casing, as he could have done, no vibration would have been communicated to the casing or the beam: Therefore, and under reference to the annexed Note, sustains the defences, and assoilzies the defenders, but in the whole circumstances finds no expenses due and decerns.

NOTE. The first thing to be adverted to in judging of the evidence in this case is the business relationship in which the pursuer and defender stood to each other. The pursuer was a contractor for the moulding of pipes, and as such had made pipes for the defenders in the same pit for sixteen years. It was the defenders' duty to furnish the pit, the moulding boxes, and other necessary implements; but the pursuer had the sole control of the operations; he hired and paid his own men, and they took their instructions from him. It was in particular the pursuer's duty to set up the moulding boxes with an inclination outwards, so that there might be no chance of their falling inwards, and also to guard against too great an accumulation of sand in the pit, seeing that the shallower the pit, the less firmly the boxes would stand. The pit was occasionally divided into two compartments by a wooden beam stretched across the centre, and when that was done one set of the boxes was made to rest against the beam. The boxes were 19 feet long and 11 inches broad, by 3 thick. Their breadth at the top was 14 inches, and at the bottom 12 inches, so that they had a tendency to be top-heavy. No attempt has been made to show that the boxes were improperly constructed, or defective in any respect. The beam which stretched across the pit was about 20 feet long, and was 18 inches deep by 9 broad. The pit had been dug to a depth of about four feet, but in consequence of the accumulation of sand in it the beam was not more than three feet above the bottom of the boxes which rested on the sand in the pit. It was argued for the pursuer that the defenders should have dug the pit deeper. But the pursuer himself admits in his deposition as a witness that he "never complained to the defenders or their foreman of the depth of the pit;" and he worked in it regularly from the time it was made. On the other hand, the pursuer admits that it was his duty to prevent too much loose sand getting into the pit, and it is distinctly proved that the pursuer had neglected this, though he was frequently warned that the over quantity of sand in the pit made it too shallow, and thereby caused the centre of gravity of the boxes to be thrown too much above the beam on which they rested. The part of the pursuer's case on which he mainly relies is, that instead of an open side where the beam was, the pit should have had a solid side there dug in the earth like the other three sides; and that it was not proper to furnish nothing but a beam for the boxes to lean against. But the beam had been in use more or less for two years without any objection on the part of the pursuer; and if it is not shown to have been the cause of the accident, it is irrelevant to inquire whether a solid side would have been better. The beam was securely fixed at both ends with a wooden casing which went all round the pit on the ground level. Tressles or barrels were placed in this wooden casing on either side of the pit, which was about 13 feet broad, and the pursuer and his men stood on planks resting on these tressles or barrels when they were engaged in pouring in the molten metal into the moulding boxes. The plan No. 5 affords a correct idea of the whole arrangements. The pursuer's theory of the cause of the accident is given in his own words as follows:-"The boxes were not fastened to the beam, but lay against it. The said wooden casing went all round the pit, and the barrels which supported the plank on which we stood also rested on the wooden casing. Our weight in walking on the plank caused the wooden casing to shake, and its shaking was communicated to the said beam, which had no centre supports to steady it, and the motion of the beam working on the boxes threw them inwards." But, in the first place, if this be a correct theory, how did it happen that the same accident never occurred from the same cause before? It is in evidence that the boxes had once before, and only once, fallen inwards, but this happened "at the dinner hour, when there was nobody at the pit," so that there can have been no vibration then. In the next place, the pursuer depones that on the day of the accident the bottom of each of the boxes that fell was placed six inches to the east of the line of the beam on which they rested, which, taking into view the length of the boxes, would have given them an inclination outwards, and off the perpendicular, of 16 inches at the top. With such an inclination, the pursuer's own witness, Mr James Clink

skill, consulting engineer, depones that he considers it impossible that the boxes could have been thrown inwards by any vibration of the beam. In this he is corroborated by other skilled witnesses, who are also of opinion that even with a considerably less inclination outwards no motion of the beam acting upon the boxes at only about three feet from their lower end would have had the effect of throwing them inwards. Mr Clinkskill says:-"I think the boxes must have been very perpendicular before any vibration of the beam on the west side could have thrown them inwards. The pouring in of the metal would make the boxes top-heavy, and more apt to topple over." The defence accordingly on this part of the case is, that the pit being "in the same condition at the time of the accident as it had been for nine or ten years, and the system of moulding being the same," the beam had nothing to do with said accident, and that it was occasioned solely by the pursuer's neglect to slant the boxes properly. This is the opinion of the two foremen, Hugh M'Lean and Edward Moir, of David Brownlie and James Smith, engineers, and substantially of Mr Clinkskill. These and other witnesses also negative the fact, that there could have been any vibration of any moment in the beam, considering its strength, dimensions, and span; and the contrary evidence that there was vibration is more hypothetical than positive. Neither the pursuer nor any of his witnesses says that he saw vibration in the beam. The case therefore fails upon the proof from uncertainty.

But in the next place, suppose it had been shown beyond doubt that it was the shaking of the beam that threw down the boxes, the question would remain, were the defenders responsible for that shaking? It has been distinctly estab lished that they were not, and that it was caused unneces sarily by the pursuer himself. The pursuer's assertion is, that the vibration was communicated from the planks to the wooden casing, and from it to the beam. Now, the pursuer had the sole control of the placing of the tressles or barrels on which the planks rested for the pursuer and his men to stand on. If, therefore, the tressles or barrels had not been placed on the casing, but on the solid ground outside of it, the casing must have remained perfectly motionless. The witness, Hugh M'Lean, adduced by the pursuer, depones-"The plank on which the pursuer stood was 18 or 19 feet long; this was long enough to allow the tressles on which the plank rested to stand on the ground outside the casing." The same thing is deponed to by the witness, David Brownlie, and is, indeed, not denied by the pursuer, whose excuse only is, that the plank had less spring by keeping the tressles a little nearer each other. But he has not attempted to show that the operations could not have been done on the plank though the tressles had been placed on the solid ground. It thus be comes an unanswerable plea for the defender, that if the vibration of the beam threw down the boxes, that vibration was needlessly and incautiously caused by the pursuer himself. Even if this only created a case of faults on both sides, or showed that the pursuer partly contributed to the accident, his claim to damages would be extinguished. The rule of law in such circumstances was stated by the Lord JusticeClerk in M'Naughton, 17th December, 1858, in these words: "Where an event is brought about directly by the culpa of two persons, whether joint or several, where the culpa of each has contributed to produce the event, and the event would not have been produced but for the culpa of both, there can be no claim as between these persons for reparation of injury flowing from that event."

A subsidiary ground of action was attempted to be introduced at the debate, viz., that the pursuer should have been furnished with two planks to stand upon, instead of one, on the day of the accident, and that had there been two, the falling boxes would have been sooner caught, and the pursuer would not have been so much crushed up between them as he was. But, in the first place, no such ground of action is set forth in the summons, which is exclusively rested on the averment that the injuries were sustained through the insufficient state of the pit, or of the boxes themselves. In the second place, according to the pursuer's own deposition, the falling boxes forced him and the other men to let go the ladle in which the molten metal was, and which then came down on the pursuer's person and burned him; and it is plain that this would have equally happened whatever number of planks the pursuer had been standing on. In the third place, it is not proved that, even as regards coming in contact with the fall

ing boxes, two planks would have made the pursuer's position safer than one, for it is in evidence that the plank was not fastened to the barrels on which it rested, but was pushed aside by the falling boxes; and the pursuer's witness, Clinkskill, admits, what is indeed self-evident, that two loose planks would have been pushed aside by the boxes as readily as one. In the last place, the defenders' foremen say, that although the pursuer broke a great deal of wood, they always furnished to him as much as he required; and if, as a skilled workman, the pursuer thought it not safe to proceed on the day in ques tion with one plank, it was his duty to have declined to do so till a second one was supplied. In the English case of Alsop, 27th Law Jour., Exch., p. 159, effect was given to the employer's defence of non-liability, in respect that the servant, after seeing the risk, voluntarily continued at the work. The same law was emphatically laid down in the Scotch case of M'Neil, 7th July, 1853, the rubric of which bears that a "master is not liable if his workmen proceed in a hazardous operation in face of a seen danger."

On the whole, then, a careful consideration of all the circumstances of this somewhat peculiar case lead to the conclusion that no damages are due by the defenders, 1st, because it is just as likely that the moulding boxes fell from being incautiously set up as from any mal-construction of the pit; 2d, because if the beam was a hazardous support for the boxes, it was the pursuer himself who made it so, and brought down the danger upon himself by conducting his operations in such a way as to cause a vibration, which would have been entirely avoided by a slight change in the position of his tressles; and, 3d, because a servant, and, a fortiori, a contractor, is held to undertake the ordinary risks of his employment, and if he sees extraordinary risks, and continues to work in the face of them, must do so on his own responsibility.

This Interlocutor was appealed, and after a hearing the Sheriff pronounced the following judgment:-

Glasgow, 30th May, 1864.-Having heard parties' procurators, under the pursuer's appeal, upon the Interlocutor appealed against, and made avizandum, and considered the proof adduced and whole process, Adheres to the said Interlocutor for the reasons stated by the Sheriff-Substitute, as also those in the following Note, and dismisses the appeal.

NOTE.-The Sheriff has adhered to the Interlocutor under review with much regret, not only on account of the grievous and irreparable injury which the pursuer has sustained, but because the judgment which both the Sheriff-Substitute and the Sheriff have been constrained to pronounce in the case by the force of the decisions of the Supreme Court does not appear to him to meet the justice of the case in so satisfactory a way as could be wished. It is perfectly evident that the terrible catastrophe which occured to the pursuer here, and which, it is to be feared, has irreparably lamed him for life, was produced by faults on both sides. The SheriffSubstitute has very distinctly summed up, in his Note, the errors, on the part of the pursuer, which led to the calamity. It is evident that he had been to a certain degree negligent in not putting the iron boxes containing, or intended to contain, the melted iron with a sufficient inclination outwards, and that if this had been done, the fall of the boxes with the liquid metal in them, which led to the molten metal falling upon the pursuer, would not have taken place. On the other hand, it is equally clear that the defenders had been also in some degree to blame for not having taken proper precautions to prevent any tremulous motion being communicated to the huge vessels containing this highly dangerous substance. Their error in this respect consisted in this:-They did not furnish the pursuer with proper tressles to support the plank on which he walked when conveying the melted iron to the boxes, but left him nothing to support it but some old barrels, which was the more reprehensible, as the plank itself was forty feet long, and of course would be subject to very considerable vibration. Farther, there was only one plank furnished, whereas there should have been two, which would have greatly lessened the vibration. Lastly, what was most careless of all, they allowed the plank, which had thus been caused to vibrate by the pursuer's going along it, to communicate with the wooden frame or beam which formed the

entire one side of the pit in which the dangerous operation was going on, and against which the iron boxes containing the liquid metal rested. The consequence was, that the vibration produced by the pursuer walking on the plank communicated itself to the wooden frame, and it was the shaking, coupled with the iron boxes having been put down without a sufficient leaning outwards which caused them to upset, and in the concussion sprinkled the molten iron over the pursuer. Thus the catastrophe appears to have been produced by the faults on both sides; for if either the pursuer had given a sufficient cast outwards to the iron boxes, or if the defenders had furnished the pursuer with such tressles and planks and earth or brick side to the pit on which they were resting, there would have been no vibration at all; or if there was it would not have been sufficient to upset the boxes. It appeared to the Sheriff, at first, very extraordinary how iron vessels, weighing from a ton to a ton and a half each, could be upset by so trifling an impulse as that communicated by the vibra tion of a plank by a footstep going along it. But this is sufficiently explained when it is recollected that if a heavy substance, much more weighty than any of these boxes, is equally poised, or nearly so, a very slight impulse will be suffi cient to overturn it, and that even the push of an infant's hand has been found, in such circumstances, to produce that effect. There being thus clearly faults on both sides in the production of this catastrophe, if it were still an open point, the Sheriff would not have had the least difficulty in decerning at once against the defenders for modified damages. would have done so on the principle that to do otherwise would be to throw on the one party the whole damages arising from culpability in which two were implicated. The effect of this is that both parties suffer for their respective faults-the one by being found liable in modified damages, the other by having those damages modified instead of being decerned for to the full amount. But it belongs to an inferior Court to follow, not to make the law, and the principle that where two parties are in fault in producing a wrong, neither can recover, has been too strongly transplanted into our law from the decisions of the House of Peers and Court of Session to admit of an opposite decision being pronounced in this Court. Alt. ARTHUR ALISON.

Act. JOHN ROBERTSON.

He

Error in citation-Improbation of execution.-Held (1) that where the citation on a summons bore that it was given on the 11th July, the summons being dated the 11th August, the error was fatal; and (2) that improbation of the execution on this ground is competent in the Sheriff Court.

THIS was an action of damages at the instance of Samuel Wallace against Alexander Lochead, the summons in which was dated 11th August, 1863, and was served on the defender on that day. The officer's citation was in the form printed on p. 299 of Soutar's styles, omitting the clauses at the commencement between the words "before designed," and "you are lawfully summoned." The citation stated that it was done on "the 11th day of July, 1863.”

The defender pleaded—(1) that the citation was inept, not being in the form prescribed by the Act of Sederunt, 8th July, 1831; (2) that it was inept, as bearing to be given on 11th July, a month before the date of the summons; and (3) that he was entitled to improbate

weight of authority is in favour of the competency of disproving the execution by way of exception in Sheriff Courts. Being of opinion, therefore, that the execution in question is challengeable on the ground alleged, and that the challenge is competent in this process, the above remit has been made that the requisite inquiry may proceed in terms of the Act of Sederunt.

The grounds on which the Sheriff has come to the conclusion that the execution is ex facie regular, and that the first statement in the defences is not relevant, are given at length in the Sheriff's Interlocutor of this date, in the action at the instance of Alexander Douglas against the same defender, and need not be here repeated.

Alexander Lochead, defender, by leaving for him, in the hands of a female servant within his dwelling-place, a full, double," etc. The citation on the service copy was in the form mentioned in the report of the action against the same defender at the instance of Wallace. The defender pleaded (1) That the citation was null, not being in the form required by the Act of Sederunt of 8th July, 1831, which, it was maintained, was still imperative under the sanction of nullity; opinions of judges in Stewart v. Macdonald, 1860; Izatt v. Robertson, 1840; (2) That the execution was null, in respect neither it nor the summons set forth the place of the defender's dwelling where the copy summons was left, it being maintained that the designation specified only his occupation and place of business. The pursuer answered (1) That the citation was in correct form, being that given in Soutar's Styles, p. 299, and was in accordance with the new form of will; and (2) that the designation sufficiently set forth or implied the defender's dwellingplace.

The Sheriff-Substitute (Robison) pronounced an Interlocutor in the same terms as that given in the report of Wallace v. Lochead. On appeal, the Sheriff (Campbell) pronounced the following Interlocutor:

Edinburgh, 9th June, 1864.-The Sheriff having, upon the appeal for the defender from the Interlocutor of 24th March last, considered the closed record and whole process, alters the said Interlocutor in so far as it states that the preliminary defence is founded entirely on the alleged irregularity of the service of citation, the word "entirely" being too restrictive: quoad ultra adheres to the said Interlocutor, and dismisses the appeal.

NOTE. The Sheriff, after careful consideration of the authorities cited in support of the preliminary defence, is unable to hold that either the execution or citation is bad.

One of the defender's objections is that it is not stated in the execution where the defender's dwelling-place, at which he

was cited, is. The Sheriff has no difficulty about this at all. In the body of the summons the defender is designated as "tavern keeper, Vulcan Tavern," etc. The two first words indicate clearly enough his calling, the last two his residence, and the locality of that residence is sufficiently described. Now, the execution being written on the same sheet with the summons, it was quite unnecessary to repeat the frame and description of his dwelling-place. None of the authorities quoted go the length of requiring the repetition in such circumstances.

With the defender's view as to what is required to be the contents of the citation the Sheriff cannot agree. It is stated in the "Styles of Writs in the Sheriff and Commissary Courts of Scotland," revised by Dr Barclay, that there is no statutory form for citation; but that the form therein given is generally in use. Now the form given is quite different from that insisted upon by the defender, and, so far as the Sheriff can learn, the latter form is not generally followed in practice. Act. JOHN ROBERTSON, Alt. C. B. ROWAN.

8TH JUNE, 1864.

SHERIFF COURT OF

ELGINSHIRE. (SHERIFFS B. R. BELL AND D. MACLEOD SMITH.) ELIZABETH HARDIE OR COOK and Curator ad litem, v. JAMES COOK.

Husband and Wife-Aliment—Separation and Aliment

-Jurisdiction.-Held that an action raised in the Sheriff Court, during the sitting of the Court of Session, by a wife against her husband, setting forth that she had been obliged to leave him on account of cruelty, and concluding for interim aliment "until a permanent arrangement of the rights and interests of parties shall be made by a competent Court," is incompetent. THE point of law raised in the case appears sufficiently from the Note subjoined to the Sheriff-Substitute's Interlocutor. The Interlocutor and Note are as follow:

Elgin, 11th April, 1864.-The Sheriff Substitute, having considered the closed record and cause, Finds that, in the circumstances, the action is incompetent; Therefore dismisses the same: Finds no expenses due to either party, and decerns.

NOTE. The present action is one for interim aliment, at the instance of a wife against her husband. It proceeds upon the allegation that she has been obliged to leave him on the ground of cruelty, and concludes for interim aliment, at a certain specified rate, from and after 1st August, 1863, until he shall "provide her with suitable aliment, or until a permanent arrangement of the rights and interests of parties shall be made by a competent Court."

The only competent Court by which such permanent arrangement can be made is the Court of Session; and that Court has not only the exclusive power to make such permanent arrangement, but it has also power, immediately on an action being brought before it, to make such interim arrangement, or award of aliment and expenses, as may be required to promote the ends of justice.

opinion on the point-that it may be within the province of It is possible-though the Sheriff-Substitute offers no the Sheriff Court (which is not a competent Court by which the footing of separation, can be awarded), at a time when a decree of separation, or a decree for permanent aliment on relief from the Court of Session may be inaccessible, as for instance in the beginning of the long vacation, and in a case of present destitution in which the facts are clear, to provide interim aliment under the summary procedure which, in the Sheriff Court, is always available in cases of aliment, until the next sitting of the Court of Session. But a claim made in the Sheriff Court for interim aliment until an action can be raised in the Court of Session, at a time when the Court of Session

is itself sitting, and when an action can be introduced into it at any time, has really no meaning. There is no intelligible terminus ad quem. In the present case, the summons having been called in Court on 16th November, 1863, the Court of Session was just as available as the Sheriff Court, and there was therefore no occasion and no room for any interim action in the Sheriff Court, or for any interim award of aliment under such action. No other necessity for an action in the Sheriff Court is relevantly set forth, and as the competency of such an action depends entirely on its necessity, the present action cannot be entertained.

The Sheriff-Substitute has made these remarks with regard to the claim by the pursuer for interim aliment, as applicable to the period from the date libelled in the action in the Sheriff Court, until the date of raising the proposed action of separation and aliment in the Supreme Court The pursuer con tends, however, that the Sheriff can not only award her aliment prior to the raising of such action- in the Supreme Court, but that he can also do so so as to have effect during its dependence, and until its determination-that is to say, that the Sheriff, in the knowledge that the matter of aliment must necessarily form part of the merits of a separate action before a higher Court, is to take upon himself to dispose of it beforehand in this Court. This is so plainly incompetent that no farther observation upon the point appears to be

necessary.

The alternative conclusion of the summons, that the Sheriff shall award interim aliment until the defender shall provide the pursuer with suitable aliment, is virtually, in so far as it is expressed in operative language, not a conclusion for interim aliment at all, but for permanent aliment, and is, therefore, equally incompetent in this Court.

It will be observed that although the present action was called in the Sheriff Court so long ago as 16th November last, no action in the Supreme Court has yet been raised.

Of course between husband and wife there cannot, hoc statu, in regard to an action at the instance of the latter which has been dismissed, be any case for expenses.

14TH JUNE, 1864.

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

Gow's EXECUTORS v. SIM.

Loan-Bankrupt.—In an action for payment of a sum alleged to have been advanced in loan by a party deceased, founding on a bank draft made specially payable to the alleged borrower, and endorsed by him-Held, that the draft did not of itself prove a loan-but proof allowed by writ or oath.

THIS was an action by the executors of a person deceased to recover £200, being cash advanced in loan by the deceased to the defender. The pursuers supported their claim by an order by the deceased on his bank account, made specially payable to the defender, and endorsed by him, with the corroboration that on the same day the defender paid an equal sum to his landlord as rent. The following Interlocutors were pronounced:

Perth, 26th March, 1864.-Having heard parties' procurators, and made avizandum with the process, Finds that the

Edinburgh, 30th May, 1864.-The Sheriff, having heard parties' procurators, adheres to the Interlocutor appealed against, and decerns.

NOTE. Assuming that the Sheriff may competently decern for a small sum to prevent starvation, as suggested in Brank, 19th December, 1829, viii. c., S. 284, the Court did not in that case think that this ought to be done. If done at all it must be for a very brief space. And possibly further it ought to

be in a competent process. As well pointed out by the Sheriff-Substitute, the first and leading conclusion here is equivalent to a conclusion for permanent aliment. And if decree were given in terms of the second conclusion, the pursuer, to make such a decree operate in the same way as decree for perpetual aliment, need only persist, as she has done hitherto, in not going to the competent Court.

Any decree, in terms of the summons as laid, would enable the pursuer to separate permanently from her husband, and draw a perpetual aliment without going to the Court of Session at all.

Now, it is not competent for the Sheriff to deal with the permanent position of parties, 1st William IV., cap. 69, sec. 33. But the decree sought by the first conclusion would practically regulate that matter; and decree in terms of the second, the only other conclusion, would empower the pursuer to regulate it for herself. Both conclusions, therefore, it is thought, are incompetent.

A summary application for aliment, to be afforded for a limited, brief space, not more than sufficient to intent an action in the Supreme Court, would have been a proceeding totally different from the present. It is not necessary to consider how such an application might have been treated, but it may be observed that the period to which such an action could apply has long since expired. The fourth quarter for which aliment is claimed is now running; and not one step has been taken towards the portals of the Court of

Session.

None of the authorities known to the Sheriff tend to impugn the Interlocutor appealed against, but the contrary. Innes

advanced in loan:" Finds that the writ, No. 7, does not of itself prove the loan libelled: Therefore, allows the pursuers to prove the same by the writ or oath of the defender: Grants diligence against havers for recovery of writings to be reported, or a reference lodged to oath this day fortnight.

NOTE.-A loan of money can only be proved by writing or oath. An acknowledgment of receipt of money granted directly by the receiver to the giver in dubio is held to prove a loan, placing it on the receiver to show that it was received otherwise-as in payment of a prior debt. It is the fault of the granter of such acknowledgment that he did not express the true purpose of the receipt if it was not intended to acknowledge an advance of money. It was the contention of the pursuer's solicitor that the draft No. 7 being special in the name of the payee, was equivalent to an acknowledgment direct between the granter of the draft and the payee. The purpose and object of the writ, however, is solely as a voucher between the granter and the bank. The fact of its being made special in the name of the payee does not appear to give it any stronger force as a voucher than had it been made payable to the bearer. The bank generally requires the person receiving the money to endorse such drafts, but whose endorsation could never be held to prove a loan or imply obligation to repay.

It was the fault of the payer of the money not to have obtained a voucher directly to himself from the payee; all that the draft No. 7 can prove is, that the defender did receive the money. But this can have no greater force than the admission on record, qualified with the addition, that it was not in loan, but in payment of a claim, the nature of which, however, is not yet given.

The pursuer appealed, and thereafter the Sheriff pronounced the following Interlocutor:

Edinburgh, 14th June, 1864.-The Sheriff, having heard parties' procurators on the pursuers' appeal, and made avizandum with and considered the process, Dismisses the appeal, and affirms the Interlocutor appealed from.

NOTE. An acknowledgment granted by a party receiving money to the party paying, without words implying that the money was paid in extinction of a debt due to the receiver,