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TURNBULL AND SPEARS, PRINTERS, GEORGE STREET, EDINBURGH.

DIGEST OF DECISIONS

OF SCOTCH AND ENGLISH CASES,

1865-66.

COURT OF SESSION.

FIRST DIVISION.
Susp. and Lib., JACKSON v. SMELLIE.— Nov. 22.

Meditatio Fuga. In this case, Smellie had obtained from the Sheriff of Lanarkshire a warrant of imprisonment against Jackson as in meditatione fuge. Jackson, having been imprisoned, presented the present suspension and liberation opon two grounds :

1. That in the original petition presented to the Sheriff, Smellie only stated that Jackson was 'in meditatione fugæ, and about to leave Scotland’ without paying the debt claimed, whereby she (Smellie) will be defeated or disappointed of her claim,' and did not state that Jackson intended to leave Scotland to avoid payment of the petitioner's claim. It was argued that an intention to evade payment was of the essence of meditatio fuga.

2. That there was no proof of intended flight. The Lord Ordinary refused the note of suspension; and to-day, the Court, while holding the proof of intended flight to be extremely narrow, adhered in the whole circumstances of the case. Susp. and Int., LORD LOVAT AND OTHERS v, Tait. DITTO v.

MACKENZIE.—Nov. 23.

Fishing-Mode of Exercise of Right. These were applications for interdict at the instance of Lord Lovat and several other proprietors having right to the salmon-fishing on the rivers Ness and Beauly and Loch Ness,—the first against Archibald Tait, salmon-fisher, residing in Inverness; the second against R. G. Mackenzie, Esq. of Flowerburn, in the county of Ross. The petitioners averred that the respondents have been and still are in the habit of fishing for and taking salmon, and other fish of the salmon kinds, by means of stell nets or other fixed engines or machinery, in the estuaries of the Ness and Beanly; and on the ground that such a mode of fishing is illegal, and in contravention of the Acts regulating salmon-fishing, and injurious to the petitioners' rights of salmon-fishing, they asked that the respondents should be interdicted from continuing it.

VOL. X. NO. CIX.- JANUARY 1866.

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The respondent Tait, in his answers to the petition, averred that in fishing he employed the ordinary net and coble. One end of the rope to which the net was attached was held by a man on shore, whilst the net was paid out from the stern of the coble. During stormy weather and strong tides, a drag or weight was attached to the seaward end of the net for the purpose of keeping it in position, and the coble returned to shore with the rope. The net was not in any way fixed or made stationary, and after the return of the coble the net was drawn by means of the ropes in the usual manner.

The respondent Mackenzie, after describing the manner in which he paid out the net, averred— The net is not fastened to any stake, or fixed or permanent thing in the water, nor is the net itself kept fixed or stationary throughout the operation of fishing, though, for the purpose of steadying the net, a stone or light anchor is sometimes attached to the outward end of the net.' He also averred that stell-fishing could be practised without such a stone or anchor, in which case the net continued moving during the entire operation of fishing.

The Lord Ordinary (Barcaple) passed the notes to try the question, but refused interim interdict.

Against this interlocutor the petitioners reclaimed, but to-day the Court (Lord Deas dissenting) affirmed the Lord Ordinary's interlocutor, and refused interim interdict.

The majority of the Court thought the statements of the respondents not very satisfactory, especially those of the respondent Mackenzie, which were so vague and indistinct as almost to be reconcilable with those of the petitioner. If this had been the season for fishing, they would have been disposed, in Mackenzie's case at any rate, to grant interim interdict; but as it was inexpedient to deal with the cases differently, and there could be no salmon-fishing till February next, by which time the parties might be in a position to take their stand on their final statements, their Lordships thought it was the safer course to leave matters in statu quo, seeing that the application could be renewed when the statements of parties were made more specific.

Lord Deas was of opinion that interim interdict should be granted. He read the respondent Mackenzie's averment as in substance that his net was not fixed or stationary during the whole period of its use in fishing, and therefore that it was fixed during a part of the period. That was just an admission of the statements of the petitioners on which the application was founded, and they were therefore, he thought, entitled to interim interdict.

The respondents asked expenses, which were refused.
NAPIER v. GlasgOW AND SOUTH-WESTERN RAILWAY COMPANY. -

Nov. 25. Interdict - Railway and Canal Traffic Act, 1854. This was a petition by Mr J. R. Napier, shipowner, Glasgow, founded on the Railway and Canal Traffic Act, 1854, complaining of certain alleged undue preferences given by the Glasgow and South-Western Railway Company to the owners of the steamer • Oscar' over him as owner of another steamer called the · Lancefield,' and praying for an interdict against the company continuing these preferences. It appeared that for

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some time prior to September 1864, the petitioner was engaged in running a steam-vessel called the Lancefield,' for the carriage of goods, cattle, and passengers between Ardrossan and Belfast, in connection with trains running between Glasgow and Ardrossan, on the respondents' railway, under an arrangement with the railway company. Through tickets for passengers were issued by the respondents at through rates at Glasgow and Paisley, available for the whole journey by rail to Ardrossan, and by the steamer to Belfast, and similar tickets were issued at Belfast, or on board the steamer, to parties travelling between Belfast and those towns; the railway company's proportion of the through rates being only one-fourth of the gross fare, and being in every case lower than the local rates charged to passengers travelling between Glasgow or Paisley and Ardrossan. There was a similar arrangement for through rates of freight or carriage for goods and live stock. Mr Napier continued to run his vessel between Ardrossan and Belfast till the beginning of September 1864, as the only steam-vessel trading regularly between these ports in connection with the railway. About that time, some communications passed between him and the railway company relative to a removal of his vessel to the harbour of Troon; and the company, becoming apprehensive that he might remove his vessel from Ardrossan to that port, entered into an arrangement with the owners of another vessel called the “Oscar,' whereby they agreed to give the same facilities and advantages to the owners of that vessel as they had previously given to Mr Napier, upon their undertaking to place that vessel upon the station, and to sail it between Ardrossan and Belfast on alternate days, as Mr Napier's vessel had done. In September 1864, the 'Oscar' was put upon the station to run on the same days on which Mr Napier's vessel had been in use to run between those ports ; and upon this being done, he altered the days of sailing of bis vessel, so as to avoid sailing on the same days as those on which the “Oscar' sailed. On this being done, the same facilities were continued by the railway company to Mr Napier as he had previously enjoyed, until the beginning of October, when orders were issued by the company to discontinue those facilities; and since then they have refused to issue through tickets, or to charge through rates, but have insisted on charging local rates for all passengers and goods between Glasgow or Paisley and Ardrossan which are to proceed from that port to Belfast by Mr Napier's vessel.

The Lord Ordinary decided that in so acting the railway company placed Mr Napier at an undue disadvantage, and conferred an undue preference and advantage on the owners of the · Oscar,' in contravention of the Railway and Canal Traffic Act, 1854, and granted interdict.

The Court to-day onanimously recalled this judgment, and held that the second section of the Railway and Canal Traffic Act applied only to continuous communication by railway and canal, and did not apply to the case of a railway terminating at the sea ; and further, that the arrangement which the railway company made in this case with a particular steamer was a legal and perfectly reasonable one. Pet., JARVIE, FOR RECAL OF SEQUESTRATION.-Nov. 25.

Sequestration-Competing Petitions. Messrs R. and J. Jarvie, rope-spinners, Stobcross Street, Glasgow,

presented this petition for the recal of a sequestration granted under the petition of John Ronald and Co., John Ronald, jun., and John Templeton, merchants, Glasgow, with concurrence of a creditor, in so far as it operated as a sequestration of the estates of Ronald and Co. and John Ronald, jun. On 3d August last, Messrs Jarvie presented a petition for sequestration of these estates, with their grounds of debt and diligence showing bankruptcy; and on the same day the Lord Ordinary pronounced a deliverance, granting warrant to cite the parties, in terms of the Bankruptcy Act, to appear in Court on the seventh day after citation. That interlocutor being the first deliverance, was recorded in the Register of Inhibitions. The citation was given on 9th August, but on the 15th the bankrupts themselves presented a petition for sequestration, without giving notice to Jarvie and Co. This sequestration was granted, and it was recorded as a first deliverance in the Register of Inhibitions.

The Court were of opinion that the bankrupts were not entitled to take that proceeding, as endangering the rights already acquired by the creditors under the petition presented by Jarvie and Co. on 3d August; and they recalled the interlocutor of 15th August in hoc statu, and remitted to the Lord Ordinary, with the view of conjoining with the petition presented on 3d August, and ordering sequestration of new.

THOMS v. THOMS.—Nov. 25.

Issues - Fraud - Essential Error. The object of this action, in which Mr Jolin Thoms, Sea-View, St Andrews, was pursuer, was to reduce a general disposition and settlement, by which the deceased Mr Alexander Thoms, of Rumgally, near Cupar-Fife, left his whole property to the defender, Miss Robina Thoms, his illegitimate daughter. "Mr Alexander Thoms was infeft as heir of entail in the estate of Rumgally, a property worth about £25,000 : he was never married, and the next heir entitled to succeed under the entail was the pursuer ; but it now appears that the fetters of the entail not having been directed against the deceased as institute, he held the property at his absolute disposal. It was maintained for the defender that it passed to her under his general settlement, and she is now in possession of it, the Court having some time since refused to appoint a judicial factor. The pursuer alleged that the deceased was not aware that he held the estate in fee-simple, and only intended to convey to his daughter, the defender, the other property of which he was possessed; and he further averred that the defender and Mr Charles Welch, writer, Cupar, who prepared the settlement, fraudulently obtained that deed from Mr Thoms, on the pretence that it conveyed nothing but his personal or moveable property, which was small in comparison with the estate in question. The pursuer proposed to take three issues : 1st, Whether the general settlement was granted by the deceased under the belief that it did not convey the lands of Rumgally ; 2d, Whether it was granted under essential error ; and 3d, Whether, in so far as it imported to convey these lands, it was fraudulently impetrated from the deceased by the defender and Mr Welch, on her behalf, or by one or other of them.

The Court to-day disallowed the first two issues, but granted the third.

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