We do not wish to delay the cause; we have all along been most anxious to proceed.

Mackenzie for respondent-We have not lodged answers to the petition, and do not now oppose it, our intention being to leave the matter in the hands of the Court.

Lord Cockburn.-I think this application, which is gently opposed, is one which, in the exercise of our discretion, we ought not to grant. I am of opinion that the trial of the facts ought now to take place, instead of being hung up for years, as it very possibly may be, by this appeal.

Lord Justice-Clerk.-We shall allow you to apply again if the pursuer does not go on with the trial.

Petition refused hoc statu.

Act. Deas; Alexander Hamilton, W.S. Agent.-Alt. Mackenzie; Patrick Graham, W.S. Agent.—T. Clerk.—(F.H.)

30th May 1850. SECOND DIVISION.

No. 169. SIR WILLIAM DON, Complainer, v. JOHN

FOLEY KEALY, Respondent.

Bill of Exchange-Summary Diligence-Foreign-Grounds and Warrants-Process-A domiciled Scotsman, during a temporary residence in London, accepted a bill payable there, and drawn upon him by an Englishman-Held that the bill was a good warrant for summary diligence in Scotland.

This was a suspension of a charge upon a bill in the following terms, accepted in favour of the drawer, E. R. Clark, an Englishman, and indorsed by him to the respondent :**£200. London, 17th November 1849. "Sixty days after date, pay to me, or my order, the sum of two hundred pounds, for value received. E. R. CLARK. "To SIR WILLIAM H. DON, Bart. Clarendon Hotel, Bond Street. "Accepted payable at Mr. Maitland, 27 Westminster.

Gt. George St., W. H. DON."

(Indorsed)-"Pay John Foley Kealy, Esq., or order. "E. R. CLARK.”

At the date of acceptance, the complainer, a Scotsan, was temporarily staying at the Clarendon Hotel, Bord Street, London-his domicile and ordinary resilence being in Scotland.

He pleaded-1. The bill charged on being a "foreign bill of exchange from or to this realm," does not fall under the description of bills favoured by the act of arliament, and affords, ex facie, no warrant for sumnary diligence in this country. 2. By the law of Engand, a party in the situation of a charger on a bill is not entitled to recover by summary diligence. The Lord Ordinary refused the note. The complainer reclaimed.

Marshall for reclaimer-The only question before the Court is, whether summary diligence be competent on a ill drawn in London, and accepted and payable there. This is an English inland bill, and there is no authority support summary diligence on such a bill, summary liligence not being competent on bills at common law. tis entirely a statutory privilege. The present charge must therefore be shewn to be within the terms of the three) statutes which regulate the matter; but none of them authorizes summary diligence in this country pon a bill drawn and payable in a foreign country. The first of these, 1681, c. 20, authorizes diligence an foreign bills; but this is not a foreign bill in the ense of the statute. The foreign bills there menSCOTTISH JURIST.

tioned are bills drawn from one country to another. They are not foreign inland bills. This is not a foreign bill, either in the statutory or the mercantile meaning of the term. The statute 1696, c. 36, authorizes the same form of summary diligence upon inland bills; but that means Scotch inland bills. It does not mean French, Dutch, American, or English inland bills. The statute 12 Geo. III. c. 72, made some farther regulations, and extended the privilege of summary diligence to promissory-notes. But none of these statutes authorized this diligence on a foreign inland bill.

Moir, for the suspender, was not called on.

Lord Medwyn.-I am not for putting so strict a construction on the statutes. I think a bill granted by a domiciled Scotchman, subject to the jurisdiction of this Court, is not to be taken as a foreign inland bill.

Lord Moncreiff.-It is not disputed that this gentleman is subject to the jurisdiction of this Court, though he was accidentally in London. Is not this a bill from one country to another, where the courts of this country must have been in contemplation of the parties on failure to pay?

Lord Cockburn.-I understand that the course of practice clearly points to this conclusion.

Lord Justice-Clerk concurred.

The Court adhered.

Lord Ordinary, Dundrennan.-Act. Marshall; Inglis and Burns, W.S. Agents.-Alt. Moir; Thomas Ranken, S.S.C. Agent. T. Clerk. (F.H.)

31st May 1850.

FIRST DIVISION.

pur

No. 170.-THE NATIONAL EXCHANGE COMPANY, Pursuers, v. PETER DREW and MATHEW DICK, Defenders. Relevancy-Summons-Record-Fraud--A joint-stock company, which carried on the business both of banking and sharebroking, pursued a party for payment of advances made by the company, to enable him to purchase shares of the company stock. The defender averred that he had been prevailed on to make the chase by gross fraud and misrepresentation; that he had relied on the reports of the directors, and the assurances of their manager, as to the position of the company's affairs, which were altogether false; that the company acted as brokers in the transaction; and that, at the time they undertook so to act, and to advance the price of the stock, they concealed the fact, that their affairs were utterly desperate, and the stock of no value. And he pleaded, that, in the circumstances, and as the company had acted as brokers in the purchase, and induced him to enter into the same by fraud, concealment, and misrepresentation, they were barred from claiming payment of the advance. Terms of record, which—Held relevant to support the pleas.

dividend, was actually insolvent." "7. Large losses arose from gross neglect and mismanagement on the part of the directors, and Mr. Barlow, the manager of the company." Mr. Barlow having been allowed by the directors to grant loans, and to draw on the banks, on his own authority, contrary to the provisions of the deed of constitution, "the shareholders were kept in entire ignorance of the true state of the company's affairs, which were represented to be in the most prosperous state, when they were actually insolvent. 8. Shortly after the meeting of 16th September, the shareholders having demanded an-investigation, it was "ascertained that the whole paid-up capital, amounting to upwards of £200,000, was exhausted, and that there would be a deficiency to be made up by a fresh call upon the shareholders. Mr. Barlow, the manager, resigned, or was dismissed, and several of the directors retired from the management, and others were elected in their room. 9. About the month of October 1847, before the shareholders were aware of the true condition of the company's affairs, the defenders were urgently solicited by Mr. Barlow, the manager, to purchase additional shares of the company's stock. At that period the shares began to fall in the market, and the directors of the company were most anxious to keep them up, and counteract certain rumours, unfavourable to the stability of the concern, which were beginning to get into circulation. The manager assured the defenders that the company would advance the necessary funds for purchasing the shares, and that the stock would be held until it could be sold at a profit, without the defenders being called upon for any contribution in money, the company being secure by the large amount of stock held upon joint account. 10. The defenders at this time were wholly ig. norant of the true position of the affairs of the company. They relied upon the representations given by the directors in their reports, and the assurances of Mr. Barlow, the manager, who prevailed upon them to accept 240 shares of the stock, in addition to those formerly held by them, upon the footing of the company advancing the price. The Exchange Company, through their manager, Mr. Barlow, acted as the brokers in purchasing these shares, and paid the price, and the transfers were taken in favour of the defenders jointly, and are still in the company's hands. 11. The defenders were prevailed upon to enter into this transaction by gross fraud and misrepresentation. The reports of the directors, and the statements of their manager, were a tissue of falsehoods; and at the time when the company undertook to act as brokers for the defenders, and to advance the price of the stock, they concealed the fact that the affairs of the company were utterly desperate, and that the stock which they professed to purchase was of no value, and might entail a serious loss on those who acquired it. 12. A special general meeting of the shareholders was held on the 8th March 1848, at which a report was read shewing that the whole assets of the company were exhausted, and since then a call has been made upon the defenders and the other shareholders to meet losses. Reference is made to that report, as well as to the relative statement made by Mr. Gourlay, the managing director, for the details of the mismanagement of the directors, and the ruinous condition of the affairs of this company."

The defenders pleaded-1. In the circumstances, the National Exchange Company was not entitled to make any claim against them for the advances alleged in October and November 1847. 2. More particularly, as the National Exchange Company acted as brokers for the defenders in purchasing the stock, and prevailed upon them to do so by gross fraud, concealment, and misrepresentation, the company was barred from claiming payment of advances on account of the shares. 3. At all events, the claims of the pursuers were excessive, and the charges in name of interest exorbitant.

The Lord Ordinary pronounced the following interlocutor:

"Finds no sufficient allegation in point of fact made for the defenders to support, as relevant, either their first or second plea, and so far repels the defences: But, as regards the matter referred to in their third plea, finds the allegation of overcharge relevant, and the defenders consequently entitled to have their objections inquired into, and appoints the cause to be enrolled for that purpose.

"Note. In so far as this case raises a question between be rower and lender, it seems to turn on substantially the same pri ciples as two others (North British Bank v. Graham, et é contro in consideration of which the present was allowed to stand ove and to the judgments in which, now that the Lord Ordinary li been enabled to dispose of them, reference may be made.

"So far, again, as there is a question between broker and ex ployer, it is not presented in such a clear, distinct, and substa tive form, on the face of the record, as to bring out, in the Lo Ordinary's opinion, a relevant case. Apart from the allegatio of general mismanagement and misrepresentation of the con pany's affairs, as between the directors and shareholders, a the separate allegations as to Mr. Barlow's having recommend the speculation here in dispute, and promised assistance a support in the shape of money advance or credit, for carrying through, there is no substance in the defenders' statements. to the latter, indeed, it was beyond the scope of Barlow's & thority as manager of the company (whether considered a banker or broker) to give any such recommendation or assu ances. As to the power, it is not easy to see how the director misconduct, which has in the other branch of the argument bec found insufficient in itself to affect the general body of the shar holders, can be made more available here merely by mixing up with the question of brokerage. Besides, the defenders hav ing themselves been partners long prior to the transaction whic has given rise to the present question, and indeed througho the entire period in which the directors are alleged to hav misconducted matters, must be presumed cognizant of the com pany's whole condition and state of affairs, so far at least as th shareholders can be held responsible for the proceedings of the directors; and, consequently, as regards this view of the cas are not even in the same favourable situation in which a thir party might have been argued to stand."

The defenders reclaimed against the finding as to thei first two pleas, and pleaded-If the allegations of mis representation and fraud were sufficiently specific-a they were they were relevant to go to proof.-Brown 8th March 1834; Burnes, 16th July 1849, House Lords, supra, vol. xxi. p. 540. The pursuers, wher aware of their insolvency, acted as brokers in the trans action, and through Barlow induced the defenders to purchase stock by concealment of the true position of the company.

[Lord Mackenzie.-That makes it just a case of brokerage, and it would have been just the same if the purchase had been of shares of any other stock.]

The shareholders were bound by the acts of the directors acting within the business of the company. In order to obviate any difficulty in point of form, the defenders had now raised a summons of reduction against the pursuers, and prayed the Court to follow the course taken by the Second Division in Graham v. North British Bank, ante, p. 393, which was, to sist the ordinary action until an issue had been tried under the reduction.

The pursuers answered The difficulty in the case was not as to any point of form, which the raising t a reduction could cure, but consisted in this, that there was no relevant statement in defence. The case of Graham was different, for there it was alleged that the shares belonged to the bank itself. Here, the shares were purchased from third parties. The whole statements in defence, up to No. 8, averred nothing more than misrepresentation by the directors to the share holders-the very allegation which had been overruled in the case of Burnes. Then there was no harm in the pursuers acting as brokers, for that was part of their regular business. It was a principle established, thai, as between members of a company, the mismanagement or misconduct of the officers induced no liability on the part of the company. It was the company here who acted as the broker, and it could not be made liable because

one of its officers, who carried through the transaction, knew intimately the state of its affairs. On the other hand, the formal process of brokerage might be carried through by any of the clerks of the company, who perhaps knew nothing of the state of the company's affairs; but, if so, could the pursuers be made liable? Here, it was not averred that Barlow, but the company, acted as broker; the averment, therefore, that Barlow, the company's officer, knew of insolvency, was irrelevant.

Lord Justice-General.-After having heard the argument, I must say that I cannot adhere to the interlocutor of the Lord Ordinary. In the first place, this is an extraordinary sort of company; for they come here in a double capacity, as carrying on both a certain species of banking, and also acting as brokers. If a party, therefore, avers that he has been injured by their way of carrying on business, we must look to this double capaty in which the parties act. Here, it is stated on the record that they acted as brokers in the purchase of these shares; of course I am not speaking of any shares held by the reclaimers long before the transaction in question, but in reference to those 38 to which it is said that Barlow acted as broker in the capacity of manager of the company. Now, I think it is quite relevant to allege what is alleged here. I hold, that if a broker is in the knowledge that a company as to which the transaction which forms the subject of his acts as broker, is perfectly insolvent, and, in that knowledge, carries out the transaction, he is hable to the constituent who employed him, if he have been nxled, on the ground of fraud. I have no doubt of that. Now, let us look at the record, and see if there are relevant averments(reads statements 9 and 10). Now, it is averred that Barlow was the manager at that time; and that being so, can we hesitate to believe that he knew the affairs of the company, and, in solicitag this purchase and giving this accommodation, he was acting in the double capacity of manager and broker? I do not think there is anything in the case of Burnes to induce me to alter my opinion-nor in that of Graham; but I do not found on that; I look to the record, and I think there is matter there set forth which ought to be investigated. I cannot adhere to the intercutor. I think the case ought to go to an issue. The case of Burnes was very special. The party there who was alleged to have made the misrepresentation was one who had no power to Contract for the company; he was the law-agent, not the manager; and we were called on to go back upon the proceedags of the directors for years. That case had no resemblance at all to the present.

Lord Mackenzie.-I am of the same opinion. This case comes before us not perhaps in the clearest way, but still I think we an get at the justice of the matter in this form. It is an action ur payment of advances which were no doubt made, but ad. vances which, it is pleaded, these parties cannot claim-for it Comes to that, because they were drawn in to make the purhases by a party for whom the company were responsible, and therefore they are bound to relieve. In point of fact, it just comes to be a case of relief. The advances were made on account of the traud of the company, or of persons for whom they were responble, and they must just take the shares. It is just a plea of retat from the advances on the ground of wrong done by the bank or its officer. That is the way it strikes me. The substantial justice of the case, in whatever form it is brought, is, that the reclaimers cannot be made to pay these advances on account of the fraud alleged. Then, what are the facts stated? It is t forth that the company was bankrupt; they were brokersthat was part of their regular business and duty; Barlow was their manager, and of course quite cognizant of the state of their affairs. He first tempted, it is said, these parties to purChase the shares by false representations of the prosperity of the company, and then, as the broker and manager, advanced the money, and paid it to the parties who sold the shares-in fact it is averred that he engaged in a palpable fraud-and, therefore, that the company are responsible: That is the statement. If the company are responsible, I think there is no difficulty on the point of form; and if there are averments sufficient—and I think there are--I think they are quite relevant to make the company liable to this extent, that they are not entitled to recover the money advanced. I think we must alter the interlocutor of the Lord Ordinary. There are two grounds on which the defender's case rests, both of which I should have difficulty in

rejecting. In the first place, Barlow was the manager, and induced them to purchase for the interest of the company; if the manager, when the company was insolvent, tempted these parties to purchase, I think the company would be liable. But, secondly, the company were brokers, and Barlow accordingly acted as a broker, and received money for acting as a broker. That is my difficulty, and one which I have always felt, that the company should not be liable for their manager acting for them in the proper business of the company. I do not hold the business of a broker to be so limited, as that, if he knew the stock which he was told to buy to be quite bankrupt and worthless, he is still bound necessarily to act on his order.

Lord Fullerton.-I have come to the same conclusion; and, in so doing, I am not in the least impeaching the authority of the case of Burnes. That was a different case. It was an action for payment of calls, and the averment of the defender was, that he had been induced to make the purchase by the misrepresentation of the directors to the shareholders, and of the law. agent to himself. The case of Graham, again, was a different case, for there the shares sold were held by the company, and sold by those acting for the company, and there the Court allowed an issue. Still that fixes one most important point, that when the act is done by the directors for the company, and properly done by them, the company may be affected; and it would be very extraordinary if it were not so, for then the company would always get the benefit of any fraud committed by their manager. Now, here, it is admitted-which is an important part of the case-that the company were brokers, and the present action is raised for the very purpose of recovering money advanced by the company when they were acting as brokers. Now, it being admitted that the company were brokers, the acts of the manager as a broker are just matters for which the company will be liable. It would be monstrous to hold otherwise. I think there are averments here to bring it out that Barlow induced these parties to buy on these representations-and very strong representations they were-and that at that moment the company were insolvent. I have no doubt as to the averments; the only question is, can they touch the company. And I agree with your Lordships, that if the company were brokers, this is a case in which they must be bound by the statements, or rather misstatements, of the manager.

Lord Cuninghame.-If this had been the first case of the kind, I should have had no difficulty in holding that such a prima facie case was made out, that it must result in an investigation; but I think it is substantially the same in principle with the case of Graham, and it is just as strong a case of the kind as can occur. No doubt, here, the shares were bought from third parties; but it is averred that the company were insolvent, and that the manager and directors knew of that, and that, to prevent the stock falling, they made false statements to the defenders, and prevailed on them to purchase. Can anything be stronger than the 11th statement? Then the only plea in answer is, that the shareholders can't be injured by the fraud of the manager and directors. That may be true; but it is equally true that they cannot benefit by it. I think it is quite clear that the defenders' averments are relevant, and that they are entitled to require them to be investigated.

The Court pronounced the following interlocutor:"Recal the Lord Ordinary's interlocutor submitted to review, in so far as it in part repels the defences; and remit to the Lord Ordinary to proceed in the preparation of issues; reserving all questions of expenses."

Lord Ordinary, Ivory.-Act. Inglis, Young; J. and J. Wright, W.S. Agents. Alt. Penney, Mackenzie; Patrick Paul, S.S.C. Agent.-L. Clerk.-(W.G.T.)

31st May 1850.

SECOND DIVISION.

No. 171.-THE GLASGOW, BARRHEAD, AND NEILSTON DIRECT RAILWAY COMPANY, Petitioners, v. THE CALEDONIAN RAILWAY COMPANY, Respondents. Railway-Judicial Factor-Sequestration-A railway company executed a lease and deed of assignment of their line in favour of another company. The lessees having refused to take possession, the lessors presented an application to the Court for a judicial

factor to manage their hine, which continued in their own possession-Petition refused. Question, Whether a petition for a judicial factor be competent without a prayer for sequestration? Under an agreement, sanctioned by various private statutes, the petitioners executed a 999 years' lease and deed of assignment of their line in favour of the respondents, who afterwards refused to enter into possession. In consequence of this refusal, the petitioners presented this application, praying the Court,

"in the event of the Caledonian Railway Company still refusing or delaying to enter into possession of the petitioners' railways and works, and other property and effects, under the foresaid lease and deed of assignment, and of the parties failing to concur and agree as to an interim arrangement for the management and working of the said railway and works, so as to protect the rights and interests of all concerned, to nominate and appoint such properly qualified person as your Lordships may think fit for the office, to be judicial factor on the petitioners' railways and works, and other property and effects comprehended in the foresaid lease and deed of assignment, with power to enter into possession of, and to manage and work the said railways and works, and to uplift the revenues thereof, and apply the same, in the first place, in payment of the expenses attending the working and management of the said railways and works; secondly, in payment of the interest due, or to become due, on the subsisting securities or mortgages granted by the petitioners; and, thirdly, to consign the balance upon a deposit-receipt, so that the same may be subject to the orders of your Lordships; or with such other powers, and upon such other terms and conditions, as to your Lordships may seem proper; the said nomination and appointment to continue in force aye and until the same shall be recalled by your Lordships; and that always under reservation of, and without prejudice to, the rights and claims of the petitioners, and the said Caledonian Railway Company, and all other parties interested, and to pronounce such other orders, warrants, or decrees, in the premises, as to your Lordships may seem fit; and, if deemed necessary, to remit to the Lord Ordinary on the Bills to inquire into the facts, and to report, with power to his Lordship to make an interim appointment of a judicial factor, if this shall appear proper or necessary; or to do otherwise," &c.

The respondents opposed the petition, on the ground that certain conditions essential to the completion of the transfers had not been fulfilled. They also contended, that the application was incompetent, because, if the petitioners could shew a refusal to fulfil an agreement, or a breach of it, the proper remedy was an action for implement, or of damages; and they argued, that as the line was now in the hands of its owners, the petitioners themselves, their possession could not be inverted by the appointment of a judicial factor, unless there was also a sequestration; that it was questionable whether it was competent at common law to appoint a judicial factor to manage a railway; and that this was not the case contemplated by the Companies Clauses Consolidation Act (§ 17) for such an appointment-viz, where an application is made for the purpose by a mortgagee in arrear of interest.

At advising,

Lord Justice Clerk.-I am for refusing the application. We are asked to take this railway out of the possession of its proper owner, who is working it. This is quite irregular and incompetent. I don't enter into the question, whether a sequestration is necessary. But it would surely be a strong thing to sequestrate property when its lawful owner is in possession. The other Judges concurred.

Petition refused.

Act. Mackenzie, Inglis; P. Graham, W.S. Agent. Alt. Dean of Faculty (M'Neill), Patton; Hope, Oliphant and Mackay, W.S. Agents.-T. Clerk.-F.H.)

No. 172. JOHN HAY, Pursuer, v. THOMAS SKEXE, Defender.

Poor-Law-Settlement-Pauper-Relief-A

Scotchicoman ma ried an Englishman, and soon after they separated from each othe She was found in the parish of Edinburgh, and was a parper an insane. In an action at the instance of the inspector for the paris of Edinburgh against the parish of the pauper's birth, to read that parish liable in support in future, and in relief of advanc made by Edinburgh parish, it appeared that, at the date of her mar riage, she had not acquired a settlement in any other parish than is parish of her birth; that her husband never had a settlement i Scotland; and that it was unknown whether or not he had ere acquired a settlement in England, or whether he still resided thereHeld that the parish of birth was, in the first instance, liable fo the support and relief claimed,

This was an action at the instance of the inspector of the poor for the burghal parish of Edinburgh, agains the inspector for the poor of the parish of Old Machar in Aberdeenshire. The object of the suit was to recover a sum of £7:8:7, expended for belroof of Mar garet Fowler, an insane pauper who had been found in the parish of Edinburgh, and also to be relieved on her maintenance in all time coming.

་་

Margaret Fowler was born in the parish of Ol Machar. She was married at Dundee in 1839 to William Cunningham, an Englishman. At that date she had no settlement in any other parish but in the parish of her birth. Shortly after marriage, the spouses separated from, or deserted each other, the husband going to Eng land. In 1841 her father and mother received a letter from him, dated at Plymouth, stating that he had got a situation as traveller for an "extensive firm" in the teatrade. It was not known where he now resided, nor whether he had ever acquired a settlement in England. He never had acquired a settlement in Scotland.

In July 1847, Margaret Fowler or Cunningham was a patient in the Edinburgh Royal Infirmary. She was utterly destitute, and had become insane. She was aecordingly removed to the Morningside Asylum, and remained there at the charge of the pursuer.

The conclusions of the summons were as follows:"Therefore, it ought and should be found and declared, by decree of the Lords of our Council and Session, that at the time when the said Margaret Fowler became chargeable as a lunatic pauper to the said burghal parish of the city of Edinburgh, in manner foresaid, the said parish of Old Machar was the parish of her legal settlement, and, as such, was bound to have administered parochial relief, by payment of the expense of her removal from the said Royal Infirmary to the said Lunatic Asylum at Morningside, and for her board, maintenance, and support whilst there, both for the time bygone and in time to come; and that the said Thomas Skene, as inspector foresaid, and as representing the said heritors, kirk-session, and parochial board of the said parish of Old Machar, is liable to relieve the said burghal parish of the city of Edinburgh, the managers of the parochial board thereof, and the pursuer, as inspector foresaid, and as representing them in manner foresaid, of the whole sums of money already advanced or incurred in manner before expressed; as well as to relieve the said parochial board of Edin burgh, and the pursuer as inspector foresaid, of the burden of maintaining, supporting, and boarding the before named and designed Margaret Fowler, from and after the said 30th day of June last 1849, and in time to come: And it being so found and declared, the said Thomas Skene, as inspector foresaid, and as representing the said heritors and kirk-session, and parochial board of the said parish of Old Machar, ought and should be decerned and ordained, by decree foresaid, to make payment to the pursuer, as inspector and for behoof foresaid, of the foresaid sum of £7:8:7 sterling, with the legal periodical interest of the several advances of which the same is composed, from the

The defender pleaded, that the fact of the pauper's marriage extinguished all claim against the parish of her birth; as thenceforth her settlement was the same as her husband's.

The defences did not contain any averment as to the husband's settlement, except the following:

"The defender avers that William Cunningham, by birth in England, or otherwise, according to the law of that country, sequired, and has, a settlement there."

The Lord Ordinary pronounced the following interlocutor:

"In respect that the present case relates to the burden of alimenting an insane woman, said to be the wife of a foreigner who has deserted her; and in respect her husband had no settlement in Scotland yet discovered, and that thus the question arises, how far a married woman, who has been deserted by her husband, or may survive him, is entitled to claim a maintenance from the parish of her maiden settlement, under the circumstances before specified; and that it does not appear that this question has ever been decided by the Supreme Court, though it is manifest, from the probability of its frequent occurrence in practice, that it should be authoritatively settled as soon as possible-makes avizandum with the cause to their Lordships of the Second Division; and appoints the parties to prepare short minutes of debate on their respective pleas, to be lodged and interchanged within fourteen days from this date; and to be revised, printed, and boxed, within eight days thereafter, in order that the same may be reported."

At advising,

Lord Justice-Clerk.-The facts in this case are very important, and my opinion is confined to the precise question which these facts present. It may be a question likely to occur in many instances; but still it is one raised here upon one peculiar state of the facts.

1. The pauper is a native of Scotland.

2. She was born in the parish of Old Machar, and, there is no doubt, had a right to relief against the parish of her birth, 3. She has been deserted by the person she married.

4. That person is an Englishman-a foreigner to the poorlaw of this country; and, though capable of acquiring a settleLent in Scotland, it is not averred that he ever did acquire a Scotch settlement.

5. She is insane; so that it is not enough to give her temporary relief and send her to find out her husband, and so claim support from him, or the parish of his settlement in England, if he any has. She is incapable of acting for herself, One or other parish must maintain her.

6. She is found in the parish of Edinburgh-first ill in the Infirmary-then is insane.

The parish of Edinburgh is clearly bound to give interimchef, and to make provision for her in the first instance. But f she has a right of support from any other parish, then Edinurgh may proceed in relief against the parish against which she as a right of maintenance.

The parish of her birth maintain that her original right of maintenance is lost-as I understand their plea-absolutely and or ever lost. To establish that defence and it is out of their fence that all the questions in the case truly arise-the parish t birth must state facts leading practically and usefully to a eneficial result. They are to defend themselves by the plea, hat the woman has lost her right of maintenance originally benging to her against their parish. That is the proper state of e question. Edinburgh goes to the parish of birth. The roman, it is admitted, had herself acquired no settlement in cotland-else when in any other parish, which is bound to lieve and free the parish of birth. Hence the parish of birth = to establish that she has lost her claim against them. And at will often be a good defence; but it is a good defence by tablishing available and practically useful facts, which estaish a clear right against another parish. It is said the woman

is married: Well, to whom? If to a party having a settlement in Scotland, then there is a set of available facts set forth leading to a right of maintenance from the husband's parish. But unless the facts set forth prove, on the part of the woman, an acquired right which gives her a claim against another parish, the defence is not complete, and the allegations are practically of no beneficial result to the pauper. The question substantially is, has the pauper lost her right against the parish of her birth. Now, the parish of her birth, while, in general, they aver, as they might equally do as to any other Englishman, that he has, or must have, a settlement in England, cannot tell where he is, nor point out any parish in England against which the pauper or Edinburgh could proceed. In Scotland it is clear that he has no settlement. Now, I need not consider, in the actual state of the record, whether the whole inquiry as to this matter is to be, in such a case, incumbent on the parish of birth. If necessary, I should say it was, for it is part of their defence-which, as I hold, must be, that the woman is married to a man who has a settlement. If that latter allegation is not added, the defence is not complete, for it does not shew a practical result. Neither need I inquire what difference there may be between this defence when stated as to an Englishman, or as to a foreigner--if the defence does not shew a right of maintenance competent to the pauper, or those maintaining her in the interim, against some one, or some party or other. These questions I omit here, for, in the state of the record, the pursuer has made inquiry--has done enough to satisfy any onus, if any onus ever was incumbent on him-and avers entire ignorance of the husband, except that he, being an Englishman, had no settlement in Scotland, and has deserted his wife. And the defenders have been able to point out no parish in England-they first bringing out in their defences, from inquiries at the father-in-law, the letter in 1841.

Hence, in the actual state of the record, as both parties present it to us for judgment, there is no right shewn to exist in the pauper to maintenance against any other party or parish (laying aside at present any claim against her parents). In this state of things, the question arises, is the defence of the parish of Machar complete, so as to extinguish their original liability. I apprehend not. The essence of the defence, when stated by the parish of birth, is, 'The woman has lost the settlement of birth, and her right of maintenance against us, because she has gained another, which is liable to her.' For instance, in one case, the defence is, 'She has gained a settlement by industrial residence in another parish, which has profited by her labour, and where she took up her abode, and maintained herself. In another, She has married a man who has another settlement than our parish-which at once became hers-and thus she has another settlement.' There is really, in regard to the substantial result of relieving the parish of birth, and of extinguishing their obligation, no difference between the defence which is founded on the party himself or herself having acquired another settlement by industrial residence--and the defence founded on the marriage of a female; for the essence of the defence in the latter case is equally the existence of another settlement-viz. the husband's-and that there is another party bound to maintain her. It is not in the mere relation of marriage alone, independently of the effect of that relation in regard to settlement under the poor-law, that the settlement of the husband becomes the settlement of the wife. No doubt, considering the nature of that relation, it was natural to expect that such should be the case. But still it is the result of the interpretation actually given to the poor-law. Originally, no settlement was created except one by birth or industrial residence. And it is an addition to, or interpretation of the law, so constituted, which makes the husband's settlement that of the wife. But it might have been otherwise settled-especially in the event of desertion.

Now, the rule thus expressed in various terms by the different writers, is, I apprehend, practically this-that the parish of birth is free by pointing out a parish in which the wife has a settlement by reason of her husband's rights in, and claims on that parish. It is not simply by saying, you are a married woman, that the parish of birth is free: It is by the additional and available fact, that the husband has a settlement which is good to his wife, and which has truly become hers, that the parish of birth makes out a defence which relieves them.

Some of the expressions used by some of the writers on the poor-law are quoted as if they implied, that during, and by reason of marriage, co ipso, the wife's original settlement was necessarily so extinguished, that it was for ever lost. And if the