Lord Cuninghame.-I consider the objection taken to the verdict in this case, to be hypercritical, and altogether unsound. The question put to the jury was, in substance, whether the bridge made by the railway company over a certain stream, was insufficient, whereby the water was obstructed, and poured down in a flood on the pursuer's premises, to his loss and damage? There were not two questions put--but the single inquiry, whether the bridge was built insufficiently, or on a wrong plan, and thereby occasioned damage? The jury answer the question directly, and in the affirmative, by finding that the bridge was insufficiently built; and assessed the damage at £200. The plain and unmistakeable meaning of such a finding was, that the bridge fell from insufficiency, and that the pursuer THEREBY suffered damage to the extent of £200. No Judge can misunderstand such a verdict.

Possibly there may be cases where the Court, even after lapse of the statutory periods for exceptions and motions for new trials, might refuse to give judgment on a verdict, as palpably defective, or extraneous and nonsensical. But the present is plainly not such a case.

Verdict applied for Pursuer.

Act. Inglis, Macfarlane; Horne and Rose, W.S. Agents.-Alt. Lord Advocate (Rutherfurd), Craufurd; Dalmahoy and Wood, W.S. Agents.-L. Clerk.—(F.H.)

17th July 1850.

FIRST DIVISION.

No. 252.-FORBES, Pursuer, v. DUNBAR, Defender. Expenses Jury Cause-A pursuer obtained a verdict with expenses. Held that he was entitled to recover from the losing party the expense of printing documents to instruct counsel at the trial.

The pursuer obtained a verdict with expenses. There was a charge in his agent's account for printing documents for the use of counsel. The auditor disallowed the charge; and allowed in its stead the sum of £17: 18s. for copies of the documents, as adjusted between the agents.

There were various objections to the auditor's report, which were all repelled except one as to the restriction of this item to £17: 18s., on which the Court remitted to the auditor

"in order that he may explain to the Court the special grounds on which he has proceeded in restricting that part of the expenses, to which the said item refers, to the said sum of £17:18s."

The auditor reported as follows:

"Ever since the original establishment of the Jury Court, it has been the uniform practice, in the taxation of judicial expenses awarded in jury causes, to allow the expense of written copies only of such documents as are necessary for the sole purpose of instructing counsel to conduct the trial; and, indeed, prior to the act of sederunt of 10th July 1844, there is no instance, so far as the auditor is aware, in which the expense has been allowed, as between party and party, of printing any documents whatever for use at a jury trial. But as this rule or practice adopted by the auditor was felt to be somewhat too stringent, and as a rigid adherence to it must in many cases have led to a considerable increase of expense, from both of the parties making several copies of the same documents at a cost exceeding that of having them printed, a partial relaxation of it was introduced by the act in question, which provides, in section 2d, that the charges for copies of any papers or documents which may be necessary for the instruction of counsel to conduct the trial, shall be stated in the account immediately before the fees to counsel,' &c.; and that, as there may be many papers or documents which are necessary for the instruction of counsel on both sides, or which it may be necessary or proper should be laid before the judges and jury, it may be competent for the parties to print the same at their mutual expense, so as to avoid the expense of copies.'

"This provision, it will be observed, applies solely to cases in which the parties shall have previously arranged to have a print of documents at their joint expense. Where no arrangement

of this kind has been made, it has never been the practice to allow the expense of an ex parte print not communicated to, or made available for the opposite party previous to the trial, so as to save him the expense of copies. And, indeed, it is clear that to do so would necessarily entail upon the losing party the double expense, first, of having copies made or printed for his own counsel, and afterwards of the printing of those used by his opponent.

"In the present case, there was no mutual print of papers ar ranged between the parties; and the auditor therefore felt himself constrained, both by the terms of the act of sederunt, and by the uniform practice which has preceded and followed it, to disallow the expense of printing those which the pursuer required for the instruction of his counsel, and to allow only the cost of the copies that would have been necessary for that purpose.

"It is well worthy of consideration, however, whether some course may not be devised for lessening the hardship to which a successful party is frequently exposed, from not being allowed the expense of printing documents which his counsel may have thought it indispensable to have printed, for use at the trialand that merely because his opponent had refused to unite in arranging for a mutual print, or had declined to admit into such print, the papers which were most essential for the gaining of the cause.

The Court, after consulting the Lord Justice-Clerk, who had presided at the trial, thought that the expense of printing ought to be allowed.

Expense of printing allowed.

Act. Pattison; John Murray, Jun. S.S. C. Agent.-Alt. Gordon ; Horne and Rose, W.S. Agents.-Jury Clerk.-(F.H.)

17th July 1850. FIRST DIVISION.

No. 253.-A. D. R. C. W. BAILLIE, Petitioner. Entail-Improvements-Construction-Held that a sum of mong expended by an heir of entail in possession, for embankments tud caul-dykes on the river Clyde, which flowed past his lands, was chargeable on the fee and rents of the estate under the Ental Amer ment Act-there being a report by men of skill to the effect the the operations in question were necessary for the drainage of the

The petitioner is an heir of entail in possession of the estate of Lamington.

The object of this application, which was presented under the Entail Amendment Act of 1848, was to charge the fee and rents of a portion of the estate, with the statutory proportion of a sum of money expended on improvements of the nature of those contemplated by the Montgomery Act.

Mr. Robert Ainslie, W.S., to whom the application had been remitted by the Lord Ordinary, drew the attention of the Court to a sum of £56:14:10, expended in embankments and caul-dykes on the river Clyde. The terms of his report on this point were as follows:

"I have no doubt that these operations were very essential to the drainage of the estate, and to the protection of it against the inundations of the river; but as, in the case of Lord Kinnaird, the Court refused to sustain, in a similar application, the expense of embankments made to prevent the encroachments of the river Tay upon his estate, I have hesitated to recommend the charge here. While I admit that the cases are not altogether analogous, I must explain, that in Lord Kinnaird's case the claim was not made entirely under the head of 'inclosing.' It was submitted by Mr. Halket Inglis and myself, as reporters, that besides adding several hundred acres to the estate, the operations might be viewed as of the nature both of inclosing and draining, seeing that they led to the protection of the estate against the encroachments of the sea or Frith of Tay. If the Court shall hold the present embankments, &c. as falling under the same category as those of Lord Kinnaird's, then there will fall to be further deducted the above sum of £56: 14:10."

The Lord Ordinary remitted this matter for inves

tigation, to Mr. Stewart Bayley Hare, of Calderhall, factor to Lord Hopetoun, and to Mr. John Dickson, farmer, Saughton Mains. These gentlemen reported as follows:

"We, of this date (June 20, 1850), visited Lamington; and having inspected the farms lying on the banks of the river Clyde, and examined the embankments and caul-dykes referred to in Mr. Ainslie's report, we beg leave to report to your Lordship, that the most valuable part of Mr. Cochrane Baillie's lands, in the parish of Lamington, consists of a broad haugh or valley, bounded, for between two and three miles, by the river Clyde; and a great portion of the land is on a level with that stream. The banks of the river are quite low; and, from what we observed on the bank opposite, it is evident that the water, when in flood, comes down with much force and in great volume, and, if not prevented by artificial means, would entirely overflow a large part of the land in its vicinity. On the Lamington side, great expense has been incurred in raising an embankment throughout the whole course of Mr. Baillie's property, to prevent the influx of the water of the river on the arable land; and it is to protect this embankment that the caul-dykes, referred to in Mr. Ainslie's report, are made, which, by protecting the face of the river bank, prevent the foundations of the embankment being undermined. In these circumstances, it is evident that any attempt to drain the farms on the banks of the river would be worse than useless, if the river itself was not to be kept out; and farther, from the fact of the only means of draining the land being with an outfall to the river, the drains could not be made to act properly, owing to the flatness of the ground, except by an embankment, with sluices at the end of the main drains, capable of shutting when the river is in flood, and opening for the exit of the drainage water when the stream resumes its usual level. "On the whole, then, the reporters have no hesitation in stating to your Lordship, that, in their opinion, Mr. Baillie's operations for embanking the Clyde have been judiciously planned and carefully executed; and that they are indispensable for the drainage of the adjacent lands."

The Lord Ordinary having reported the point,

Lord Justice-General.—I rather think that there is a clear disfinction between this case and that of Lord Kinnaird The object in that case was, to take in large portions of land from the Tay. Here, the operations in question are necessary for drainage. Lord Mackenzie.-I am of the same opinion, and see no difficulty in the case.

The other Judges concurred.

The following interlocutor was pronounced :

"Find that the said sum of £56: 14: 10, expended in embanking the river, should be allowed as part of the expense of draining the land, in respect it appears, from the report of the inspectors, that the erection of the embankment was necessary for effecting the drainage, and an operation accessory to it; and, with this finding, remit to the Lord Ordinary to inquire farther, and to report."

Lord Ordinary, Robertson.-Act. Walker; Menzies and MaConochie, W.S. Agents.-L. Clerk.—(F.H.)

17th July 1850.

FIRST DIVISION.

No. 254.-WILLIAM TAIT BURTON, Petitioner. Entail Amendment Act (1848)-Construction-The statute requires certain applications to be intimated by advertisement, “at least once weekly, for six successive weeks," in such newspaper as the Court should appoint-Held not necessary that a week should elapse between the last advertisement and the advising of the petition. This was an application under the Entail Amendment Act, 11 and 12 Vict. c. 36, for authority to excamb part of an entailed estate.

The 34th section of the statute provides— "That the Court, on any such petition being presented to it, in terms of this act, shall appoint intimation thereof to be made in the minute-book and on the walls, in common form, and shall also appoint the same to be publicly advertised, once in the

Edinburgh Gazette, and at least once weekly, for six successive weeks, or for any longer period the Court shall deem fit, in such newspaper or newspapers as shall be appointed by the Court."

The petition was, by order of Court, intimated for six weeks successively in the North British Advertiser. The last advertisement was on Saturday last, 13th July. The petition was enrolled in to-day's roll (Wednesday), to be disposed of in the usual manner.

The clerk of Court observed that a week had not elapsed since the last advertisement; but the Court considered that advertisement had been duly made. Act. Baillie; A. and C. Douglas, W.S. Agents.-L. Clerk.— (F.H.)

17th July 1850. FIRST DIVISION.

No. 255.-JOHN DEANS CAMPBELL and others, Suspenders, v. Rev. JOHN MORGAN and THE PRESBYTERY OF LERWICK, Respondents.

Church-Glebe, Designation of-Process-In a suspension of a decree of designation of a glebe, the Court remitted to the Presbytery to reconsider the matter, with power to adhere to the designation already made, or to make a new one.

This was a suspension of a decree of the Presbytery of Lerwick, whereby ground for a manse and glebe for the respondent Morgan, minister of Lerwick, had been designated out of land belonging to the complainers.

The ground of suspension chiefly insisted in was, that the Presbytery had not observed a due discretion in the exercise of their statutory powers; that part of the land so designated was not arable, and was "incorporated acres." It was averred that the designation in question would press with peculiar and unnecessary hardship on the complainer Campbell, proprietor of the lands of Leog, out of which the designation had partly been made.

The Lord Ordinary, after considering a report by the sheriff-substitute of Lerwick, refused the note of suspension, and subjoined to his interlocutor the following

"Note. This does not appear to be a case for the interference of the Court. It is very possible that the designation by the Presbytery has not been in all respects judicious; and, looking merely at the plan in process, the Lord Ordinary rather inclines to this opinion. But he has been unable to find authority for interfering, on such grounds, with what seems to have been a legitimate exercise of the power of the Presbytery under the statute, in designing and setting apart the lands in question as a glebe for the minister of Lerwick. It was not seriously contended in debate, that the proceedings of the Presbytery have been in any respect ultra vires or irregular, or that lands have been included in the designation of a description not liable to be set apart as a glebe. Mr. Bell's report, indeed, is conclusive upon the point, that the portion of the lands of Leog which has been designed, is arable; that it has not been in any respect laid out or used as policy, and that there is no appearance of its having been ever intended for anything else than agricultural purposes.' The report farther describes it as a separate field, and the boundary walls by which it is surrounded as drystone dykes in bad repair. It contains a byre, but neither dwelling-houses nor gardens. In these circumstances, there is no room for the pleas put on record, that the subject in question ought not to have been included in the designation, being 'planted and dyked enclosure,' or 'incorporated In short, the case of the suspenders has been mainly rested upon the hardship and inconvenience of the proposed arrangement to the proprietor of Leog: and the remedy suggested was, that the entire glebe should be designed either from Bruce's land of Twagoes, or from the property of Miss

acres.

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