Certain articles of cloth had been stolen, and was supposed to have been pawned with the pursuer. A piece of French green merino cloth was taken possession of by the officers of police to be produced in evidence at the trial of the thieves. After the trial the cloth could not be found, and the pursuer presented a petition to the Sheriff demanding delivery, or alternatively 26s as its price. The record was made up by condescendence and defences.

The petitioner pleaded

1. The respondent having obtained delivery of the merino in question for the purposes of the trial mentioned in the condescendence, and that trial being finished and no proof of ownership having been led to the satisfaction of the said magistrates, the petitioner is entitled to have

the merino re-delivered to him.

2. The respondent having without just cause refused or delayed to deliver the said merino to the petitioner, and still refusing or delaying to deliver it, the petitioner is entitled to decree as prayed for, with costs. The defender pleaded-Preliminary

1. It is incompetent to demand performance of a fact which it was known before the action was raised that the defender could not.

2. That being the leading conclusion, and being incompetent, it was incompetent to sue for a mere pecuniary conclusion, really being a claim for damages in a summary form.

3. The pursuer's claim of damages, amounting to only 26s sterling, cannot competently be sued for in the ordinary Court, or at all events the defender is entitled to his expenses of defending in the ordinary Court.

4. No statute specified by Parliamentary session, chapter, or date in the original petition, and there being at least two Glasgow Police Acts in viridi observantia, while only one was referred to in said petition, and section 175 of neither of said statutes bearing any such enactment as those libelled, the action fell to be dismissed. The record having been closed, and parties' procurators heard, the Sheriff-Substitute pronounced the following Interlocutor:

Having heard parties' procurators on the closed record, and made avizandum, Finds that the pursuer, as introductory to the conclusions of his action, has set forth in the petition that the defender, and the officers acting under him, are entitled to require, and that pawnbrokers are bound to show articles in their possession, or which they may have received in pawn or purchase; and if it shall be found that the articles so shown have been stolen or fraudulently obtained, such pawnbrokers, on being informed of the fact, are under obligation to deposit the same with the defender, in order that they may be produced in such manner as may be necessary for the ends of public justice; and the pursuer farther sets forth that the defender, or his officers, are so entitled to act, and pawnbrokers are bound so to show and deposit goods, in terms of the 175th section of the Glasgow Police Act, which in the condescendence is more specifically described as the Act 6th and 7th Vict., c. 99: Finds that the petitioner has erroneously cited the section of the Act which contains the above provisions; but finds that none of the conclusions of the action are based upon that section, or upon any of the provisions of the Police Act, and it was surplusage to cite and not essential to rely either on the one or the other in support of the petitioner's claim: Therefore repels the fourth preliminary

defence: Finds it pled by the defender that the merino in question was, before institution of this action, given up to a party from whom, he says, it had been stolen or embezzled, and that this the pursuer knew, so that in demanding restitution of said merino, the latter has acted incompetently in so shaping the leading conclusions of his action: Finds that even if the pursuer did know this, the mere delivery of the merino to another party, if improperly delivered, does not render restitution a factum imprestabile, but simply imposes on the defender the duty of recovering back the cloth, so as to fulfil the duty of restitution, if ordered: Therefore repels the first preliminary defence: Finds that an action concluding for delivery of cloth or other similar articles, and, alternatively, for payment of its value, is competent in a Summary form, and for which provision has been made also Allan v. Beveridge, 30th January, 1861, 22 Sess. in the Act of Sederunt, 10th July, 1839, sec. 138, (see Cases, 417): Therefore repels the second preliminary defence: Finds that actions with alternative conclusions for the delivery of an article, or payment of its price, is not in that form competent in the Small Debt Court: Therefore repels the third and remaining preliminary defence, and in hoc statu reserves all questions of expenses: and on the merits, Finds that the pursuer claims delivery of a piece of green merino cloth, pledged with him on 3d July, 1860, but which, on 23d January, 1861, he gave up to John Selkirk, an officer acting under the defender's order or authority, and who took possession of it as an article stolen or fraudulently obtained, to be deposited with the defender for the purpose of being used as a production at the trial of Roseann O'Neil or Taylor, who was tried by one of the Magistrates of Glasgow, on 25th January, 1861, and, on her own confession, convicted of the crime of breach of trust and embezzlement: Finds it kirk did receive said cloth, and it is not denied by the instructed by the receipt in the book No. 8-1, that Seldefender that it was taken possession of under his autho rity, and deposited with him for the purpose averred by the pursuer: Finds it alleged by the defender that the said cloth was claimed and delivered over to a party, whose name he does not state, as her property, or as der does not state by whom the cloth was delivered to the having been stolen or embezzled from her; and the defensaid unnamed claimant, nor the date, nor under what authority, nor whether upon proof of the ownership; and in respect, the defence is imperfect in these respects, appoints the defender within six days, with certification, to lodge in process or in a minute, setting forth these particulars, and thereafter directs the process to be again sent to the Sheriff-Substitute for farther disposal.

NOTE.-The Sheriff-Substitute has repelled the fourth preliminary defence, because the recital of the Police Act, or any of its sections, was quite unnecessary to the pursuer's case, and inaccuracy in such recital, where not of the essence of the action, is immaterial. The fact that the pursuer surrendered to the defender, or any of his officers acting under him, an article alleged to be necessary for the ends of justice, was and is all that was requisite to show the circumstances out of which has originated the pursuer's right to demand the article back. It rests with the defender to show grounds for justifying non-return, and a very sufficient ground it will be, if he can instruct (what he has not alleged nor pled, but which, under the order upon him, he has still opportunity of doing), that delivery was given under an order of a magistrate, after proof led, as provided by the statute before referred to.

Both parties appealed, and procurators having been heard, the Sheriff pronounced the following judgment:—

Having heard parties' procurators under their mutual appeals upon the Interlocutor appealed against and whole

them away after the trial and conviction of O'Neill per aversionem, and that since that time the cloth in question, which formed part of the embezzled articles, had never been seen: Finds that in the receipt book produced, kept by the pursuer, there is written across the receipt signed by the officer Selkirk, on the 23d January, 1861, for the piece of merino in question, the word "lost," and the pawn-ticket for the same is also produced, bearing the "No. 453, Jan. 3, 1860, owner and pledger, Ann King, High St., 8s 5d:" Finds that in the Glasgow Police stolen property book, excerpts from which are produced in process, there is entered under date 24th Jan., 1861, five yards coburg and a piece of lining, as coming from the pawn office of William Scouller, Saltmarket, and bearing to have been given up to Mary Lawrie, residing at 14 Princes Street, and signed with her mark: Finds that in the charges made against Roseann O'Neill she was inter alia charged with stealing "eight yards or thereby of coburg cloth,” and that in the police stolen property book above referred to, there is entered "a green coburg dress piece," and bearing to be given up to Roseann Cassiday, residing in East Clyde Street, as the owner or claimant: Finds it proved that the "eight yards of coburg cloth," contained in the charge against Roseann O'Neill, were put by the pursuer into the hands of Selkirk, the police officer having charge of the case, who is not now in the police establishment, and were given up by him to the witness M'Whannel, the custodier of stolen property in the police establishment, by whom the different articles were given up to the parties claiming them, who signed the receipts for the same in the stolen property book before referred to: Finds that it would appear that some confusion had taken place in the Police Office between the eight yards of merino in question in the process, and a piece of five yards of coburg given up to Mary Lawrie, and that the eight yards of merino has either been lost or given up in the confusion of the officers giving back articles to a wrong party: Finds that Mary M'Lachlan was the real owner of the merino, and as she had not got it back from the pursuer, with whom it had been pledged, she brought an action against him before the Justice of Peace Court, and got decree against him for 26s as the value thereof: Finds it proved by the pursuer that he wrote the word "lost" across the receipt in his receipt book for the merino in question after he had been told at the Police Office that the merino had been claimed and given up at the Police Office: Finds it proved that the merino cloth in question was delivered up at the Police Office to some wrong party, and that without any written order or authority by the magistrate who tried the case, as required by the Police Act: Finds, in point of law, that the officer Selkirk, and the other officers in the police establishment, who gave up the merino in question to a wrong party without any written order or authority of the magistrate who tried the case, having been in the employment of the police establishment under the defender, and whose orders they were bound to obey, he (the defender) is responsible for their acts, both under the Glasgow Police Act and at common law, therefore adheres to the Interlocutor under review, and in respect it is now admitted that the merino in question has either been lost or given up to a wrong party, so that the order to deliver it up has become a factum imprestabile, decerns against the defender in terms of the alternative conclusion of the petition, and finds the pursuer entitled to expenses, to be taxed on the lowest scale for the Ordinary Court, and remits the account thereof when lodged to the auditor to tax, and decerns.

NOTE. This is rather a hard case for the defender, as Superintendent of the Glasgow police, who, by the result of it, is made responsible for the consequences of some confusion on the part of some of his subordinate officers, in allowing the piece of merino in question to be taken away by the wrong party, although he himself personally had apparently nothing whatever to do with the matter, and the article had only been intromitted with officially by his subordinates in office. The mistake, too, was one which was extremely likely to occur in an office where such an immense quantity of stolen articles pass daily, as in the Police Office of Glasgow. But still, as the pursuer was compelled to pay the value of the article to the true owner of it by the judgment of the Justice of Peace Court, he is fully entitled, if he can, to seek indemnity from any party who may be legally liable.

The officer Selkirk, who was the active party in fault, is not now in the Glasgow Police, and is said to have gone to America. There can be no doubt that the defender, as the head of the police and the party who, under the Police Act, appoints all

the subordinate officers, must be held legally responsible for any losses which may occur through the fault or omissions of any of the officers in the establishment of which he is the head. In addition to this, there are two particulars in which the conduct of the defender, after he was personally brought into contact with the matter, which appear to substantiate the pursuer's claim against him. In the first place, there appears to have been a certain amount of laxity pursued in the Police Office in the mode in which goods, alleged to have been stolen, and which have come into the hands of the police, are given back to the owners or allowed to be taken away by them. This appears not to be done by a warrant or order from the sitting magistrate who tries the case, as required by the Police Act, nor even by a written order from any party what ever. It appears that the claimants for stolen goods are just taken into a room adjoining the Court Hall, where the stolen goods are lying together on a table, and each is desired to pick out his or her own property, and to take them away. There is no doubt that this method is calculated to shorten matters and expedite business, but it is very likely to be attended with the risk of delivering up articles to wrong parties, particularly considering the unscrupulous characters who sometimes are claimants for goods on such occasions. In the next place, when the present action was brought in this Court, concluding for delivery of the merino or its value, as ascertained to be only 26s, the defender not only did not admit or consign anything, but averred on record that the article had been given up to the true owner, after the trial, in common form. Had he consigned the money, which was so trifling, in limine, the Sheriff would at once not only have not found him liable in, but entitled to, expenses; at least subsequent to the consignation if the litigation went on. Instead of doing this, he persisted in the allegation of the cloth having been delivered up to the true owner, and joined issue with the pursuer in proof on the point. So far from establishing that the merino had been given up to the true owner, the proof clearly shows that it had been given up by the police to some wrong party, and that circumstance also renders the defender liable in expenses. Had the case been one for the value of the article, or damages only, the Small Debt Court would have been the proper form for it, but as the case was one, perhaps unavoidably, for delivery of the article or damages, to meet the alternative of the article casting up after all, it became necessary to bring the action in the ordinary Summary Court. Act. JAMES GALBRAITH.

26TH JULY, 1864.

Alt. J. L. LANG.

SHERIFF COURT, PERTHSHIRE-PERTH. (SHERIFFS GORDON AND BARCLAY.)

NAPIER v. ROBERTSON.

Master and servant-Proof-Parole-Presumption.-A farm-servant sued his master for wages. The master, in defence, stated that he had payed a sum upwards of £13, had taken no receipt, but offered to prove payment by parole. Objected, that parole proof could not be admitted in payment of a sum above £8 6s 8d. Circumstances in which a proof by parole before answer was allowed by the Sheriff-Substitute, and adhered to on appeal by the Sheriff.

THE pursuer, a farm-servant, on 5th December last instituted an action against the defender, his former master, for £15 10s, as wages from March to Martinmas last (old style), under deduction of 30s received to account. In defence, it was stated, that the agreed on wages were £15 only. The pursuer's wages were arrested in the defender's hands; but, on 27th November last, after the arrestment had been loosed, and the defender had been informed that he was in safety to pay

as the Procurators of Hamilton have no charter, and the qualifications for practitioners before Sheriff Courts are fixed by Act of Sederunt, the Court is not entitled, at the request of the said society, or any other body, to load the right to admission with additional burdens not mentioned in the Act: Therefore recalls the order for consignation in the SheriffSubstitute's Interlocutor, and finds that the petitioner has right to be admitted as a procurator before the Sheriff Court at Hamilton without any other qualification than he already possesses, and remits to the Sheriff-Substitute to admit him accordingly on his taking the oath de fidele administratione officii in common form: but Finds that the petitioner is not entitled to the use of the library of the respondents' society, or to any of its other privileges, without entering the society and paying the deposit required by the rules thereof: Finds no expenses due to or by either party under this discussion, and decerns.

NOTE.-The case of Dinning (founded on by the respondents at the debate), 27th May, 1817, applied to the Faculty of Procurators in Glasgow, "whose rights were established by inveterate usage and Royal Charter, and as such, had the right of passing bye-laws, if not inconsistent with the State." That case, therefore, has no application to the Procurators of Hamilton, who, however respectable and growing in numbers and talent, have not as yet either a Royal Charter or immemorial usage to rest upon. Considering them as a mere voluntary society or association, the Sheriff cannot hold that they are at liberty or have any right to object to or exclude parties from practising as practitioners before the Hamilton Court, who are qualified under the Act of Sederunt, unless they conform to certain bye-laws and regulations passed by themselves, imposing a certain money payment for an object in itself certainly very beneficial and laudable, but apparently ultra vires of the society to impose on persons not asking to become members of the society, and who are qualified under the Act of Sederunt for being admitted procurators before the Court; but it is a different thing to say that it can lay down a regulation declaring that no one shall be admitted to practise before it, though qualified in terms of law, unless he pays down a certain sum for the Hamilton library. Unquestionably the procurator not conforming or entering the society, can have no right to the use of the library, which is privative to the subscribers, and it is to be hoped the obvious advantage of such a store of reference will induce stranger procurators who may be admitted to practise before the Court to concede voluntarily what they are not bound to, and the Court has no power to compel them to give, as a matter of obligation. Act. PARTY.

29TH JULY, 1864.

Alt. GEBBIE.

HAY the pursuer and Athya & Co. are grain merchants in Glasgow, and Ritchie & Co. are storekeepers. Athya & Co. had large quantities of wheat stored with Ritchie. Athya & Co. sold two large lots of wheat to Bertram of Newcastle, a grain merchant. Bertram sub-sold 300 quarters to Hay the pursuer, for which Hay granted his acceptance. The other circumstances of the case are fully explained by the Interlocutors of the Sheriffs:

Having again heard parties' procurators, and resumed con sideration of the proof, productions, and whole process, Finds it admitted by the defenders, Athya & Co., and instructed by the invoice, No. 13/1, that, on 15th July, 1861, they sold to Mr Alexander Bertram, of Newcastle, two large lots of American wheat: Finds that, as the price of a portion of said wheat, the defenders took from Bertram the acceptances Nos. 13/2 and 13/3, amounting together to the sum of £850, and both payable in London on 21st August, 1861: Finds that at the time of the sale the wheat lay in the stores of the other defenders, Hugh Ritchie & Co., in name of the defenders Athya & Co., and continued to lie in their name after the sale: Finds that on the 15th August, 1861, Bertram wrote to the pursuer the letter No. 12/3, in which he says,—“ I had a telegram from Messrs Athya & Co. that you wished two or three hundred bolls of the best lot of amber [wheat]. I replied that they were to deliver you 300 bolls. Mr Athya said in his last letter he had sold similar, so have booked you 300 bolls, at 24s 9d, and will pass draft for the amount, as they will require needful. Of course, if the price is too much, I expect to hear from you, and will make it right:" Finds that on the 17th August, the pursuer acknowledged receipt of said letter by his two letters of that date produced respectively, with the reports of commission, Nos. 22 and 24, one of which letters appears to have been sent per incuriam, being substantially a duplicate of the other: the 300 bolls, but only at the price of 23s 6d, instead of 24s Finds that, in his said answers, the pursuer agreed to take 9d per boll: Finds that in the meantime, and before receiv ing the pursuer's answers, Bertram, on the 15th August, drew upon the pursuer the bill, No. 21/1, for £371 5s, being the price of the 300 bolls at 24s 9d per boll, and sent it to Glasgow for acceptance through his banker in Newcastle: Finds that the pursuer, soon after receiving said bill, accepted it, but only for £334, being the price of the 300 bolls at 238 6d per boll, less a small balance owing by Bertram to the pursuer, and the said acceptance was sent back to Newcastle through the Glasgow branch of the National Bank of Scotland, on the 20th August: Finds that Bertram returned no answer to the pursuer's letters of the 17th August, and received, without objection, the restricted acceptance, and must therefore be held to have acquiesced in the terms on which the pursuer agreed to take the 300 bolls: Finds that on the 21st August the pursuer received from the defenders, Athya & Co., the delivery order No. 13/8 on the defenders, Ritchie & Co., for 300 bolls of the wheat which Athya & Co. had, on the 15th July preceding, sold to Bertram, and the pursuer intimated and presented the said order at the defenders, Ritchie & Co.'s, store on the 22d August: Finds that they accepted the said intimation, and on the following day delivered to the pursuer, in virtue of the said order, 48 bolls of the wheat therein specified: Finds that after said delivery had taken place, there was handed, also on the 23d August, to said defenders, Ritchie & Co., the countermand No. 13/9 by Athya & Co. of the delivery order of the 21st August, and Ritchie & Co., who had not transferred the wheat in their books to the pursuer's name, gave effect to the countermand, and refused to make any further delivery to said pursuer: Finds that the reason why Athya & Co. countermanded delivery was that they received from Bertram on the said 23d August the letter No. 13/5, bearing date "Newcastle, August 22d," and intimating that he was unable to take up Athya & Co.'s bills due Finds that in this state of the facts the question at issue in on the 21st, and had resolved to call a meeting of his creditors: this process is, whether the said defenders, Athya & Co., were entitled to countermand and retract their delivery order two days after granting it, and after it had been par

tially implemented, or whether, whatever right of stoppage in transitu they might have had against the original purchaser, Bertram, they had any such right against the pursuer,