to these issues; but he proposed a counter issue, raising the question, 'Whether the said deceased Alexander Rob discharged or abandoned the said claim against the defender?' Lord Kinloch was for refusing to allow the counter issue, the averments appearing to him too scanty to support so serious a plea as that of discharge.

The Court to-day took the same view, and disallowed the counter issue. WARDEN AND SMITH V. BRITISH LINEN COMPANY.-Feb. 13.

Bill of Exchange-Forgery-Adoption.

The bank has charged the suspenders as the acceptors of a bill drawn upon them by James Robertson, farmer, Mains of Letham, in Forfarshire. The bill is dated 28th February 1862, and was payable six months after date. On the 24th May 1862, the chargers' agent at Arbroath who had discounted the bill wrote to one of the suspenders, Mr John Smith, Bankhead of Lour, asking whether arrangements had been made in reference to the estate of the drawer, Robertson's father-in-law, so as to retire the bill. Mr Smith did not answer this letter, and it is averred that he communicated it to the other suspender. On the 22d August Robertson absconded, and immediately after it was reported that he had been apprehended on a charge of forgery. Three days after, the suspenders intimated that their signatures to the bill charged on were forged. The suspenders proposed an issue to try the question of forgery, and the chargers proposed a counter issue, to the effect that the suspenders adopted their signatures to the bill.

The Court, by a majority, disallowed the counter issue, holding that there were no sufficient allegations of adoption in the record, the only specific allegation on record, in addition to the general allegation that the suspenders induced the bank to believe that the signatures were genuine, being that the letter intimating that they were acceptors, which was sent to one of them, and communicated by him to the other, had not been answered.

ROGERS v. DICK.-Feb. 19.

Reparation-Slander.

This is an action of damages for slander at the instance of the Rev. Charles Rogers, residing in Stirling, LL.D., and chaplain at Stirling Castle, against John Dick, Esq. of Craigengelt, and residing in Stirling. The following issues, which sufficiently explain the nature of the case, were adjusted:

1. Whether, on or about the 14th of October 1851, the defender, for the purpose of getting the pursuer dismissed from his situation as chaplain at Stirling Castle, wrote and transmitted to the Principal Secretary of State for War a letter of and concerning the pursuer, in the terms set forth in the schedule hereto annexed; and whether in said letter the defender falsely, calumniously, maliciously, and without probable cause, represented the pursuer as having neglected his clerical duties in the pursuit of objects of a secular description, incompatible with the proper discharge of the duties of his office as chaplain at Stirling Castle, and as having attempted to desecrate parish churches by an illegal act, to the loss, injury, and damage of the pursuer?

2. Whether, on or about 7th November 1861, at Stirling Castle, and

in the presence and hearing of the Reverend George Robert Gleig, Chaplain-General, Major Elton, Commander of the 22d Depot Battalion at Stirling Castle, and Major J. M'Bean, 92d Royal Highlanders, Mr John Dick, jun., speaking for the defender, who was then and there present, and by the instructions of the defender, given maliciously, and without probable cause, did make a false and calumnious statement, to the effect that the pursuer had, some years ago, appended to the prospectus or preliminary notice of a society, originated by himself, a list of names of persons as members thereof, without any authority from such persons, to the end that he might collect money under the pretext of improving the town of Stirling, and thereafter transfer the same into his own pockets; that he had raised L.40 in this way; and that "where the money now is, Dr Rogers" (meaning the pursuer) "knows best," meaning thereby that pursuer had been guilty of fraud, to the loss, injury, and damage of the pursuer?

3. Whether, time and place aforesaid, and in the presence and hearing of the persons foresaid, the defender falsely, calumniously, maliciously, and without probable cause, stated that the pursuer had appropriated to his own use about L.60 of the Wallace Monument Funds, and that he was now raising money from the landowners, clergy, and others throughout the country, at 7s. 6d. each, to form the funds of a Churchyard Improvement Society, for the ostensible purpose of levelling all the churchyards in Scotland, but that his (the pursuer's) object was to do with these funds as he had done with the moneys of other societies, meaning thereby that the pursuer had been guilty of fraud, and intended to commit fraud, to the loss, injury, and damage of the pursuer?

4. Whether, time and place aforesaid, and in the hearing of the persons foresaid, the defender falsely, calumniously, maliciously, and without probable cause, stated that the pursuer had, during the night, thrown down some walls attached to burying-places at the High Church of Stirling, and that this proceeding of his had involved the town of Stirling in an action which had cost the burgh about L.400; or did falsely, calumniously, maliciously, and without probable cause, make statements of the like import and to the like effect, to the loss, injury, and damage of the pursuer?'

Damages laid at L.5000.

With regard to the second issue, the Court were of opinion that the averments on record were generally so loose and peculiar that they were hardly sufficient to warrant the proposed issue; but as the defender did not object to the issue on this ground, their Lordships were not disposed, ex proprio motu, to disallow it. The defender might have good reason for wishing it not to be disallowed.

The Lord President observed as to the last issue, that while he was of opinion the issue in question contained slanderous matter as against the present defender, it might have borne a different construction if directed against a layman. In like manner, an allegation that a layman had gone a-fishing on Sunday might not be slanderous, whilst the same statement as to a clergyman would undoubtedly be so,-in Scotland, at any rate.

SECOND DIVISION.

Pet., JOHN KENNEDY.-Jan. 27.

Process-Citation.

The petitioner some time ago raised an action against a debtor resident in England, and proposed to found jurisdiction against him by arresting funds belonging to him in the hands of a party in the island of Lewis. It appears that in that island there are no messengers-at-arms, and accordingly the Court, on the report of the Lord Ordinary on the Bills, on 19th June 1862, granted warrant to sheriff-officers in the island to execute the arrestment, jurisdictionis fundanda causa. The defender having died, an action of transference has been raised against his representatives, upon which it is necessary to use arrestment to found jurisdiction against them. The Court to-day, on the report of the Lord Ordinary on the Bills, granted warrant in the same terms as on 19th June last.

Ado., M'CULLOCH OF ARDWALL v. THE DUMFRIES AND MAXWELLTOWN WATER COMMISSIONERS.-Jan. 29.

Interdict-Property-Privilege of Water.

By the Dumfries and Maxwelltown Water Works Act, 1850 (13 and 14 Vict., cap. 34), the respondents, as the Commissioners of said Water Works, were empowered to make the said works, for the purpose of supplying the royal burgh of Dumfries, and burgh of barony of Maxwelltown, and the suburbs of those burghs, with water from Lochrutton Loch, in the Stewartry of Kirkcudbright, and the streams issuing therefrom and adjacent thereto; and by clause 18th of that Act, to make and maintain the proposed works through the lands delineated on the plans, and described in the book of reference, according to the levels defined on the sections, and to enter upon, take, and use such of the said lands, waters, and streams as shall be necessary for that purpose.' By clause 21 and 22 of the said Act, it is, inter alia, provided, that the powers of the Commissioners for the compulsory purchase of lands, waters, and streams for the purpose of the Act, or for the compulsory acquisition of any right therein, shall not be exercised after the expiration of five years from the passing of this Act.' The respondents, by virtue of the powers conferred on them by the said special Act, entered upon and took possession, for the purposes of the Act, of certain portions of the estate of Hills, adjoining Lochrutton Loch, then belonging to the advocator's father, and now to the advocator, as heir of entail, who is also a joint proprietor of Lochrutton Loch. In December 1850, and June 1851, the respondents, in pursuance of the provisions contained in the said special Act, and other Acts incorporated therewith, intimated to the advocator's predecessors in the estate of Hills, that part of the works authorized to be made by them would be constructed in, on, and through lands, waters, and streams in Lochrutton parish, belonging to the then proprietor of Hills, and that the respondents required to purchase, take, and use certain portions of the said lands, and certain servitudes, rights, and privileges in and over the same lands, waters, and streams on the said estate of Hills; and along with the said notices or schedules of intimation which

described the extent of land, and the specific servitudes, rights, and privileges required by the respondents for the purposes of the Act, there were delivered to the proprietor of Hills plans on which the said portions of lands, servitudes, rights, and privileges were delineated. After these intimations, and when the said water works had been completed, and were in full operation, supplying the foresaid burghs and suburbs with water, the respondents on the one part, and the parties (including the advocator's predecessors in the Hills estate) interested in Lochrutton Loch, on the other part, by virtue of the powers given to them by the said special Act and the Lands Clauses Consolidation Act, entered into a submission in 1853 to Mr James Horne, land valuator, Edinburgh, who was thereby empowered to fix and settle by final decree-arbitral the amount of purchase-money and compensation to be made to the said parties interested in Lochrutton Loch, in respect of the said operations of the respondents, and the damages sustained, or to be sustained, by the said parties, and each of them, in the execution of the said undertaking and works therewith connected. The arbiter having accepted and acted on said submission, pronounced therein a decree-arbitral, by which he, inter alia, found the respondents liable in payment to the judicial factor on the estate of Hills of certain sums-1st, For the portion of that estate taken by the respondents for their works; 2d, For the wayleave or privilege of laying the pipes connected with the undertaking through the lands in possession of the judicial factor; 3d, For the right or privilege of taking water from the Lochtown Burn, and any contingent damage arising from the exercise of that right; 4th, For the right or privilege of taking water from Lochrutton Loch, but under this declaration, that if the respondents 'shall take or draw from the said loch more than eighty-three cubic feet of water per minute for the purposes of their works, then, and in that event, the aforesaid parties of the second part (viz., the proprietors of Lochrutton Loch) are not by this award to be prevented from claiming from said commissioners (viz., the respondents) compensation for such increased abstraction.' In terms of another provision of the said decree-arbitral, conveyances of the aforesaid portion of the lands of Hills, and of the servitude rights and privileges referred to in the decree, were, in 1854, executed by the said judicial factor on the Hills estate, and delivered to the respondents. Under the disposition thus delivered by the said judicial factor to the respondents, there was conveyed to them, according to the true intent and meaning of the said Act, the servitude right or privilege of taking or drawing water from Lochrutton Loch to the extent of eighty-three cubic feet per minute,' but subject to the declaration, that if the commissioners shall take or draw from the said loch more than eighty-three cubic feet of water per minute for the purposes of their works, then, and in that event, we (viz., the proprietors of Lochrutton Loch) and our foresaids are not by this disposition and conveyance to be prevented from claiming from our said disponees and their foresaids, compensation for such increased abstraction,' etc. By virtue of the statutory powers, the respondents had, prior to the foresaid dispositions, entered into possession of the lands and servitudes, thereby conveyed, and, in particular, had laid a 12-inch pipe into Lochrutton Loch, and continued the same to a well or tank about 340 yards from the commencement of the pipe, from which well or tank the water was conveyed by a 9-inch pipe for

400 yards to a second well or tank provided with a sluice, within the land absolutely acquired by the respondents, from which second well or tank the water was distributed through the respondents' filters, and collected in their distributing tank, also situated within their own ground, from which distributing tank the water passed by a 9-inch pipe for about 154 yards through the petitioner's property of Hills, on its way to Dumfries. The present application for interdict was made by the advocator on the averments that the respondents had made arrangements, and intended to enter, with contractors and others, on the foresaid pipe-track, through the petitioner's land of Hills, not for the purpose of inspecting, repairing, or renewing the pipe therein already laid, and hitherto used by them for the purpose of the said undertaking, but for the purpose of uplifting and removing the present pipe of nine inches in diameter, and replacing it with another pipe of twelve inches in diameter, thereby obtaining an enlargement and extension of the right of servitude on the said pipe-track, and of the waters flowing from the said loch and streams not authorized by the foresaid statutes, nor by the submission, decreet-arbitral, and conveyances following thereon, to the great hurt, damage, and loss of the petitioner, unless prevented; and the petition for interdict, which was presented to the Steward-substitute of Kirkcudbright, concludes, 1st, for interim interdict against the respondents; or, 2d, for interdict against them until it can be ascertained by a remit to a person of skill in such matters, or by other competent mode, what may be the effect' (having regard to the finding in the said decree-arbitral as to the quantity of water to be taken from the said loch and streams) of the respondents' intended operation, and thereafter to declare the said interim interdict permanent. It was admitted by the respondents that they intend to uplift and remove a 9-inch pipe extending from their distributing tank towards Dumfries, and passing for about 154 yards through the petitioner's said lands, and to replace it by a 12-inch pipe; but denied that such operation is intended or calculated to abstract more water from the loch than eightythree cubic feet per minute conveyed to them; and maintained that the operation is within their statutory and stipulated rights, and not injurious to the advocator, who has therefore neither an interest nor a right to object to it. The Steward-substitute entertained the interdict, and before answer remitted to a person of skill to inquire and report as to the character of the respondents' intended operations. The Steward of Kirkcudbright, holding that the petition did not set forth relevantly any case of excess of the respondents' powers under their Act, recalled the interlocutor and dismissed the petition. To this judgment the Court of Session, on a note of advocation, adhered.

HILL AND OTHERS v. THE HERITORS OF THE PARISH OF

COUPAR-ANGUS.-Jan. 30.

Property Churchyard.

In this process of suspension and interdict, raised by the deceased David Hill, of Hill Garden, and now insisted in by his representatives, the complainer sought to interdict, prohibit, and discharge the respondents from proceeding to occupy and use, for the purposes of building, the burying-ground in the churchyard of Coupar-Angus, attached to the

VOL. VII.-NO. LXXV. MARCH 1863.

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