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the purposes of the railway. The price of one part was settled by arbitration, and of the remainder by agreement between the parties; the field was conveyed to the defendants, and the defendants took possession. Upon a portion of the field they constructed, in part, the line of railway, together with a station and other works connected therewith; and upon part of the remainder of the field they deposited chalk and other spoil, which, in making. the railway, was excavated from a cutting near the field, in order to provide a place for depositing which the defendants had purchased the whole of the field, instead of only a portion thereof. After the chalk and spoil were deposited, the defendants allowed the people employed by them to occupy the portion of the field not used for the station as gardens, and for other purposes, and, in one or two instances, persons not so employed occupied parts of the field, and paid small rents in respect thereof to the station master, who received them for his own use. The land so occupied was productive to the persons who occupied it. In the year 1868, the defendants compelled the occupiers to pay rents in respect of the lands so occupied, and such rents have since been paid and received. In the same year a road was made by the side of the field by the defendants and S., by means of which S. had access to land belonging to him, and which was also useful to the defendants as forming a shorter and more commodious way to their station; and in 1869 a coal siding was extended into part of the field.
By a special Act of the year 1861, it was provided that the times limited "for the sale of superfluous lands belonging to and vested in the company within the several parishes enumerated in the schedule to this Act annexed shall be, and the same are hereby extended to the further period of seven years from the passing of this Act."
By another special Act of the year 1868, it was provided that "the company may, notwithstanding anything to the contrary in the Lands Clauses Consolidation Act, 1845, or in any Act relating to the company, &c., retain and hold any lands belonging to them in the parishes enumerated in schedule A to this Act, and which have not yet been applied to the purposes of the company, for the period of ten years after the passing of this Act," &c. The parish of B. was one of the parishes enumerated in the respective schedules to the abovementioned special Acts.
There being no prescribed period within which the defendants were bound to sell superfluous lands, the period of ten years mentioned in section 127 would apply to lands not required by them for the purposes of the railway. Held, in ejectment brought by the owner of land adjoining to recover possession of a part of this field so let out for gardens, &c., that it was land acquired by the promoters under the provisions of the Act of Parliament; that it was superfluous land which they were bound to sell and dispose of within ten years after the 30th of June 1850; that as they had not done so, it had in 1860 become the property of the plaintiff; that the special Acts of 1861 and 1868 above referred to, did not destroy his right; and that he could recover it in the action. [Note for Reference :-City of Glasgow Union Railway Co. v. Caledonian Railway Co., July 17, 1869, 7 Macph. 1072; aff. July 22, 1871, 9 Macph. H. L. 115, L. R. 2, Sc. Ap. 160; Moody v. Corbett, 34 L. J., Q.B. 166, 35 L. J., Q.B. 161, L. R. 1, Q.B. 510.]-May v. G. W. Ry. Co., 41 L. J., Q.B. 104.
CONTRACT-Liability of builder on building contract by Civil Code of Lower Canada. By the Civil Code of Lower Canada, Article 1688, it is provided that, "If a building perish in whole or part within ten years, from a defect in construction, or even from the unfavourable nature of the ground, the architect superintending the work and the builder are jointly and severally liable for the loss." Appt., a builder, entered into an agreement with the respondent, the rector of the Cathedral of Montreal, to build a new cathedral on foundations which had already been constructed by another builder. Shortly before the completion of the work the tower sank, and other damage occurred, owing to VOL. XVII. NO. CXCVI.—APRIL 1873.
the insufficiency of the foundations. Held, that inasmuch as the contract did not limit appt.'s liability to his own work, he was liable for the damage caused by the insufficiency of the foundations.-Wardle v. Bethune, 41 L. J., P. C. 1.
CARRIERS BY RAILWAY-Negligence as bailees-Dog-Contributory negligence.R. delivered a dog to a railway company for carriage on their railway. The company received it, not as common carriers, but as ordinary bailees. The dog was delivered with a collar on it, and a strap attached thereto. During the journey there was a change of trains; for security during the interval of change a servant of the company fastened the dog up by means of the strap, and the dog slipped through the collar, got on to the railway, and was killed. Held, that the company were not liable.-North Eastern Railway Co. v. Richardson, 41 L. J., C. P. 60.
WILL-Annuity-Forfeiture on Bankruptcy.-After G. had been adjudged a bankrupt by a Scotch sequestration, and before he had obtained his discharge, his wife, who had taken part in procuring the sequestration, made her will, and thereby gave an annuity to him for life, and declared, that if he should become bankrupt, or should assign, &c., the annuity should cease; and she also empowered the trustees of her will in their discretion any time to refuse or discontinue payment of the annuity to her husband. After the death of the testatrix, and before the first payment of the annuity became due, G. obtained a discharge which did not divest the property from the trustee in the sequestration. Held, rev. decision James, V.C., that the annuity was forfeited.— Trappes v. Meredith, 41 L. J., Ch. 237.
LEGACY DUTY-Foreign domicile.-Legacy duty is payable on an annuity for lives, including the testators, charged on land in the United Kingdom, and bequeathed by a person having a foreign domicile.-Chatfield v. Berchtoldt, 41 L. J., Ch. 255 (rev. decision of Bacon, V.C., ib. p. 115.)
The Scottish Law Magazine and Sheriff Court Reporter.
SHERIFF COURT OF BERWICKSHIRE.
Sheriffs PATTISON and DICKSON.
DODDS (Inspector of Poor of Gordon) v. PITT.—Jan. 25, 1873.
Poor-Aliment-Relief-Liability of Relatives for the Reimbursement of Advances for Aliment made to a Pauper by a Parochial Board.-About Whitsunday 1850, Mrs. Mary Carruthers or Pitt, was admitted to the benefit of the Poor Roll of the parish of Gordon. She continued to receive relief from the parish until Martinmas 1871. During all this period no application was made by the parish to any of her relatives for repayment of the advances so made until 21st December 1871, when Mr. Dodds, the inspector of poor, wrote to Mr. Pitt, farmer, Manderston Mill, a son of the pauper, calling upon him to reimburse the parish for all its advances, and to relieve it for the future of the maintenance of the pauper. Afterwards this action was raised against Mr. Pitt, concluding inter alia for recovery of £122 10s., being the amount of aliment advanced to his mother from Whitsunday 1850 to Martinmas 1871.
The defence was-that the defender was, prior to Martinmas 1871, never in sufficient circumstances to aliment his mother beyond what he had already done that no application had ever been made to the defender for repayment of the advances made to the pauper until 21st December, 1871; and that the pursuer was not entitled to recover the same, being barred by mora and taciturnity.
The pursuer contended that the plea of mora could not apply, as the defen
der's liability arose from a natural obligation needing no intimation, and of which he (the defender) ought not to have required to have been reminded.
The defender admitted the indelible nature of the obligation, but submitted that the defender was aware of his liability, as was proved by his having annually contributed according to his ability, towards the aliment of his.mother; and that the delay on the part of the parish for nearly twenty-two years in making any claim against him, though having ample opportunity for doing so, inferred acquiescence in his not being in circumstances to do more than he had done and an abandonment of this claim. Authorities were cited on both sides, but it appeared there is no precedent directly bearing upon the point.
After taking the case to avizandum, the S.-S. ordered proof, which having been led, the S.-S. delivered the following interlocutor and note:
Dunse, 19th October, 1872.-The S.-S., &c. Finds, 1st, that the defender's mother received parochial relief from the parish of Gordon, during the period from Whitsunday 1850 to Martinmas 1871, to the amount stated in the summons; 2d, that during all the said period no application was made to the defender to relieve the parish of his mother's support; 3d, that during the said period the defender was residing at no great distance from Gordon, and was in the habit of visiting Gordon from time to time; 4th, that the pursuer made no application to the defender, because he did not think that the defender's eircumstances were such as to enable him to aliment his mother; 5th, that from time to time during the said period, the defender gave some assistance to his mother in money and otherwise, and she was also assisted to some extent by her daughter in Eccles; 6th, that during the period from Whitsunday 1850 to Martinmas 1870, the defender's yearly income did not exceed the wage of an ordinary labourer; 7th, that at Martinmas 1870 the defender entered as tenant to Manderston Mill and farm, at a yearly rent of £450: Finds under these circumstances, that the defender is not liable to the pursuer in repayment of the aliment paid to the pauper from Whitsunday 1850 to Martimas 1870, but that the defender is liable in repayment of the aliment so paid during the year from Martinmas 1870 to Martinimas 1871; therefore decerns against the defender for the payment to the pursuer the sum of £7 16s., being the aliment paid during last-named period. Quoad ultra, assoilzies the defender from the conclusions of the summons, finds the pursuer liable in expenses; allows an account thereof to be given in, and remits the same, when lodged, to the auditor of court, to tax and report, and decerns. GEORGE DICKSON."
"Note. This is a novel claim, and the pursuer has not been able to cite any case in which arrears of parochial relief have been recovered under similar circumstances. It appears that relief was originally given in this instance, not on the application of the defender, but on that of the parish minister. No application was made to the defender at any time until 1871, to get him to relieve the parish of this aliment. The pursuer (the inspector) admits that he did not think that the defender was able to support his mother. It is quite clear that the defender made no attempt to conceal himself or his circumstances from the inspector. Had application been made to the defender in each year, it is possible that his circumstances, though limited, might have warranted the parish in exacting some part of the pauper's aliment from the defender. The parish did not make a yearly claim, but they now insist on repayment of an accumulation of twenty years' aliment. The Sheriff-Substitute thinks that such a claim is quite untenable. The defender gave some small assistance to his mother from time to time, and the course adopted by the parish warranted the defender in assuming that the Parochial Board was satisfied with the efforts he made, and that he might spend his small yearly income on that footing. Even had the defender given nothing, the right of the parish, as against him, was only a right of relief, which it was in the discretion of the parish to exercise, or to abstain from exercising. They abstained for twenty years to exercise it; the presumption of abandonment arising from delay to exercise a possible right of relief is much stronger than the presumption of abandonment arising from delay to enforce a direct claim of debt, and much more when, as here, it was at least
doubtful how far the exercise of the right could have been effectual, or rather where it is admitted that it was not exercised because it was likely to prove effectual. Besides, had the right been exercised from year to year, the defender might then have had recourse against other relatives, equally liable, but against whom his recourse may now be lost by the delay. The real ground of this action, however, evidently is the averment that the defender is now in such circumstances as to enable him to repay the advances. The Sheriff-Substitute is disposed to doubt the relevancy of this averment, and to hold that, if on the grounds just explained, the right of relief has been lost by delay to exercise it, the right cannot be revived by the accident of the defender having subsequently risen into more easy circumstances. The point of relevancy, however, was not raised, and proof was led in regard to the defender's present circumstances; the result seems to be to show that the defender is quite unable to pay such a sum as £122, 10s. Under the circumstances, therefore, the Sheriff-Substitute holds that the aliment till Martinmas 1870 cannot be now claimed from the defender, but he thinks that a distinction must be drawn with regard to the year from Martinmas 1870 to Martinmas 1871, and this for two reasons; first, because the demand having been made in 1871, the plea founded on delay does not apply to that year; and secondly, because at Martinmas 1870, the defender's position was greatly improved by his obtaining a lease of a holding at a rent of £450 per annum, the Sheriff-Substitute can give no countenance to the idea, that a man in such circumstances can be held as unable to support his mother, He is at present supporting her, and has been since Martinmas 1871. Any finding, therefore, as to his liability to do so seems both irregular and unnecessary. G. D."
The pursuer appealed. The Sheriff dismissed the appeal, and adhered, adding this
"Note.-The Sheriff agrees generally with the views expressed in the interlocutor and note of the S.-S. The Sheriff looked into the various authorities referred to at the debate, but there was nothing in them in the least degree calculated to affect the grounds of the S.-S.'s judgment. G. H. P."
Act.-Deas.-Alt.-W. A. Hunter.
SHERIFF COURT OF PERTHSHIRE.
Sheriffs TAIT and BARCLAY.
ELLIS v. M'LEISH.
Sheriff Process-Reponing Note.-A reponing note was lodged against a decree in absence in the ordinary Court. It was objected first, that the notice of the lodgment was too late, being two days after the date of lodgment; and second, that implement of the decree had taken place by arrestment, followed by a summons of forthcoming. The following interlocutors were pronounced :— Perth, 13th January 1873.-Having heard parties' procurators on the objection to the defender being reponed against the decree in absence, and made avizandum with the case and debate: Repels the objection founded in the fact set forth in the fifth article of objection; but in respect of the arrestment and consequent action of forthcoming used and raised before the presentation of the reponing note: sists procedure under said note until the issue of the said action, that it may be seen how far the pursuer thereby may obtain implement of the decree in absence. HUGH BARCLAY.
"Note.-Certainly the defender was in fault in the delay, however short, in giving notice of the lodgment of his reponing note; and had any step of diligence in the meantime been taken, he would have had himself to blame. But there is no precise statement of days in the statute, and at same time carries the same latitude as quamprimum or 'forthwith,' and admits a reasonable interpre
"The question of 'implement' is one of greater difficulty. Implement is of two kinds; voluntary by payment, and involuntary by recovery under diligence, The first, beyond all doubt, shuts out any review of a decree in absence, except by an action of reduction and repetition in the Supreme Court.
"But recovery under diligence may be entirely without the knowledge of the debtor, and it would be hard in such case to shut out all remedy or redress. Remedy there may be by suspension or reduction, but the question is, Can the Sheriff give remedy by reponing, which, in the ordinary court, has the effect of annihilating the decree as if never pronounced, and therefore destroying all farther diligence and execution following thereon, reponing or replacing the defender in the position he held before the decree was given?
"In deciding this question, it may be proper and necessary to trace somewhat the history of this branch of judicial procedure.
"Prior to the Judicature Act of 1825 (6 Geo. IV. c. 120), a Sheriff had no power to repone against a decree in absence. This could only be obtained by a bill of suspension to the Supreme Court. This bill was as matter of course refused (that is, not passed), but a remit was made to the local court to repone on payment of costs. Even after the above noted Act which first gave the power to repone, the Sheriff was barred from reponing where the extract of his decree was followed by letters of horning, and which, at that time (when the Sheriff's decreet could not be followed by imprisonment), was the general course of diligence. But the Act of Parliament of 1838, sec. 18, and relative Act of Sederunt of 1839, sec. 115, extended this right to cover the signet writ. These last mentioned Acts (which are still in observance, in so far as not affected by the Sheriff Court Act of 1853) restrict the defender's right of reponing against the decree in absence, and any letters of horning or charge following thereon' to the case, where the same shall not have been implemented in whole or in part. It is provided that, subject to these restrictions and consignation of costs, the 'Sheriff shall repone the defender, and revive the action or proceeding in which such decree had been pronounced or extracted.' The Act 1853, sec. 2, contains provisions much the same as those in the previous Act of 1838, though in the concluding part of the clause there is the appearance as if diligence was also superseded or set aside, as the Sheriff is thereby authorized to give decree for the expense of such diligence.'
"The question now is, Whether arrestment is implement of the decree? That step is inchoate until followed up by decree of forthcoming. It may attach nothing, or it may cover the whole debt, or only a part thereof. On this point the only authority is the case, 17th February 1852, Stephenson and Co., 24 Jurist 255. This decision was given under the Act 1838, and before the statute 1853. But the Act last in date made no essential difference in the rules which regulate and restrain the right of reponing. That case had reference to a poinding, and not an arrestment. There is a quasi adjudication of the poinded effects, but which is not perfected until a reported sale. It will be seen by the opinions of the judges that they distinctly viewed arrestments as in the same class. An arrestment lays a nexus on certain funds, and gives priority in diligence, all which would be destroyed, if the decree on which that step was used was annihilated by reponing. Therefore the same result as was reached in Stephenson's case in the matter of a poinding seems inevitable in that of arrestment. The pursuer is entitled to follow out his diligence by the forthcoming, and obtain implement so far as he can. The defender may have his remedy by suspension, as was sought, but not obtained, in Stephenson's case. An arrestment on the dependence as being only in security might have a different result, but one on a decree and execution is wholly of a different class. The Sheriff-Substitute has therefore sisted this reponing until the issue of the forthcoming. If nothing be recovered in that action then there is no implement. If something, but not all, is made forthcoming the decree may be opened up by reponing so far as not then implemented. B. H."
On appeal, the Sheriff (17 Feb. 1873) affirmed, with the following "Note. From the analogy of the case of Stephenson (17 February 1852, 24