there was the most inveterate species of disobedience. There was not a mere casual inadvertency or hasty neglect of gene ral orders. There was not even the mere doing of an act for bidden which might have occurred through momentary err, and be repented of afterwards. But there was a dogged, per sistent refusal to perform services three times enjoined, the injunction being accompanied by distinct warning that failure to obey would put an end to the contract. There was an express justifying of the disobedience in words, and an implie! intimation that it would be repeated.

There may possibly be cases where a Court may be justified in finding wages due up to the time of the contract being broken. And in some cases such a proportion of wages has been allowed by the parties where it could not be demanded as a matter of right, or awarded by the Court. Indeed, a decree for such proportion of wages, when resisted by the master, is not very easily reconciled with principle. The six months' service is a unum quid. That is what the master contracts for. And if he does not get that, he has got nothing for which any wages at all were promised. But it is also a very hazardous discretion, and one which, if the Sheriff possess it, he is bound to exercise with extreme caution. Of late years, at any rate, whatever may have been the case formerly, it is by no means to be taken for granted that the servant is averse to a change of masters. And if a servant is to be paid up to the day when he refuses te obey his master, and soon afterwards finds a fresh employer, the servant loses nothing, while the master is left is the middle of a term with his contract broken, and his laud laboured.

Sheriff Court Act-Sec. 15-Dismissal of Action-Jucial Reference.-Held (1) that sec. 15 of Sheriff Court Act only applies to a cause, not to a summons not yet called; (2) that consent by parties in a Judicial R ference will authorise the Court to revive the action the date of the consent.

THE summons in the present action was dated the 2814 November, and executed on the 18th December, 1861, it was called on 10th June, 1862. Appearance had been duly entered on 24th December, 1861. After some procedure, the case was of consent remitted to a judicial

eferee, on 12th May, 1863. On 6th October, 1863, the ction was revived by the Sheriff, of consent. Thereafter he parties met before the referee, on 19th February, $64, being nearly four months after the above revival, hen the following minute, written on the copy minutes Court, was subscribed by both parties and the referee: 19th February, 1864.-Parties present with referee nsent that the process shall be held as revived of this te." After some meetings, the referee issued his final ard on 18th May, 1864. It was lodged in process on h May, being three months after the date of the above ute, and above six months after the previous revival the action by the Sheriff. On moving for decree, it objected by the defender that the action stood dissed, in terms of the 15th section of the Sheriff Court -first, in respect of the interval between the execuof the summons and the calling; and, second, in ect no step of procedure took place in the process, he sense of the Act, between 6th October, 1863, and 19th May, 1864.

he pursuers pleaded

The 15th section of the Sheriff Court Act does not

y to a summons not called for three months after ution, but only to want of procedure after the nons has been called. Barclay's M'Glashan, p. 316, Sheriff Macfarlane (Lord Ormidale) in Wieland v. 1, 3d August, 1859.

The statute only applies where no "proceeding" been taken in a cause. The minute of 19th nary, 1864, was a "proceeding" in the cause, and as all the procedure before the referee, to the date s award. The reference was a part of the process; procedure therein was procedure in the process; it disposing of the cause, it excluded other proof, and award was equivalent to a decree, only requiring al sanction. Gray v. Paterson, 21st April, 1862, ff Court of Greenock. The decision in Gillon v. son only showed that the action fell by six months' , after exhausting the procedure before the referee, his award. The parties had power to revive the of themselves, and the minute did so. M'Intosh infra. The defender pleaded—(1) The 15th section le statute applied from the date of the defender ng notice of appearance. The case was then in and no procedure having taken place for above six hs thereafter, the action fell. In Wieland v. King ppearance was entered. Under section 3d of the te, the action fell to be called on the "first Court after appearance. (2) The 15th section of the te required procedure before the Court. Procedure e the referee was private, and was not sufficient to rve the action from the operation of the statute. pursuer ought to have had the action revived within months. The statute was imperative. Campbell v. wood, 7th November, 1862. The Sheriff-Substitute punced the following Interlocutors, which have been

esced in:

e Sheriff-Substitute appoints the case to be enrolled e Court day in this vacation, in reference to the ion suggested by the following facts, which the tes of Court instruct, namely-1st, the fact of no eding being taken in the cause for more than three hs after the 24th December, 1861; and 2d, the fact O revival of the action being obtained within six

months from that date; the question in these circumstances being, Whether the process stood dismissed at the 25th March, 1862, and absolutely lapsed at the 25th June thereafter, nullifying all intermediate and all subsequent procedure taken therein?

NOTE.-There have been some recent discussions in this case involving the question whether the action be now dead or still subsists. But all these discussions have had reference to the state of the process at and after the 6th October, 1863, and it was only when proceeding to consider the case in reference to them that the SheriffSubstitute for the first time discovered the hiatus in the

procedure to which he has thought it proper now to direct the attention of the parties.

The case was put to the roll, and to his order the Sheriff-Substitute added the following

NOTE. The said motion, which was lodged on the 30th May, 1864, has given rise to repeated oral discussions, having exclusive reference to one question, namely, Whether this action be still alive or has expired? The order now made proceeds upon the assumption that the process stands in the first of these conditions; and to this result it is thought that all the circumstances of the case conduce.

1. The action was last revived by the Court on the 6th October, 1863, after being remitted to a judicial referee by Interlocutor dated the 12th May, 1863. The referee's report is dated the 18th, and was lodged on the 19th May, 1864; and it was in reference to it, and for the purpose of having the authority of the Court interprocess, was lodged on the 30th May, 1864, in order, as poned thereto, that the pursuer's said motion, No. 28 of it bears, to be called on the next day. It was the calling of this motion which introduced the question of the application, at this stage of the cause, of the 15th section of the Sheriff Court Act, 16 and 17 Vict., cap. 80, which enacts that" where in any cause neither of the parties thereto shall, during the period of three consecutive months, have taken any proceeding therein, the action shall, at the expiration of that period (eo ipso) stand dismissed, without prejudice, nevertheless, to either of the parties, within three months after the expiration of such first period of three months, but not thereafter, to revive the said action, on showing good cause, to the satisfaction of the Sheriff, why no procedure had taken place therein, or upon payment to the other party of the preceding expenses incurred in the cause, whereupon such action shall be revived and proceeded with, in ordinary form, etc." It is obvious that if no intermediate procedure took place, effectual to exclude the operation of this enactment, the length of time intervening between the above two dates of 6th October, 1863, and 19th May, 1864-exceeding, as it does, a period of six monthswould make an end of the cause. It therefore becomes a point of importance to ascertain what procedure intervened, and how it affects this question.

The first step taken by the parties under the reference appears to be a minute in the following terms, signed by the pursuer's agent, by the defender, and by the referee:19th February, 1864.-Parties present with referee consent that the process shall be held as revived of this date." At the date of this minute more than four months had elapsed since the last revival of the action the reference was proceeded with till brought to a close on the 6th October, 1863. Following upon this minute, by the lodging of the referee's report on the 19th May, 1864, being exactly three months from the date of the minute. As part of these proceedings, it appears that the parties entered upon the consideration of the case, along with the referee, on the same day on which the minute was signed, and (it is to be presumed) immediately after it was signed. It also appears that on the 26th February, 1864, the parties concurred in requesting

of the referee the indulgence of some delay, in order to effect a compromise of the case. It farther appears that a meeting of the parties which the referee had called for the 28th of March, 1864, was adjourned to a subsequent day on the defender's special request.

The question to be considered in these circumstances seems to be, what effect is due to the above minute of 19th February, 1864? Is it effectual to revive, or is it not? If effectual to revive the action, then the lodging of the referee's report on the 19th May, 1864, kept the process alive; and as between that date and the date of the last Interlocutor in the cause-8th August, 1864three months have not elapsed, the action still subsists.

The consent of parties alone has been held to be a sufficient cause for reviving an action under the special enactment in question, as was decided in the case of Mackintosh v. Mackintosh, 10th November, 1863, 36 Jur., 24. The above minute, therefore, as it contains the clearest expression of the consent of the parties in this case to have the action revived, ought to be binding upon both, at least to the effect of barring either from retractation. And more particularly ought it so to bind the defender, in respect of his subsequent homologation of the reference before referred to.

If the authority of the Court had been interponed to the said minute when it was made, there could not have been any question about its efficacy to revive the action. It is simply owing to the want of such interposition that the defender now contends that the minute is abortive. The question of the necessity of the Sheriff's intervention to the revival of an action is adverted to by the Lord Justice-Clerk in the above case of Mackintosh, but without the expression of any opinion upon it. The SheriffSubstitute is disposed to hold that the terms of the minute under consideration are sufficient to authorise the Court, even now, formally to revive the action as of the date of the minute. The consent which the minute expresses is "consent that the process shall be held as revived of its date," which seems to imply that the Court was to have the power of proceeding, by Interlocutor of even date with the minute, to revive the action, even after an interval of time from the date of the minute. The parties themselves must have concluded so when, after signing the minute, they allowed the reference to proceed. Holding this view, therefore, the SheriffSubstitute would now be prepared to write such an Interlocutor; and if that were done, it would, in his opinion, be effectual to keep the process alive.

2. What now remains to be noticed relates to the question suggested by the Sheriff-Substitute in his last Interlocutor; and, after consideration, the Sheriff-Substitute has come to be satisfied that the facts there stated do not relevantly raise any question touching the dismissal of the action which requires to be here considered. The action, it appears, was called on the 10th June, 1862; and, as the first step of judicial procedure therein, the calling is what made the process a depending action (M'Glashan, 948, 9) or "cause" according to the statute, in the legal and technical sense of the latter term. And it is manifest that it is only to actions which are depending-that is, as now explained, which have been called, that the dismissal of action clause in the Sheriff Court Act can possibly apply the dismissal of an action which was never in dependence, being an absurdity. See on this point the reported opinion of Lord Ormidale, while Sheriff of Renfrewshire, in the case of Wieland v. King, 3d August, 1859, 1 Sheriff Court Record, 99. Act. C. B. Rowan.

Alt. G. MORTON.

16TH MARCH, 1865.

SHERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS ALISON and StratherN.)

WALTER MACKENZIE, accountant in Glasgow, (Coubrough & Co's trustee), v. Jo¤N LECK, designed as residing in Ure Place, Glasgow. Jurisdiction-Citation-Domicile.

- In November, 1862, defender left this country to go to Australia, taking with his his wife, he having no children. When he left he was a tenant of a house in Glasgow, and he continued in his absenc to be tenant, and the house was let on his behalf furnished— the furniture being his. His name appeared in the Glasgow Directory for 1865 as residing at the house of which he was tenant. In August, 1864, he being still out of the country, an action was raised against him, and the summons was left at the house tenanted by him. In defence it was pleaded that the Sheriff had no jurisdiction.—Held, by the SherifSubstitute that the defender was amenable to the Court, Altered by the Sheriff, and action dismissed.

THE circumstances of this case are fully detailed in t following Interlocutors:—

Having heard the procurators for the pursuer and for the defender Leck on the closed record and concluded proof, so lar as applicable to the preliminary defence of no jurisdiction, Finds it stated for the defender, that prior to 15th May, 1882, he carried on business in Glasgow as a calenderer, under the firm of John Leck & Co., and it is admitted that there was deposited with him, and he received the copper rollers in ques the pursuer as trustee on the bankrupt estates of A. P. Co tion in April and May, 1862, to be held for and re-delivered to brough & Co., calico printers, Strathblane, and for part which the said defender signed the receive notes No. 5-7 process: Finds that in November, 1862, the defender, wh had previously retired from business, left this country, takin with him his wife, he having no children: Finds it instruct by the narrative in the factory and commission produced, and it is proved otherwise, that he went abroad to travel and f visit New Zealand, Australia, and other foreign parts, and granted commission and power to his brothers, who reside i Glasgow, to manage his affairs in his absence, and, inter al him: Finds that when the defender left Scotland he to defend him in any processes which might be raised against yearly tenant of a dwelling-house in Ure Place, Glasg, th furniture in which belongs to him, and he has continel W be tenant of that house since, and he is now the tenant there for the current year, although during his absence he has hire out the house furnished: Finds that the defender's nam appears in the Glasgow Directory for the present year as t siding at said house, where he was cited to this action, his said brothers, who were examined, have deponed that the have been receiving letters from him, and expect him back again in Glasgow in course of the approaching spring, settle: Finds that it has not been proved that the defende it was not their understanding that he went abroad had acquired a domicile abroad, and, in these circumstan Finds that the defender has not lost the domicile which had acquired in Glasgow by absence on his tour: Therefor repels the preliminary defence, reserves all questions of penses, and appoints the pursuer de novo to answer defender's statement of facts within six days, and thereaft ordains the process to be enrolled in the adjustment roll.

NOTE. In this case the contract of deposit was made the defender in Glasgow, and there that contract was to fulfilled by restitution; further, the rollers in question. which delivery is sought, are still there. These were mater elements of consideration in sustaining the jurisdiction of t Court over the defender, although he is at present withdam from Lanarkshire and out of Scotland. But the point my insisted on in defence was that, for the purposes of citation, the defender had no domicile in this country, and that, there fore, he was not lawfully convened to the action. Now, it u

well-founded law, as was maintained for the defender, that if a person, not having a dwelling-house in Scotland occupied by his family or servants, shall have left his usual place of residence, and have been therefrom absent during the space of forty days, without having left notice where he is to be found within Scotland, shall be held to be absent from Scot land (6 Geo. IV., c. 120, sec. 53); and it is also true that, in the present instance, the defender, when he started to travel, did not leave his family or servants behind in the house from which he went forth. Yet the principle by which a continuing domicile must be held still to be his seems to be this, that although bodily absent, his furniture and effects were there; there he had set up his lares et penates, his household gods, and they were left standing in the dwelling in Ure Place till he should return. He did not sever, and it was not his meaning that he should sever, his connection with that abode. And while occupation in his absence by wife, family, or servants is taken to indicate the master's intention to return, nevertheless such occupation would neither make it his domicile, unless previously acquired, nor preserve it when acquired, if it could be shown that, when leaving, he had no intention to revert to it. When, therefore, a dwelling-house is rented by one going abroad pro tempore, but intending to return to it, other circumstances are admissible to prove the intention, and are as effectual for that purpose as occupation by his wife, family, or servants. Here the fact of the defender having no family but his wife, gave him a facility for carrying his family with him on his travels, which distinguishes in that respect this from other cases of the class; but it Cannot be said in the face of the ascertained facts that he was The less certain to return to his house than if his wife had emained in it. It is the animus revertendi which preserves temporarily vacated domicile, and the contrary animus, with be acquisition of a new abode, would reuder the former home o longer a man's domicile from the moment he had left it =will not inure to him for forty days if he never meant to eturn, and had entered into possession of another house. The resent defender seems not to have acquired a new domicile; the contrary, it has been seen that he keeps possession of e domicile that he had, by leaving therein his furniture and fects; by annually contracting for its let while away; by owing his connection with it through the public directory; ad retaining the privilege of resuming the personal occupaon on whatever day he may choose to return. Besides, he a delegated authority to his brothers, during absence, to tend to his interests, even to the effect of defending actions raght against him, in itself a circumstance from which it Lght reasonably be inferred that he had contemplated and ade provision for an action like this. One who never Baght of coming back would hardly have provided for litigain in a jurisdiction which (he having the animus to remain road) could not have extended to him. Then, pursuing his gument that, as he had ceased to have a domicile, the deder insisted that he could only be regarded as a foreigner, dought, as so regarded, to have been sued in the Supreme urt, the communis forum for foreigners. The validity of s argument depended, of course, on the fact whether the ender had lost or retained his domicile in Glasgow. The riff-Substitute has shown why he thinks that the defender not lost that domicile, and therefore cannot look upon him a foreigner. In fact, whether for purposes of citation or of cession, a native domiciled Scotchman who has left Scotd, has acquired no fresh domicile abroad, and who has the mus revertendi, is not deemed a foreigner, and citation at dwelling which he had left has been sustained. (See ser v. Reid and Auld, June 21, 1821, 1 Shaw, 2d Ed., p. The features of that case are very similar to those arring here. The defender Fraser had gone abroad and n away six months, when he was summoned before the riff of Edinburgh, at the house which he had left, but rein his wife resided; decree passed, and he was charged he same house, and thereupon he brought a suspension, in ch he challenged the sufficiency of the citation, but the rt repelled the reasons of suspension, "in respect the susler designs himself of Malta House, Stockbridge, which is in the jurisdiction of the Sheriff; that the citation to the on before the Sheriff was left for him at that house, where wife then resided, and still resides, and that his absence from e was merely temporary." (See also Barclay's M'Glashan, I; and the case Brown v. Blackie, 1st Feb., 1849, 11 Sess. ,474.) The result, on the whole, therefore, is that the

Sheriff-Substitute thinks the defender to be still de jure the tenant and possessor of the house in Ure Place, and that the citation to this action, left for him there, is sufficient.

The defender appealed; thereafter the Sheriff pronounced the following judgment:

Having heard parties' procurators under the defender's appeal upon the Interlocutor appealed against, and whole process, Finds that the present action was raised against the defender, who is designed in the petition as "residing in Ure Place, Glasgow," on 31st August, 1864: Finds it proved and admitted that nearly two years before that date, or in November, 1862, the defender had left Glasgow along with his wife for Australia, with the intention apparently of returning, but he has not been in Glasgow since, and is still abroad: Finds that at the time the defender left Glasgow he was tenant of a house in Ure Place, which, with the furniture in it, is either still in the occupancy of the defender as tenant, or has been let furnished to another tenant: Finds that when the defender left Glasgow for Australia he did not leave any of his family or servants behind him in the house which he had occupied: Finds that the defender having along with his wife gone to Australia, and not having been in Scotland for more than eighteen months before the present action was served, had lost his domicile in Glasgow, in terms of the Act 6 Geo. IV. cap. 120, sec. 50, in so far as the question of his being subject to the jurisdiction of this Court is concerned, and that the mere fact of his still having furniture and effects in a house in Glasgow, whether let furnished to a tenant or not, combined with his name being in the Glasgow Post Office Directory as resid ing in Ure Place, Glasgow, is not sufficient to render a citation left for him at said house valid, seeing it is admitted and proved that none of his family or servants were left by him in that house when he left with his wife for Australia, and have not been there or in Glasgow since November, 1862: Finds, therefore, that the citation of the defender to the present action was invalid and inept, and that, having lost his domicile in Scotland, he is not subject to the jurisdiction of this Court: therefore alters the Interlocutor complained of, sustains the preliminary defence of want of jurisdiction, and dismisses the action: and on the question of expenses, in respect the pursuer may have been misled by the defender's name appearing in the Post Office Directory at the time the action was brought as still living in Glasgow, Finds no ex penses due to the defender up to the date of lodging the defences on 30th September, 1864, when the facts were divulged to the pursuer as to the defender having left for Australia; but finds the defender entitled to expenses subse quent to that date, of which appoints an account to be given in and taxed by the auditor, and decerns.

NOTE. By the Judicature Act 6 Geo. IV., c. 120, s. 53, it is enacted that if a party shall have been absent for more than 40 days from his usual residence "without leaving notice where he is to be found in Scotland, he shall be held to be absent" from Scotland, and can be cited only edictally at Edinburgh in the form prescribed by the statute. Whether the defender here might have been cited in that way under an action in the Court of Session need not be determined in this action, as there is no edictal citation against him; but he was merely cited at the house he had formerly in Glasgow, just as if he were still in Glasgow and subject to the jurisdiction of this Court. In any question of succession the defender no doubt may still be held as a domiciled Scotchman; but in a question of jurisdiction it is an entirely different matter, whether he still has a domicile in Glasgow to the effect of rendering him subject to the jurisdiction of this Court by a citation left for him at the house formerly occupied by him there. So far as this question of jurisdiction is concerned, the fact of the defender having left this country for Australia with an intention to return, seems of no consequence, as he might not carry that intention into effect for a dozen or twenty years to come; and could it be maintained that a citation left for him at a house he had formerly occupied in Glasgow would be sufficient, although still in Australia, and where he may have been for years? Neither does it appear sufficient that the defender, when he left this country for Australia, had certain furniture and effects in a house, which the Sheriff-Substitute designates as "his household gods," left standing in the dwelling till his return. The defender himself being bodily absent from Scotland, and having left

Interdict-Stoppage in transitu-Bill of Lading.—Goods were consigned to a firm which, on their arrival, was bank rupt. The bill of lading was endorsed to another firm, without value or for a prior debt, and this firm also soon after became bankrupt. This last firm also endorsed the bill of lading, without value or for a prior debt. The goods were warehoused ultimately in name of the last endorsee, who then sold them for value, and the purchasers took possession. In an action for interdict against the two last endorsees disposing of the goods as in transitu-Held that the goods were no longer in transitu; that the last was a bona fide transaction, and the transfer of the bill of lading, and the transfer in the store books to the name of the last purchaser, was completion of the transaction, and the transitus had ceased. After the goods represented by a bill of lading have been de livered, it is incompetent to crave interdict against transfer. ring or disposing of it.

THE circumstances out of which this action arose are fully explained in the Note to the Interlocutor of the Sheriff-Substitute.

The Sheriff-Substitute having heard parties' procurators on the question of interim interdict, and having considered the petition, with the specific statement made by the respondent, Walter Grieve, on the craving of the petitioners, and whole productions, recalls the interim interdict in so far as it affects the delivery of the sugars in question to the respondents, Paul, Sword & Co., but appoints parties to be heard further as to continuance of the interdict against Baine & Johnston and Walter Grieve, so far as it prohibits them from using or disposing of the bill of lading in question, and so far as it prohibits Walter Grieve from using or disposing of the bill of exchange or promissory note in question; and as to the further procedure in the case, assigns Friday first, the 6th curt., within the Sheriff Court Hall, at 11 o'clock forenoon,-meanwhile continues the interdict against Baine & Johnstone and Walter Grieve to the effect above stated, and reserves the question of expenses.

NOTE. This is a petition at the instance of Adamson, Howie & Co., merchants in Pernambuco, and James Pender Logan, merchant in Liverpool, and William Reid, merchant in Glasgow, sole partners of the company, against Baine & Johnston, merchants and storekeepers in Greenock, and Walter Grieve, merchant there, and Paul, Sword & Co., sugar refiners there, in which the petitioners allege that they shipped a cargo of sugar from Pernambuco by the ship Dante, for Stirling, Gordon & Co., who received the bill of lading of the cargo, and granted their acceptances for the price, which amounted to £4114 5s 8d, and which acceptances are still current. That the ship arrived at Greenock on the 12th ult., but that Stirling, Gordon & Co. had become insolvent on 10th ult., and that before or after their insolvency they had transferred the bill of lading to John Reid, jun., & Co., without value, or as security for a prior debt. That the petitioners applied for and obtained from the Sheriff of Lanarkshire an interdict against Stirling, Gordon & Co. and John Reid, jun. & Co.,

and all others concerned, from using, transferring, or dispos ing of said bill of lading, and from taking possession of said cargo. That the day before or the day after this interdict had been granted-viz., on 14th or 16th ult.-John Reid, jun. & Co. had blank endorsed the bill of lading to Walter Grieve without value, or as security for a prior debt. That the cargo was taken out of the ship on 16th ult., and warehoused in the stores of the respondents, Baine & Johnston, the Custom House books bearing the name of Baine & Johnston as the importers, but that Baine & Johnston's name hai been afterwards deleted, and Walter Grieve's name substi tuted. That in the knowledge of the above facts, and that the cargo was claimed by the petitioners as in transite, and with a view to defeat the petitioners' rights, Walter Grieve sold the cargo to the respondents, Paul, Sword & Co., and delivered to them the bill of lading either blank endorsed or a new delivery order on the storekeepers, and received from Paul, Sword & Co. a bill or promissory note for the amount; and upon these allegations, the prayer of the petition is that Baine & Johnstou be interdicted from giving, and Walter Grieve and Paul, Sword & Co. from taking, delivery of the cargo; further, that the whole respondents should be inter dicted from using, transferring, or disposing of the bill of lading, and that Walter Grieve be interdicted from using, note granted to him by Paul, Sword & Co. endorsing, transferring, or disposing of the bill or promissory

At the debate the respondents denied all knowledge of the proceedings taken by the petitioners against Stirling, Gordon & Co. and John Reid, jun., & Co. up to the time of the present petition being served, and the petitioners having caled upon Walter Grieve to state specifically what, if any, was the consideration given by him to John Reid, jun., & Co. for the bill of lading in question, and also to state whether or not be was possessed of the bill granted him by Paul, Sword, & Co. Walter Grieve stated that "the consideration given by him to John Reid, jun., & Co. for the sugars in question, was the is not possessed of the bill of exchange referred to." There purchase price thereof, being £4044 or thereby, and that be were also produced sale notes by James Richardson & Co.. who had sold the sugars on behalf of Walter Grieve, dated 22d ult., addressed to Walter Grieve and Paul, Sword & Co. respectively, a certificate of transfer in favour of Paul, Sword & Co., under the hand of Baine & Johnston's clerk, certifying that the sugars were transferred to Paul, Sword & Co. on 231 ult., and a certified extract from the books of Baine and Johnston, as warehouse keepers, showing that the goods were transferred to Paul, Sword & Co. on 22d ult. warehoused in name of Walter Grieve on 13th ult., and were

This being the state of the case, the Sheriff-Substitute could not consider himself justified in continuing the interdict, so far as it affects Paul, Sword & Co. It is not alleged in the petition that Paul, Sword & Co., when they bought the sugar in the open market, had any knowledge of the objections made Paul, Sword & Co. aver that they were in complete igno by the petitioners to Walter Grieve's title to the sugar, and conceives it to be out of the question to ask that Paul, Sword rance of any such objections. The Sheriff-Substitute therefore & Co., having bought the sugar apparently in good faith, and from a party who apparently had a complete title, and, having granted a bill for the price, should be interdicted from making the title to it stood only on a bill of lading, but when it was use of their purchase. They purchased the sugar, not while in a warehouse in name of Walter Grieve, and, finding it so warehoused, there could be no question in their mind as to whether or not the goods had completely passed from the control of the original seller; but the case is different sa regards Walter Grieve. He bought the goods from John Reid, jnn., & Co., while the only title which John Reid, jun, & Co. had to them was the bill of lading, and on the face of that bill of lading it appeared that it had been originally in favour of Stirling, Gordon & Co., who were notoriously bankrupt; and, as at present advised, the Sheriff-Substitute is of opinion, that whether Walter Grieve had bona fide paid a price to John Reid, jun., & Co. or not, he was bound to inquire whether John Reid, jun., & Co. had given value for the bill of lading when they got it, and if not, whether Stirling, Gordon & Co., the original endorsers, had paid the price of the sugars to the original sellers. The very fact of the bill of lading being in the circle passing from hand to hand, showed Walter Grieve that the goods were in transits, undelivered, and he must therefore be held to have taken them