11th March 1857. FIRST DIVISION.

WILLIAM SMITH, Pursuer, v. DAVIDSON and WILSON,

Defenders.

Patent-Provisional Protection-Act 15 and 16 Vict., c. 83— A party registered a provisional specification of his invention, in terms of the Act 15 and 16 Vict., c. 83, and several months afterwards obtained letters patent, which were of the date of the provisional registration. Another party had, independently of him, perfected an invention substantially the same, before the provisional protection was obtained, but did not use it for the purposes of his trade until after that date. He used it, however, publicly, and for his trade, before the letters patent were delivered to the other party-Held, (1.) that there was infringement of the patent; but, (2.) that there was no such public and prior use as to invalidate it.

This was an action of damages for infringement of a patent for an invention for ruling patterns in various colours, such as tartan patterns upon boxes. It was tried before the Lord President and a jury on the 23d and 24th of July last, on the following issues:

"1. Whether, on or about the 1st day of February 1854, the pursuer obtained letters patent under the Great Seal of the United Kingdom, bearing date the 14th day of November 1853, for an invention therein described as Improvements in Ruling Ornamental Figures,' and did thereafter duly file a specification describing the nature of the said invention, and the manner in which the same was to be performed ?

2. Whether, during the years 1854 and 1855, or part thereof, and during the currency of the said letters patent, the defenders did, by themselves or others, wrongfully, and in contravention of the said letters patent, use improvements in ruling ornamental figures, substantially the same with the improvements described in the said specification, to the loss, injury, and damage of the pursuer ?"

(Then followed schedule of damages.)

"1. Whether the improvements mentioned in the said let. ters patent and specification are not the original invention of the pursuer?

"2. Whether improvements, substantially the same as those mentioned in the said letters patent and specification, were known and used within the united kingdom prior to the date of the said letters patent?"

It appeared from the pursuer's evidence, that in July 1853 he applied his mind to the question of how the labour of this particular kind of work could be facilitated, and that about the end of September he arrived at the principle on which his invention proceeded. On the 14th November 1853 he registered a provisional specification at the office of the Commissioners of Patents, in terms of the recent Act 15 and 16 Vict., c. 83. On the 12th of May 1854 he lodged his full specification, letters paent having been delivered out to him on the 1st February, dated the 14th November. It appeared that the lefenders had been making secret experiments, with a view to the same result as that attained by the puruers, in the autumn of 1853, and that, before the end of October, they brought them to something like a satisactory result; that early in November they had seiously thought of taking out a patent, and had communicated with Mr Johnston, a patent agent in Glasow, with that view. Their machine appeared to worksubstantially upon the same principle as that of the pursuers, but during their experiments they knew noting of the pursuer's investigations, and the two investgations went on simultaneously. It appeared that afte the 14th November the defenders had used their mahine, which was substantially the same as the pur

suer's, for the purposes of their trade, and that it was openly shown to their neighbours, and to persons of skill.

The Judge having charged the jury, the defenders' counsel excepted to his ruling, in respect that he directed the jury that, on the question of originality, as raised by the first issue, it was for the jury to say whether the system or mode of ruling ornamental figures, by a number of pens acting simultaneously, or in concert, each pen producing a separate portion of the pattern, was a new invention on the 14th November 1853. The objection was, that the charge was calculated to mislead, from too great generality, and a more detailed explanation was suggested, which his Lordship refused to make.

The jury returned the following verdict:

"Say, upon their oath, that, in respect of the matters proven before them, they, on the first issue for the pursuer, find for the pursuer; and on the first alternative issue for the defenders, they find also for the pursuer. And in regard to the two remaining issues, being the second issue for the pursuer and the second alternative issue, they find, (1.) That the defenders did, in the years 1854 and 1855, use improvements in ruling ornamental figures, substantially the same as the improvements described in the specification filed by the pursuer: (2.) That the improvements used by the defenders were invented by the defender Davidson before 14th November 1853, being the date of the provisional protection: (3.) That Mr Davidson did not use his invention for the purposes of his trade before 14th November 1853; but that the machine invented by him was capable of being so used before that date (4.) That Mr Davidson used his invention for the purposes of his trade between the 14th November 1853 and the 1st of February 1854. But whether the use by the defenders of the improvement was wrongful, and in contravention of the letters patent, the jury leave the Court, as matter of law, to determine, upon a consideration of these findings, and of the notes of evidence, and to enter up a verdict upon these issues for the pursuer, or for the defenders, according as they shall decide the matter of law. And, in the event of a verdict being entered up for the pursuer, they, of consent of parties, assess the damages at one shilling."

The defenders afterwards withdrew the exception, and the discussion took place upon the question as to how the verdict was to be entered up.

The defenders contended that the words of the issue had been chosen expressly to cover evasions of the patent by covert means. They had not stolen the pursuer's invention; on the contrary, they had perfected them before he took out his provisional protection, and had used it for the purposes of trade, before he got his patent. The use was not secret, but was as open as any use of the kind could naturally be. There could be no infringement possible by a party in this position.

As to the effect of the pursuer lodging a mere provisional specification under the recent statute, its object was merely to prevent accidental theft of an invention during its progress. It left the former law as to public and prior use untouched. The patent in this case had therefore been invalidated.-Carpenter v. Smith, Webster's Patent Cases, p. 537-8 (Lord Abinger's Remarks); Cormick v. King, Webster, 511 (Ch.-Jus. Tindal's Obs.); Caldwell, Hoare's Rep., p. 428.

Replied-The only inventor in the eye of the law was the party who first gave the public the benefit of the invention. The object of the statute in giving the privilege of provisional registration was to secure to such party the monopoly of the invention, and the fact of others being ready to do the same was of no moment,

if they did not actually do it. There had been no actual use of the machine in question by the defenders prior to the 14th November, and from that date the pursuer had secured his privilege. There had, therefore, been no invalidation by prior and public use, and the use of it after that by the defenders was an infringement.— Dolland v. Hall, H. Blackstone's Rep., xi. 470, 487; Gibson v. Brand, Man. and Grain, iv. 205; Lord Lyndhurst in Househill Coal Co. v. Nielson, 6th March 1843, Bell's Ap. Ca., ii. 1; Lewis v. Macleay, Webster's Patent Cases, p. 492.

At advising

Lord President.-The exception to the direction has been withdrawn, and we have to dispose of the case apart from that. The jury have devolved upon us the duty of entering up the verdict according as we shall decide the question of law involved. The argument of the pursuer has been less directed to the question of damages than to try the question of right, for it is agreed that the damages shall be one shilling. The defenders' case was twofold, consisting of a denial of the va lidity of the pursuer's patent, and of denial of the alleged infringement. The issues were framed to comprehend both. The defenders' first issue puts in question the originality of the pursuer's invention, and implies that if it is not an invention of the pursuer's, but borrowed from another, it is not a valid patent. The second puts the question, whether it was ever substantially used and known before that time;--that there was prior use by somebody, no matter who-no matter whether it was by the pursuer himself or some other person. All these issues having gone to trial, the verdict was given for the pursuer on the first issue, implying that he had duly obtained his patent. On the first alternative issue for the defenders they also determined the pursuer's originality of invention. There remained the other question of prior use. The verdict on this was-(1.) That the defenders did, in the years 1854 and 1855, use improvements substantially the same as those described in the pursuer's specification; and, (2.) That these improvements were invented by the defenders before the 14th November 1853, and were not then used, although capable of being used; and that they were used by them for the purposes of trade between that date and 1st of February following;-the Court to enter up the verdict according to the law on these points.

Now, the first point arises upon the second alternative issue of prior use. This prior use night have been, although the pursuer was the sole and original inventor. It might be by allowance, or it might be that he could not reclaim it, as it might have been invented by him without his being cogni zant of the invention by the other. It has been said that the improvement was substantially the same, and that it was used by the defenders before the 14th of November. It has not been attempted to be shown that it was used by any other party than the defenders before that date. That use by the defenders has been determined, and it is left to us to say whether it was such as to entitle the defenders to the verdict on that alternative issue. If it is sufficient for this, it is useless to inquire further, for there would then be no infringement. Now, in order to invalidate the letters patent, it is necessary that the use shall be prior, and that it shall be public, and not secret. The issue, accordingly, put the words "known and used." This means known to the public, and openly used. The jury have determined the date of the use. They have found that, before the 14th November, the machine was complete and capable of being used, but that it had not been so used for the purposes of trade; and it has not been found that it was then used for any other purpose, nor that it was published or made known before that time. It was proved also that the defenders had contemplated taking a patent; that steps were taken, and all was ready, but no public use made of it. In that case it cannot be said that anything was done to invalidate the patent before that date. It has been proved, however, that between that date and the 1st of February following, the defenders did use the machine, and it has not been proved that that use was anything else than that open and public use which trade implies. We have seen that it was not secret. Various persons of skill, and varions neighbours, were brought to see it. The question, therefore, is, was that use between these dates sufficient to

invalidate the patent? I am of opinion that it cannot have that effect, (1st,) because the issue does not refer to that time: (2d,) because the law would not give it that effect. The date of the patent was the 14th November, and it could not be meant to embrace such use after that date. Even if the terms of the issue could be stretched, I do not think that use by the defenders would invalidate the patent, for I think that the provisional protection obtained by the pursuer pro tected him from such use. It is of no importance who were the inventors. (See sections 8, 23, and 24 of the act.) The 8th introduces the power of lodging provisional specifications. I read that section as protecting the party against any use of his invention as an objection to the validity of his patent(Reads 23d and 24th sections.) Therefore, although the party is protected from an action of infringement, he is not invalidating the right of the patentee. It appears to me. then, that if the defenders made the invention during that intermediate period, it would not invalidate the patent, and that the verdict must, therefore, be entered up for the pursuer Having determined this, both grounds of invalidity are ne gatived, and the patent must be held valid. But this dou not exhaust the case. There remains the question of infringement. This is the most difficult part of the case. It is a case by no means common, of contemporaneous invention; the invention of both has been found to be original,-the same invention at the same time. The defenders, acting indepen dently, had perfected theirs before the pursuer registered They contend that the provisional protection did not disentitle them from using it, whatever the letters patet might do. There is no decision ruling this, only dieta: and these are not made in cases where an opinion on that point is of much value, or where the Judge hat given his mind fully to the question. It is said that the defenders are still entitled to use their own invention, with out being liable on the ground of infringement. It is said that the patent cannot prevent their doing what they were doing before, and cannot prevent them from using their own though they cannot use the pursuer's invention. If the 14th November is the true and legal date of the pursuer's patent nothing was done by the defenders before that date, and no hardship is therefore inflicted. The jury have found that they did not use the invention before that date. If it frees them from prosecution as infringers, there is nothing in the statute to show that they may continue. It must rest, there fore, on the other ground, viz., that they are using, not the pursuer's invention, but their own. That is inferred from the verdict, which says that the invention was their own, and from the terms of the letters patent, which are limited to the pursuer's own. This raises a question of delicacy and impert ance. A case of hardship is put,-that their manufacture is stopped, &c. With that case we need not deal, for their use had not begun at the date of the letters patent. In law, how ever, I am not of opinion that the defender' argument is sound. Whenever a patent is held to be valil in law, the holder of it is held to be the owner of the invention. It described in the letters patent as his invention. In law, he is the party who has given it to the public, on the condition getting the monopoly. It is his invention in that sense. The discovery of it is not that in which the pubic have an interest; but their interest is that they may havethe benefi of it. The disclosure of the invention is the point of impor ance; and the party who first comes forward with t gets the right to the invention. The consequence is that is more poly must be protected. There may be others who did not make their bargain with the public in time, and they must lose the advantage of it. The statute provides for Jl objec tions being raised against the party obtaining protecion, and corroborates this view of the matter. It is, then, ha inven tion which is used by any other party. It may be sid that that other party is also an original inventor, and is usg own, and not that of the patentee; but if he has not gven to the public, this will not avail him. May not any or wh takes Davidson's invention say, "I did not use the pateter's invention, but Davidson's," and then a growth of usersmay spring up from Davidson's, and destroy the patent altogher I see no ground for this, from usage, the terms of the past, or from the policy of the statute. I think the pursuer hatte right to call it his, and that nobody has any right to use a thing which is substantially the same. I may say that br parties in this case, when examined as witnesses, spoke wa

his

perfect candour; and being both in the same trade, both appear to have been running in the same race, and Smith had the good fortune to be first.

Lords Ivory, Curriehill, and Deas, concurred.

Presiding Judge, The Lord President.-Act. Cook, Gifford : G. Cotton, S.S.C. Agent.-Alt. Dean of Faculty (Inglis), Fraser: P. Paul, S.S.C. Agent.-L. Clerk.-(W.H.T.)

11th March 1857.

SECOND DIVISION.

Mrs JANET DUFF or CRICHTON and Others, Pursuers, v. The BARONESS KEITH and NAIRNE, COUNTESS DE FLAHAULT, and Husband, Defenders.

Lease-Clause of Succession-Construction-Interim Possession-A lease let the lands to a tenant and his heirs, without prejudice to his assigning it to any of his children, declaring, that where the succession "devolved on heirs-female, and no special assignment, the eldest should always succeed without division; but that no assignment or succession should be effectual without being approved of by the proprietor "--Held, that, on the tenant dying intestate leaving three daughters, the lease fell to the eldest heirportioner, and that the landlord was not entitled to object; and the eldest heir-portioner being abroad, and no provision made for cultivating the land, a judicial manager was appointed for behoof of the parties interested.

In 1839 a lease was entered into between the late Charles Duff and the defender's factor of the farm of Milltown of Tullybeagles.

The farm was let to the said Charles Duff and his heirs, but expressly secluding assignees and subtenants, legal or voluntary, unless with the special consent and approbation of the proprietrix, or those acting for her; but without prejudice to the tenant assigning the lease to any one of his children; and declaring, that in all cases where the succession should devolve on heirs-female, and no special assignment, the eldest should always succeed without division; but that no such assignment and succession should become effectual without being approved of by the proprietrix, or those acting for her at the time.

Mr Duff died in 1840, leaving three daughters, the eldest of whom, Mrs Crichton, was then in New York, where she has since continued to reside. The farm continued in the occupation of Mr Duff's widow and second daughter till 1854.

The pursuers Mrs Crichton and Mrs Reid, being the eldest and youngest daughters of Mr Duff, with consent of their husbands, raised the present action to have it found and declared that the lease belonged to Mrs Crichton, the eldest heir-portioner, and, in the option of the defenders, to the whole of the heirs-portioners, and that she or they were entitled to possess the said farm.

The defenders, besides mora and presumed abandonment on the part of Mrs Crichton, pleaded, that, "by the terms of the lease founded on by the pursuers, heirsportioners are excluded from succeeding to the farm, and the succession of an eldest heir-female can only take place with the approval of the proprietrix."

The Lord Ordinary pronounced the following interlocutor:

"Finds that the pursuer Mrs Janet Duff or Crichton, as eldest heir-female of her father, the late Charles Duff, is, under the lease libelled on, the successor in said lease, and is entitled to enter into the occupation and tenancy of the lands and others let under said lease; and in respect the defender has not declared any option, in terms of the alternative conclusions of the action, of taking the whole heirs-portioners as the successors in the said lease, finds, decerns, and declares in

favour of the pursuer, the said Janet Duff or Crichton, in terms of the primary conclusions of the summons: Finds the defender liable in the expenses of process," &c.

46

Note.-There are three points of considerable importance to be separately considered and disposed of. The first is the construction to be put on the clause of destination of the lease. After letting the lands to Charles Duff and his heirs, secluding assignees and subtenants, legal or voluntary, unless with special consent and approbation of the proprietor, it continuesbut without prejudice to the tenant assigning the lease to any one of his children, and declaring that in all cases where the succession should devolve on heirs-female, and no special assignment, that the eldest should always succeed without division; but declaring, that no such assignment and succession should become effectual without being approved of by the proprietor.' The tenant died, leaving three daughters, and without having executed any special assignment of the lease. The defender pleads that heirs-portioners are excluded, and that the eldest heir-female can only succeed with the approval of the proprietor. The present action is to assert the right of one of the pursuers, the eldest heir-female, but, at the sametime, to give an option to the proprietor to accept, if she chooses, the whole of the heirs-portioners as successors in the lease. The defender declines to recognize the right of succession in the eldest heir-female, and resists the conclusions of the action in toto. Undoubtedly the terms of the above clause are of difficult construction. The difficulty lies in assigning the meaning and import of the words and succession,' in the last member of the clause, no such assignment and succession should become effectual.' Does it qualify the previous declaration that, on the succession devolving on heirs-female, the eldest should always succeed without division? This is contended for by the defender, and, if correct, it makes the succession of the eldest heir-female dependent on the approval of the proprietor. And further, as by the declaration, that, when the succession devolves on heirs-female, the eldest should always succeed, heirs-portioners are excluded, the result, this clause being so interpreted, is to exclude female succession altogether, and, at the will of the proprietor, forfeit all right in the children of the tenant, being only females. There is certainly room under the words 'and succession' to hold by that construction, but the Lord Ordinary has been unable to adopt it. He thinks that the words used are not so clear in their meaning as to necessitate a construction so severe in its operation. He thinks there is ambiguity in the meaning of the words and succession,' coupled as they are with those preceding-no such assignation and succession;' and that without some additional words, as-of the eldest or eldest heir-female, following the words and succession,' there is obscurity in the construction contended for. The preceding member of the clause declares positively that the eldest should always succeed without division, in the case of succession devolving on heirsfemale and no special assignment, and it is thought that the effect of this declaration is insufficiently qualified as to the eldest by the words of the declaration following. In a case such as the present, the Lord Ordinary apprehends it was the duty of the proprietor to make luce clarius a stipulation, which was to take away the common law rights of the heirs of the tenant, by leaving them wholly dependent upon her pleasure. In the outset of the lease the lands are let to the tenant and his heirs generally. It was for the landlord to take off the effect of this destination, by distinct stipulation, to meet apprehended circumstances; and if it was intended that females were to be excluded of all right to succession at common law as heirsportioners, while the limitation to the eldest was to be defeasible by the landlord, it ought to have been made very plain indeed. The rule of law appears applicable—' in stipulationibus cum quæritur quid actum sit, verba contra stipulatorem interpretanda sunt.' It is not to be supposed that a tenantand the circumstances of the present case are adverse to itwould readily take a lease which made his heirs, as they existed at the time, incapable of succeeding to the benefit of the lease, except at the mere pleasure of the landlord. The Lord Ordinary thinks, that, upon a fair and sound construction of the lease, the eldest heir-female is entitled to succeed. Suppose the tenant had left an only daughter, would she have been excluded? Plainly not, when the clause is in the plural-heirsfemale. But, if female succession is not wholly excluded, except with consent of the landlord, should not the declaration in favour of the landlord, of the succession in case of heirs-female

being to the eldest, be construed as giving an absolute right of succession to the eldest, and not a defeasible one?

"If the Lord Ordinary should be mistaken on the first point, the other defences of the proprietor are superseded. On the opposite view, the second point of mora is to be considered. The defender raises that plea solely on the facts ap. pearing from the pursuer's condescendence. There is no statement by the defender, which is a siguificant circumstance. The plea of mora rests on the time which has elapsed between the date of the father's death and the bringing of the present action. No doubt the number of years is very great. But the eldest daughter states that she was ignorant of her rightsresident abroad at the time of her father's death, where she has continued to reside-and that the terms of the lease were unknown to her; and it appears, indeed, not to have been in possession of the family, and a copy of it only obtained some few months before raising this action. These averments of the pursuer are not denied upon record. The answer is merely that they are not admitted. Then, as to the possession of the farm, it appears all along to have been in the members of the family. The widow and her second daughter continued to occupy until the widow's death, after which this daughter and her husband continued in the occupation till June 1854, after which this daughter's son remained in the occupation, and still continues in it. These facts are admitted by the defender. If the legal right to the lease is in the elder pursuer, it is conceived that the delay in asserting her right will not forfeit it. Had, indeed, the defender been able to aver, that, relying on presumed abandonment of the lease, the lands had been left to other parties, and new contracts entered into; or even that there had been an adoption of the second daughter as tenant on presumed dereliction of the lease by the elder, there might have been grounds for holding the pursuer precluded from now claiming possession of the farm. But there is nothing on record alleging that the defender's interests have suffered by the pursuer's delay, or will suffer by vindicating her right to the lease. And as to the sister, who has been in possession since the widow's death, and her son, the present possessor, they are both called as defenders in this action, and do not resist its conclusions. Under these circumstances, the Lord Ordinary considers it unnecessary to examine the application of the plea of mora to discharge the right of an heir to a lease. He thinks the facts upon the record in this case do not admit of the defender pleading mora with effect.

"The third point is raised by the additional plea in law added by the defender after the debate. It is, that the pursuer's continued residence abroad since her father's death is to be held as an abandonment of her right under the lease; that it is a disqualification of her being teuant, and bars her present claim. The validity of the plea of abandonment of her rights must, like the plea of mora, rest on her knowledge of her rights under the lease, and which she forbore to claim. But that kuowledge is not averred by the defender, and the pursuer's allegation of her ignorance of her rights is not even denied by the defender. Mere residence abroad cannot of itself operate a forfeiture. Though there are no conventional irritancies in the lease, the pursuer, if she obtains decree in this action, is of course bound by the common law obligations incumbent on a tenant. She has stated on record her readiness to implement the lease, and proposed, by minute, if required, to express her resolution to take possession and reside. Her present residence abroad, while this process is in dependence, is conceived to be immaterial, the defender resisting altogether her right as heir to the lease. She will, it is thought, he entitled to reasonable notice that personal residence is insisted on. In the case of Stirling v. Miller, 29th June 1813, Fac. Col., where the heir in a lease, which stipulated personal occupancy and residence, had gone with her husband to America, and an action of declarator of irritancy was brought against her on account of not residing upon the farm, time was allowed to her to return and assume possession."

The defenders reclaimed, contending, that their construction of the lease was the correct one, and that on the succession of the daughter the consent of the proprietor was necessary.

Counsel for the pursuer was not called upon.

Lord Murray.-I quite agree with the Lord Ordinary, and his note expresses the reason so well, that I cannot hope to do it better. In every case where a party makes a special destination, the common law will flow in if there is any hole or aperture left. The presumption is in favour of the common law. A party must state their intentions clearly, if they wish to alter the order of succession. I think this is the only safe rule of construction the Court can adopt. Lords Cowan and Justice-Clerk concurred. Lord Wood absent.

It was then stated by the defenders, that the farm was at present totally displenished, and that no provision was made for cultivating this season, and the pursuer's absence from the country rendered it impossible for her to provide suitable measures in time. The Court was, therefore, craved to appoint a judicial manager ad interim.

The pursuer admitted the statement, and consented to this course being adopted.

The Court pronounced the following interlocutor:"Adhere to the interlocutor reclaimed against: Find the defenders liable in additional expenses, and remit, &c.: And in respect of the pursuer Mrs Janet Duff or Crichton being at present in America, and of the statement now made at the bar by the defenders' counsel, and not denied by the pursuer's counsel, in regard to the present condition of the farm and lands of Milltown of Tully beagles, described in the summons, on the motion now made for the defenders, find that a manager ought now to be appointed to take possession of the said farm and lands, and labour and manage the same for be hoof of all concerned; and appoint William Menzies, residing at Burnbrae of Tullyallan (factor for the defenders), to be such manager accordingly, with all the powers usual and necessary; reserving all questions between the pursuer and defenders of liability inter se arising out of said appointment; but declaring that the pursuer's mandatory is free from all such liability; and decern."

Lord Ordinary, Handyside.-Act. Macfarlane, Black; T. and R. Landale, S.S.C. Agents.-Alt. Solicitor-General (Maitland), Ross; Russell and Nicolson, C.S. Agents.-I. Clerk.—(G.R.O.)

11th March 1857. SECOND DIVISION.

JAMES HAMILTON and Others, Pursuers, v. JOHN CHRISTIE and THOMAS HAMILTON (Stonehouse Road Trustees), Defenders.

Process-Interlocutor-Clerical Error-Decree by Default-A party who had been reponed against a decree by default, failed to pay the expenses which were found due. In the interlocutor dismissing the action of new, the clerk inserted by mistake the word pursuer instead of pursuers. After the mistake was discovered, the Lord Ordinary pronounced another interlocutor, again dismissing the action, with expenses-Held competent, and that the pursuers were not entitled to be reponed.

In this case, after the record had been closed, and parties ordered to debate, the action was dismissed, in respect the pursuers had made no appearance at repeated callings in the debate roll. They were reponed, on 27th November 1856, on payment of 8 guineas of expenses within 8 days. The expenses not being paid, the Lord Ordinary pronounced the following interlocutor:

"18th December 1856.-Lord Mackenzie.-Act. Absent.-AU. Brown. In respect the pursuer has failed to make payment to the defenders of £8: 8s.-On the motion of the defender, the Lord Ordinary of new dismisses the action: Finds the pursuer liable in expenses, and remits the account, when lodged, to the Auditor of Court to tax and report." (Signed) "T. MACKENZIE.'

It was discovered that by a clerical mistake the word pursuer had been inserted instead of pursuers, and this

having been brought under the notice of the Lord Ordinary, he, on 17th February, pronounced an interlocutor of new dismissing the action, and decerning against the pursuers for the expenses.

The pursuers reclaimed against this, craving the Court

"to recall the interlocutor complained of; to find that it was incompetent in the Lord Ordinary to pronounce the same; and to find the pursuers entitled to the expenses thereby occasioned; or to do otherwise in the premises as to your Lordships shall seem proper."

Counsel for the pursuers was heard in support of the prayer of the note.

Lord Justice-Clerk.-We cannot permit such practices as this. If a party is to be reponed against one decree by default after another, there is no saying where such a system may end.

The Court refused the reclaiming note, and found the defenders entitled to the expense of discussing its competency, modifying the same to £4: 4s.

Lord Ordinary, Mackenzie.-Act. F. W. Clark; W. Mackersy, W.S. Agent.-Alt. Brown; J. Phin, S.S.C. Agent.-I. Clerk.(G.R.O.)

11th March 1857. SECOND DIVISION.

Mrs JANE MARSHALL or HOUSTON, Pursuer, v. THE LORD PROVOST, MAGISTRATES, and TOWN COUNCIL OF GLASGOW, Defenders.

Statute, Con struction of-Glasgow Municipal Act, 9 and 10 Vict., c. 289, sect. 14-By the Act 9 and 10 Vict., c. 289, the municipality of Glasgow was extended over Gorbals parish; and by the 14th section "the common good and property, heritable and moveable, and means and revenues, and income of every description," belonging to the Barony of Gorbals, was transferred to, and vested in the town council-Held, in construing the statute, that the Corporation of Glasgow were not liable for the arrears of stipend due to the minister of the parish of Gorbals, the parish having beer constituted by decree of the Teind Court, and forming only a part of the barony.

The late Robert Houston, minister of the parish of Gorbals from 1846 to Whitsunday 1853, was deposed by the General Assembly, and soon after he raised the present action against the Town Council and Magistrates of Glasgow for £1324: 10:5, as arrears of stipend and allowance for communion elements. Mr Houston having died, the action was insisted in by his widow.

The nature of the case and the pleas of parties will be found sufficiently stated in the interlocutor and note of the Lord Ordinary, in which his Lordship

"sustains the defences for the Lord Provost, Magistrates, and Town Council of Glasgow, and assoilzies them from the whole conclusions of the action: Finds the pursuer Mrs Jane Marshall or Houston liable in expenses to the defenders, &c.

"Note. This action was raised by the late Robert Houston, sometime minister of Gorbals, against the Magistrates and Town-Council of Glasgow, for payment of £1324:10:5 of arrears of stipend said to be due to him at Whitsunday 1853. The original pursuer was deposed from the office of a minister of the Church of Scotland in May 1853, and having died during the dependence of the action, it is now insisted in by Mrs Houston, his widow and executrix.

"The question raised, which is of considerable difficulty and importance, is-whether the Magistrates of Glasgow are liable, under the Act 9 and 10 Victoria, cap. 289, to pay the stipend due to the minister of the parish of Gorbals? This question depends upon the construction to be put on certain clauses of what is called the Municipal Extension Act of 1846, and particularly the 14th section.

"It is contended by the pursuer that, under that act, the magistrates are bound to take over certain public property

which is said to have belonged to the community of Gorbals, subject to its debts and liabilities, and are liable for the stipend of the ministers of Gorbals, as a burden affecting that property. On the other hand, the defenders deny that they have incurred any such liability, and maintain that the subjects in question are not carried by the 14th section of the act, because they belong to the feuars of the village or parish of Gorbals, and form no part of the common good or public property belonging to the barony of Gorbals.

"The barony of Gorbals, which is situated on the south side of the Clyde, was acquired from Sir Robert Douglas, about the middle of the 17th century, by the Magistrates and Council of Glasgow, partly for behoof of the corporation, and partly for behoof of Hutcheson's Hospital and the Trades' House. There existed, at the time of this purchase, a village of Gorbals, usually called 'Bridgend,' from its being situated at the south end of the old bridge of Glasgow, and occupying a part of the barony adjacent to that bridge.

It is admitted that the Gorbals territory was never erected into a burgh of barony, and in this respect it differs from Calton and Anderston. The Magistrates of Glasgow, however, as superiors, appointed baron bailies, whose jurisdiction extended not only over the whole village, but over the whole bounds of the barony, which was much more extensive.

"After the village of Gorbals or Bridgend increased in population, the feuars or heritors made rules and regulations for the common benefit, and appointed a preses and managers for the conduct of their affairs. It is admitted that in 1727 and 1734 the feuars of the village of Gorbals acquired ground for building a church or chapel of ease, and for a buryingplace; and in 1748 they acquired certain tenements or subjects in the village. The titles to those subjects appear to have been taken to certain parties, as managers for behoof of the feuars of the village. In 1771 they obtained a decree from the Commissioners of Teinds disjoining the village of Gorbals from the parish of Govan, and erecting it into a separate parish; and in 1810 they purchased ground for, and erected a new and larger church. Besides the parochial matters referred to, the feuars of the village of Gorbals, by their preses and managers, raised, by assessment or otherwise, a small public fund, which they applied to purposes of common concern, such as sinking wells, providing lamps, repairing causeways, and the like.

"By the decree of 1771 the heritors of Govan were declared not to be liable in payment of stipend to the minister of the new parish of Gorbals, or for the expense of building or repairing the kirk or burying-ground, or for any other parochial burden. All those burdens were laid on the bailies of the said village, preses, and managers of the public funds thereof.' The patronage of the newly erected parish, which was reserved by the decree to the College of Glasgow, as patrons of Govan, was purchased by the feuars in 1771, under a disposition which was granted to the heritors or feuars of the said village and parish of Gorbals, and their heirs and successors, and to the elders of the said new erected parish, and their successors in office, in all time coming.'

"After the village was erected into a separate parish, according to well defined boundaries specified in the decree, Hutcheson's Hospital and the Trades' House feued out extensive tracts of building ground according to regular plans, with spacious streets, and in progress of time the old village or parish of Gorbals was surrounded by buildings in the districts called Hutchesontown, Lauriston, Tradeston, and Kingston, which are all in the barony of Gorbals, but form no part of the village of Gorbals, or the parish of Gorbals, as fixed by the decree of the Court of Teinds in 1771.

"To meet the exigencies of an increased population, additional resident baron bailies were appointed by the Magistrates of Glasgow, as superiors, and a general system of police was introduced applicable to the whole barony of Gorbals, including the old village. The first police act, which was passed in 1808 (48 Geo. III., c. 42,) is entitled, An Act for regulating the police of the barony of Gorbals, in the county of Lanark, paving, lighting, and cleansing the passages thereof, erecting a bridewell or workhouse therein, and for other purposes relating thereto.' The first section declares, that the act shall extend over the old village of Gorbals, Hutchesontown, Lauriston, Tradeston, and Kingston, being parts of the barony aforesaid, and in general over the whole and every part of the said barony, and also to the bridge leading from the said city of