Jurist 255) relating to the effect of a poinding, the only doubt of the Sheriff is, whether the arrestment and forthcoming, although decree in the latter has not yet been pronounced, has not, as was found in the case of the poinding, already cut off the defender from his right to be reponed in the Sheriff Court. J. T."


ROBERTSON v. ISABELLA M'ARTHUR.-19th November 1872.

Master and Servant Act-Domestic Servant-At the Peterhead Court, Sheriff Comrie Thomson gave judgment in this case, the circumstances of which are disclosed in his remarks. He said :-This is a complaint under the Master and Servant Act, 1867, in which a point has arisen of some difficulty and importance. The respondent pleads that her engagement with the complainer was as a domes tic servant, and that, therefore, to her the provisions of the statute do not apply. It is quite settled by numerous decisions that the statute does not refer to menial or domestic servants. The difficulty here arises from the mixed character of this woman's service, and it is certainly not easy to determine, as matter of fact, whether she can be regarded as entirely a domestic servant, or farther, as matter of law, whether if she be partly a servant in husbandry, that fact is sufficient to bring her under the statute. The circumstances of the family in which she was engaged are these:-The farmer's wife was unable to take any active part in the management of the house. Her daughter was the housekeeper, and appears also to have acted as cook for the family, but not for the men servants. There was a female outworker, who had no housework to do whatever, and there was respt., who was engaged as the house servant. But, in addition to her house duties, she had to assist in the milking of the cows, in the feeding of the calves and pigs, and she had also to shear grass for the calves. The question is whether these latter employments justify me in holding that she was in the legal sense a servant in husbandry. I must be guided in this matter by the reported decisions of the Supreme Courts, and I am of opinion that they show that the principles upon which the question falls to be determined is that the servant is either domestic or agricultural, according as her avocations partake more of the one character or of the other. What kind of employment is predominant is the test. I shall mention what, so far as I can discover, are the three leading cases on the subject. In the case of Clark v. M'Naught, 9th March 1846, H. C. Arkley 38, it was held that a woman engaged to act as kitchen-woman and byre-woman was a servant in husbandry. In that case there was difference of opinion on the bench, but as it appeared that her managing the dairy and attending to the cows were her principal duties, the decision evidently falls within the rule I have mentioned. In an English case, ex parte Hughes (11th May 1854, 23 L. J. M. C. 138), the Court of Queen's Bench held that a woman was a servant in husbandry who had been hired as a dairymaid at a farm, and whose duties were, in addition to those of a dairymaid, to assist in the harvesting of the hay and corn, if required. She had also to keep house, and to cook for the men servants and labourers, and to make their beds; and when her master, and sometimes his family, visited the farm, which he did weekly, she cooked for and attended to them. In that case, the domestic duties were auxiliary to the agricultural. Finally, in the case of Davies v. Berwick, decided by the Queen's Bench, 23d Jan. 1861, 30 L. J. M. C. 84, a person engaged by the owner of a farm to keep the general accounts belonging to the farm, to weigh out the food for the cattle, to give a hand at any odd job when required, and generally to do what he was ordered, and make himself useful, was held not to be within the statute. On the facts of the present case, I have no hesitation in holding that the agricultural employments of respt. were subordinate or auxiliary to the domestic, and as the leading feature of the employment appears from the cases which I have mentioned to be the test

whether the statute applies or not, I must hold that this complaint cannot be sustained. I may say that it seems an unfortunate result, as the woman behaved very badly, and complr. was justified in taking proceedings against but I can only dismiss this complaint, finding no expenses due to respt. Act.-A. Robertson.Alt.-A. Fletcher.


Sheriff J. D. WILSON.


Necessity of Stamping Mandates under the New Stamp Act.-Action at the instance of Isabella Glennie, servant, Genessee, Livingston County, New York, and mandatary, against John Corbett, farmer, Broomhill, New Deer, for recovery of a debt of £10, 15s. Objected to the title of the mandatary to sue that the mandate was not stamped. The Sheriff-Substitute Dove Wilson made avizandum. On the case being again called,

The S.-S. said: This case raises an important point of practice. The pursuer of the action, being resident out of Scotland, is obliged to sue with the concurrence of a mandatary, and the question which has arisen for decision is, whether the mandate which the pursuer is thus obliged to grant requires to be stamped.

Prior to the Stamp Act of 1870, such a mandate did not require to be stamped. The General Stamp Act of 1815 imposed a stamp duty on such mandates, but that duty was repealed by the Act of 1824, which repealed all stamp duties on law proceedings. By the Act of 1870, however, both the Act which imposed the duty and the Act which took it off were repealed, and the whole matter was left to be determined by what was to be found within its four corners. Now, what the Stamp Act of 1870 contains is very distinct. Under the heading, "Letter or Power of Attorney, or Commission, Factory, Mandate, or other instrument of the nature thereof," it enumerates certain writs which do not include a mandate, such as I am now considering, but it concludes with a sweeping provision, imposing the maximum duty of 10s. on mandates, "of any kind whatsoever, not hereinbefore described." These words are so very wide, that there seems to me to be hardly any ground on which it can be argued that they do not include mandates to conduct law proceedings. All that can be said for exempting such mandates seems that it probably was not intended to include them. This is probably true. When Parliament resolved in 1824, on grounds of public expediency, to exempt all law proceedings from stamp duties, it is unlikely that they intended indirectly to re-impose a tax on them in 1870. Indeed, one can see that it is possible that quite other motives have led to the introduction of the word "mandate" in the place where it occurs in the schedules to the Act of 1870. The Act of 1815 contained in its general schedule the heading, "Letter or Power of Attorney," but it had no entry of "mandates" except in the schedules which dealt with law proceedings. After those schedules were repealed, mandates first became liable to stamp duty again, by various provisions made within the last ten years, chiefly for the purpose of imposing a penny stamp on proxies to vote at meetings. In consolidating the various Acts in 1870, the provisions concerning "Letter of Attorney," and those concerning voting proxies, were consolidated under one heading, and then to prevent any evasion of their provisions the sweeping provision I have referred to was added. At the same time, the express exemption contained in the Act of 1824 was repealed, and thus-whatever may have been intended-there seems very little room for escaping from the proposition that the only subsisting legislative enactment on this subject renders the instrument in question liable in ten shillings of stamp duty. As, however, to reach this conclusion would be to make an important change in practice, I do not propose at present to decide

the matter finally. This action is of such small amount that it will not bear the cost of transmission to the ordinary roll, but I shall sist it for three months, and in the meantime the question, now that it has been started, may be raised again in the ordinary court, and fully considered.

Act.-A. F. Wight.-Alt.-O. Prosser.





Shipping Demurrage. The Sheriff-Substitute's opinion in this case sufficiently explains the circumstances:-The owner of the ship Empress Eugenie sues the defenders for two days' demurrage. The charter-party contains the following provision:-The affreighter engages that the vessel shall be unloaded at the rate of 30 tons per day, to reckon from the time the vessel shall have arrived at the port of discharge and reported at the Custom House, and if detained during a longer period, he engages to pay for such detention at the rate of £3 per day. The circumstances are somewhat peculiar. The ship reached Peterhead, and entered the harbour, but in consequence of the very large number of herring boats with which the harbour was crowded she could not get to a discharging berth. Consequently she went on demurrage, in terms of the charter-party. The question is, whether the owner of the ship or the consignee is to be the loser? In other words, from what time are the days allowed for discharging to be computed from arrival within the harbour, or from the time when the vessel got to her berth? It seems to me to be consistent with equity, and also to be conform to the reported decisions, to hold that the time must be reckoned from the ship's arrival, and, therefore, that the consignee is liable. It is true that the rule is that the computation of time under a stipulation for demurrage begins with the arrival of the ship at the usual place of discharge in the port of destination. And it has been held that it is not enough that the ship merely entered the port, and even unloaded part of her cargo to lessen the draught of water, in order to reach the discharging berth (Brereton v. Chapman, 7 Bing. 559). On the other hand, it has been settled in a well-known case (Brown v. Johnston, 10 M. and W. 33), that the condition is satisfied by the ship entering dock, although she does not then get into a discharging berth. It seems to me the present case belongs to the same category as the last-mentioned one, and that the principle which underlies both is, that the responsibility for delay ceases to lie upon the ship when all has been done by the master that can be done in the way of navigation in order to bring his craft to a discharging berth. A natural obstacle, such as a ship grounding in a tidal harbour, would raise a somewhat different question from the present, because both the charter and the owner would be presumed to have known that the harbour to which the vessel was ordered to go was tidal, and to have had before them the contingencies which would be likely to arise from that circumstance. Here the ship was brought not only into the port of discharge, but into a position which it is not possible to distinguish from that in which she would have been had she been docked. It was no fault of the ship that she did not begin to discharge the day she entered the harbour, and as the loss occasioned by the delay must fall on one or other of the parties, it seems to me to be just that it should fall upon the charterers by whose orders it was that the vessel was taken to Peterhead at a season when a discharging berth is with difficulty to be obtained. In regard to the claim for metage, the defenders have admitted that the custom of the port is against them. There will, therefore, be decree.

Act.-Al. Robertson.—Alt.—William Alexander.




SIR SYDNEY WATERLOW early announced that he intended to signalize his reign as Lord Mayor, if possible, by the establishment in London of a Commercial Tribunal of Commerce. Like many men conversant with business, he is dissatisfied with the manner in which our Courts of Law deal with commercial cases. The complaints urged against their working are however more easily stated than remedied. They do not dispose of cases quickly or cheaply. They do not readily apprehend mercantile usages brought before them. What do ordinary Judges know about "weigh notes" or "usance bills," or the general customs of the East India, or China, or any other trade? It is their peculiar province to interpret documents; and how much liability is there to misapprehension when a reference to some usage of trade, little known out of some City lane or street, is implied in a letter or agreement? Often the Courts in England are obliged to do what merchants in Scotland do for themselves-to refer to arbitration a case involving 'points of custom and usage; that is to say, they are obliged to employ extemporized Tribunals of Commerce. The costs in trying commercial disputes are heavy, and disadvantageously contrast with the economical work done by the Tribunal of Commerce for Paris, which in one year disposed of 18,000 cases, at an average cost of fifteen shillings a-piece. It seems so pleasant to be able to go, as the people of Hamburg can, to a Tribunal of Commerce, and have transacted in a fortnight, at an expense of £50, business over which the Court of Chancery or the Court of Session, or still more the Sheriff-Court in Glasgow, would have loitered nine months, and in which, perhaps, thousands of pounds would have been expended. It may be too that the absence of any swift and economical tribunal, which deters not a few persons from going to law, even when justice is with them, lowers the tone of commercial morality. These are the charges brought against our existing Courts, and the alleged advantages of the system proposed to be substituted.



The mercantile men who are agitating for Commercial Tribunals do not however seem to have got a very clear idea of what they want. They dream of having law without lawyers, and justice without fees. They ought to know that the institutions which they set up as models to us do not countenance the possibility of realizing this hope. Of the Hamburg Tribunal of Commerce, for instance, the President and Vice-President are lawyers, and the work committed to the Paris Tribunal of Commerce has created a set of agents called agrées, who undertake the duty of preparing and conducting casesnot lawyers, indeed, but certainly not merchants, and perhaps rather too analogous to the undesirable brood of illegitimate agents who sometimes attempt to practise in our Small Debt Courts. A little reflection must show that there is a necessity for obtaining legal assistance in some shape if we are to have any commercial law at all. Is there to be any uniformity in decisions? When a bill of exchange is dishonoured, or when an agent contracts on behalf of an undisclosed principal, is one rule with respect to the right to notice of the drawer and to the liability of the latter to be observed in Bristol and another in Newcastle? And when the two parties that dispute are situated in different cities which rule is to prevail? Can men of business in their leisure hours acquire that knowledge which is necessary to preserve the uniformity of the law, and which lawyers, even at the end of a long professional life, scarcely master? And it must be remembered that the uniformity of the law means the safety of property, and makes all the difference between the reasonable certainty of a wise man's transactions and the haphazard of the mere speculator.

We have greater difficulties to meet than those encountered in applying French mercantile law. A Frenchman readily finds in the Code de Commerce a guiding principle for each question that occurs in daily business; but where is an English merchant to collect the main principles? In countless reports and text-books, the very names of which he has never heard. Sensible men of business must come to be of opinion that to exclude legal aid from a Tribunal of Commerce is to destroy that commercial law which has been slowly built up by a race of lawyers, from Mansfield to Willes or Blackburn; that it would in effect be to give to each city the power of making its own commercial code, and that instead of reform we should be introducing confusion.


Some of the foreign Tribunals of Commerce are simply ordinary Courts of Law, with skilled juries or assessors in many respects modelled on our Courts. In most civil cases juries are dispensed with as inconvenient, and experts are employed as assessors. with change of names, Continental countries really have been imitating us. They have been employing select juries under the title of Judges. It is true however that much may be learned from the action of foreign tribunals; and the demand for the establishment of similar institutions among us will be useful if it should lead to

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