traffic, were reasonable, and the rates of allow ance suggested objectionable. High Court of Justiciary. Wellwood.) The Caledonian Company maintained that the allowance made fell to be borne by the two (Before Lord Justice-Clerk and Lords Adam and companies in the usual way (i.e., in the ratio of the distance carried on the railways of either company); that they did not, therefore, refuse to make any allowance; and that the allowance actually made was reasonable. A proof was led, and on 18th July judgment was delivered. The Court dismissed the complaint of the Monkland traders against the North British Company, and the complaint of the Fife traders, in so far as directed against the Caledonian Railway Company (in this case with costs), on the ground that no such difference as was contemplated by the sections of the Acts of 1892 had arisen between the complainers and the respondents. In the first case the complainers were all under contract with the North British Company, the term of which was still unexpired; and the Court had no power and saw no reason to modify the terms of that agreement. In the second it was not established that there was a refusal to give any deduction for traffic sent north of Perth; the Caledonian had referred the complainers to the North British, and did, in fact, bear a proportion of the allowance. In the complaint of the Fife traders against the North British Company, the Court held (per Sir Frederick Peel and Lord Cobham, Lord Trayner doubting) that, as the waggon allowance was a deduction from the rate, it should increase with it, and that there should not be a limit of distance, and granted a scale of deductions in the case of inland traffic, similar to the deductions in the Monkland scale, as scheduled to the agreement of 1877, up to the charge of 2s. 8d. a ton, and as regards charges of more that 2s. 8d. increasing by d. for every 1d. of additional charge up to a charge of 4s., and byd. for every 1d. of charge beyond 4s. As regards the Fife ports' coal traffic the Court held (Lord Trayner dissenting) that the deduction should be 3d. instead of 3d. No order as to costs was made in the North British cases, these having been heard together, and additional expense not having been caused by the Monkland case. Counsel for the Traders, Guthrie, Salvesen; Agents, Drummond & Reid.-Counsel for The North British Co., Asher, Dickson, Grierson; Agents, James Watson, S.S.C.-Counsel for The Caledonian Co., Ure, Clyde; Agents, Hope, Todd & Kirk, W.S. J. F. 178. COAL MINES REGULATION ACT, 1887, SECTS. 12 (1) & 13- DEDUCTION FOR IMPROPER FILLINGMINERAL CONTRACTED TO BE GOTTEN--MINERAL GOTTEN OBLIGATION TO WEIGH.-This was an appeal by Hastie, manager of the Fairfield Colliery, against a conviction obtained against him before the Sheriff (Mark George Davidson) at Hamilton, under a complaint at the instance of Atkinson, H.M. Inspector of Mines for the Eastern District of Scotland, with not, in terms of sect. 12 of the Coal Mines Regulation Act, 1887, truly weighing the coal sent to the pit-head by four specified miners in his employment, nor paying them according to the weight of coal sent up by them respectively; and with refusing facilities to the check-weigher to ascertain the true weight of coal sent up. In this case it was proved that masters and men worked upon the footing that 10 cwt. was a full and proper load for a hutch; that the hutches were not adapted to hold more; that the whole winding plant at pit was designed on this footing; that to fill a greater weight into the hutches was attended with risk both to plant and men; that the hutches were properly weighed up to 10 cwt.; that when the weight exceeded 10 cwt. no account was taken of the excess weight, because it was agreed that the men should not be paid for such excess; that up to 10 cwt. the men were paid for everything in the hutch; that no deductions was made on account of stones or substances other than the mineral contracted to be gotten: that the agreement that they were not to be paid for the excess over 10 cwt. was well known to the men, and worked satisfactorily to all concerned; that the men desired its continuance; and that it had been very successful in preventing accidents. The Sheriff in his opinion stated that he could not hold over-loading to be improper filling in the sense of the proviso of the Act. That referred rather to an undue proportion of the stones or material other than the mineral contracted to be gotten. Even if overloading were improper filling within the Act, then there was evidence that the hutches in question might have held 12 cwt. with safety. Lord Wellwood, in delivering the leading opinion, said:-The question was whether overfilling was improper filling. The complainer in his evidence admitted, "I think a hutch is improperly filled if it contains too little or too much." Now, if overfilling be improper filling, the statute allows the owner and miners to agree as to the deduction to be allowed in respect of it. Thus the question came to be, was a deduction of anything filled into the hutch over 10 cwt. an agreement so unfair as to be illegal. He doubted if that was a question the Court could be competently asked to answer. The evidence showed the men were quite satisfied with the agreement. It was a matter of opinion on which they were quite as able to judge as the expert witnesses examined. As to its being unfair the miner could always avoid incurring the deduction by not overfilling. The only difficulty arose from the fact that the owner did not actually weigh any hutch in so far as it exceeded 10 cwt. That, however, turned upon the meaning of the words, "mineral gotten by them," in the first clause of sect. 12 (1). These did not mean the whole contents, but that part of the contents of the hutch for which the miner was to be paid, i.e., the mineral contracted to be gotten, in this case coal. The enactment meant that where the miner was to be paid by the weight of mineral contracted to be gotten by him, the mineral should be weighed when it comes up to the pit-head, and that in the absence of arrangement as to deductions under the proviso, must always be done. In the case of an arrangement as to deduction to be allowed for overfilling, the practical way of giving effect to such deduction would be to disallow or deduct payment for all the material brought up beyond what was recognised as proper filling. In this view it was unnecessary to weigh the whole contents of the hutch beyond such recognised weight. The result would be precisely the same, and it was impossible to sustain a criminal conviction merely on the ground of such a technicality as this. In any case what the appellant is charged with here is that he did not cause all the coal in the hutch to be weighed; if it had been shown that the whole contents of the hutch were coal, then that charge might have been made out; but it is evident that the hutch contained something besides coal, and there is no evidence that 10 cwt. may not have been even more than the weight of actual coal in the hutch. As to the charge under sect. 13 of not giving the check-weigher facilities in weighing, the check-weigher was appointed by the miners, and had no right to ask facilities for doing more than they required of him. a Lord Adam concurred that there was nothing illegal in the parties agreeing to deduct any weight over 10 cwt. in respect of improper filling Under sect. 13, however, his lordship held that check-weigher after appointment was entitled to facilities to keep an accurate account of the mineral gotten by the miners, and that implied weighing the whole hutch. The Lord Justice-Clerk concurred with Lord Wellwood on both points. The Court therefore quashed the conviction, with expenses in both Courts.-Appellant, HASTIE v. ATKINSON; 13th July 1894. Counsel for Appellant, Ure, Clyde; Agent, Alexander Morison, S.S.C.-Counsel for Respondent, Comrie Thomson, J. A. Reid, A.D.; Agent, John Cowan, W.S., Crown Agent. E. A. Sheriff Court. TO He 179. SALE - DELIVERY DISCONFORMITY Russian Oil Company, Bristol, raised an action in SAMPLE-OIL-DEFECTIVE VESSELS.-The Anglothe Sheriff Court at Selkirk against James Burns and William Burns, engineers, Galashiels, trading as the Waverley Mill Furnishing Company, for £40, 1s. 1d., the price of five pipes of Saxemain engine oil supplied to defenders. The defenders and that the casks were defective and leaking. pleaded that the oil was disconform to sample, After proof, the Sheriff-Substitute (Harper) gave decree against defenders, with expenses. found, in fact, (1) The defenders plead that the oil delivered to them was disconform to sample sold upon, and they produce an alleged portion of the said sample, and alleged samples of the oil delivered. (2) They plead further that the casks delivered were, in breach of contract, delivered in a seriously defective and leaky condiby them, granted to the railway company at tion. (3) The defenders, or persons authorised Galashiels receipts bearing that the casks had been received in good order and condition. (4) Error in granting the said receipts is not averred. The Sheriff found, in law, (1) The defenders have failed to prove the said alleged portion of the sample and the alleged samples of the oil delivered. (2) It is not proved that the casks were delivered in the condition alleged. (3) The receipts of the railway company are an explicit admission that the casks were delivered in good order and condition. In the course of a note to his interlocutor, the Sheriff-Substitute deals with the plea that the casks in which the oil was sent were found to be defective and leaking. He does not consider that the evidence bears out the plea, and continues:"Further, Scott signed to the railway company for three of the casks having been received in good order and condition,' and company for three of the casks having been James S. Burns signed for the other two in the same terms. It is futile for Mr Burns to say that he does not understand that in granting such a receipt to the railway company the granters do more than waive' a claim of damage against the railway. The terms of the receipt are explicit beyond question, and the signing of it is not the waiver of a claim, but an admission that no claim lies-an admission resting upon the fact that the goods delivered have been delivered OIL Co. v. WAVERLEY MILL FURNIShing Co.; in good order and condition."-ANGLO-RUSSIAN 27th June 1894. Galashiels.-Counsel for Defenders, J. J. Cook; Agent for Pursuers, Richard Lees, Solicitor, Agents, J. & D. G. Stalker, Solicitors, Galushiels. " case, be decided by him in the course of his duties in that quiet little town. This action (Forth Fishery Board v. Rev. George Clark Renton, 1872) was known as "The Yellow Fin" and was the subject of much comment at the time. Dr Albert Güntner, of the Zoological department of the British Museum, and one of the principal scientific witnesses in the case, was so impressed with the decision of the Sheriff-Substitute that he took it upon himself to write him a letter expressing his satisfaction, of which the following is an extract:-"As a scientific and therefore neutral witness in the 'Yellow Fin' case, I shall not be thought to overstep the bounds of discretion if, at its conclusion, I venture to express my admiration of your decision; of the precision with which you VOL. II.-No. 11. have distinguished between undeniable facts and questions open to discussion, and of the comprehension of mind with which you-probably previously a stranger to these scientific inquirieshave mastered the whole difficult subject." If the work at Dunblane was easy, the same cannot be said of the Sheriff's present duties. But he fulfils them with acceptation to all parties concerned; for he applies diligence, carefulness, acuteness, and knowledge of legal principles to every case that comes under his notice. He is the Senior Sheriff-Substitute of Scotland, and the Association of Sheriff Substitutes have done him the honour of making him their President. When a younger man he was fond of all kinds of outdoor sports, and while in Dunblane took much interest in the Volunteer movement, and was for many years Captain of the Dunblane Company. His kindly nature and loyalty to his friends make him popular with all. News, THE Scots Law Times will not appear again until 29th September next, after which it will be issued weekly as usual. THE subject of the portrait in next issue will be:: TIMOTHY WARREN, Esq., Writer, Glasgow. MR J. HAY ARTHUR, 81 Union Street, Aberdeen, has been admitted a law agent by the Lords of Council and Session. REPORTS. Court of Session. (Reported by PATRICK SMITH, Esq., LL.B.; EDWIN ADAM, Esq., LL.B.; R. E. M. SMITH, Esq., LL.B.; J. H. MILLAR, Esq., B.A. (Oxon.), LL.B.; C. DICK PEDDIE, Esq., LL.B.; ALASTAIR DAVIDSON, Esq., LL.B.; and J. C. S. SANDEMAN, Esq., M.A., Advocates.) FIRST DIVISION. (The LORD PRESIDENT (ROBERTSON), and Lords ADAM, M'LAREN, and KINNEAR.) 180. VALUATION-ASSESSMENT OF THE CALEDONIAN AND CRINAN CANALS-VALUATION ACT, PANY" CANAL COMMISSIONERS (Reported ante, 1854, SECTION 21-RAILWAY AND CANAL "COMVol. II., No. 113).-The Caledonian and Crinan Canals were separate undertakings, but in 1848 the Caledonian Canal Commissioners were incorporated, and the Crinan Canal was vested in them. The assessor of railways and canals valued the combined canals as one undertaking at nil, the loss on the Caledonian Canal more than extinguishing the profit on the Crinan Canal. Against this the county council of Argyleshire appealed to the Sheriff, who, sustaining the appeal, valued the Crinan Canal at £290, 19s. 6d. This action was then raised to have it declared that the two canals are one undertaking, and fall to be assessed in cumulo, as provided for by section 21 of the Valuation Act, 1854, and to have the deliverance of the Sheriff reduced. Defenders pleaded, inter alia, that the 21st section applied only to lands and heritages belonging to or leased by railway and canal companies, and pursuers were not a company. Held (reversing the judgment of Lord Stormonth Darling) that this plea fell to be repelled. The Lord Ordinary had put a limited interpretation on the word "company." even now, in the ordinary sense of the word, it and much more in 1854 when the term was used would include such a body as the commissioners, in a less limited sense than now. Looking to the purposes of the statute it was not reasonable to suppose any such artificial distinction was intended to be made. No reason for a distinction could be suggested. In interpreting a statute, ordinary words must be given their ordinary meaning, and technical words their technical meaning, but the word " company' was not a technical word.THE COMMISSIONERS OF THE CALEDONIAN CANAL v. 1. But THE COUNTY COUNCIL OF INVERNESS-SHIRE AND Counsel for Pursuers, C. S. Dickson, Wilson; 181. PARENT AND CHILD CUSTODY OF Counsel for Petitioner, Strachan; Agents, T. evidence that they were ever regular attenders at any Roman Catholic church. For two years prior to his death the father attended with regularity a Protestant mission service, frequently accompanied by the wards, who also attended the children's service. From 1888 to 1893 the wards attended, though irregularly, the board schools, except in 1891-92, when they attended, also irregularly, a Roman Catholic school. The curator, while he believed the wards' family to be Roman Catholic, was unable to find any indication that the wards were ever brought up in that faith, but was convinced that any religious instruction they ever had was from Protestant services. In the whole circumstances, he was of opinion the petition should be refused. The petitioner argued that the wish even of a minor pubes was not conclusive of the question. Though the children were well cared for where they were, they were not being brought up in the Roman Catholic religion, which was the religion of their parents and of the rest of the family. Argued for the respondent, the father showed no desire to have the children brought up as Roman Catholics. It was the desire and in the interests of the children that they should remain where they were. Authorities referred to: Re Austen, 1865, 34 L.J., Ch. 499; Hawksworth v. Hawksworth, L.R., 6 Ch. App. 539; In re Scanlan, L.R., 40 Ch. D. 200; Re Agar-Ellis, 10 Ch. D. 49; Queen v. Barnardo, L.R. 1891, 1 Q.B. 194 ; In re M'Grath, L.R. 1893, 1 Ch. 143; In re Nevin, L.R. 1891, 2 Ch. 299. The Court refused the petition. The petitioner, in his own view of the law, must make out that it would be according to the wish of the father that the children should be taken from this Home, in which they were well cared for, and sent elsewhere, solely that they might be brought up in the Roman Catholic faith. The inference naturally arising from the fact of the father being a Roman Catholic was displaced by the direct evidence of the way in which he acted with regard to the children's religious upbringing. As to the girl, there was the additional difficulty in the way of the petitioner that she, being no longer in pupillarity, distinctly preferred to remain where she was. This, taken along with the apparent preference of the father for a Protestant religion for his children, made it clear that the petition must be refused as regarded her. The latter consideration was sufficient by itself in the case of the boy, but there was the further consideration that the children desired to be together, and it was for their interests to be so. -MORRISON, Petitioner; 19th July 1894. 182. PARENT AND CHILD-CUSTODY OF ORPHAN CHILDREN NEAREST AGNATE-RELIGION OF PARENTS -(Reported ante, Vol. II., No. 67).-Petitioner is eldest brother and nearest agnate of two orphan children, twins,-a boy and a girl aged 12. They are at present residing in "Quarrier's Homes." Petitioner craved an order upon Mr Quarrier to deliver them to him. A curator ad litem was appointed to ascertain the children's wishes, and report generally upon the case. The report of the curator stated that the children were happy and well cared for in every way in the Homes and desired to remain there. The Roman Catholic Institution, where it was suggested by petitioner the children might be placed, was a suitable one. As to the religion of the parents, the curator was satisfied that they were married as Roman Catholics, and the wards were baptised by a Roman Catholic priest when they were nine years of age. Both 183. PATENT INFRINGEMENT BICYCLE TYRE parents before their death received the last rites-SIMILARITY OF DESIGN-PURPOSE AND Use.— of the Roman Catholic Church. There was no Complainers sought to interdict respondent from Counsel for Petitioner, A. J. Young, Gunn ; |