Stewart & Co. v. Gordon. Moir was for the advocator (defender). The COURT were clearly of opinion that the interlocutor of the Sheriff-substitute was right, and that the pursuers had wholly failed in proving their case, and pronounced the following interlocutor, in which the material parts of the case are set forth :"The Lords having advised the record and proof in this cause, and heard counsel for the parties, advocate the cause, alter the interlocutors complained of; find that the forty waggon cast-iron wheels, for the value of which this action was instituted in the Sheriff Court of Glasgow, were sent by he respondents to the station of the Glasgow and South Western Railway Company at Irvine, to be forwarded by them to Glasgow, in order to be from thence transmitted to Dundee to Keay and Rattray, to whom they were to be furnished; find that the said forty waggon wheels are entered in the book of said Company at Irvine, as sent by the pursuers to Keay and Rattray at Dundee, which place is entered in saidbook in the column headed 'residence' as the residence of the said Keay and Rattray, whose names are in the column headed consignees'; find that in the said book, Glasgow is entered in the column under the head of station to be delivered at;' find that the way-bill of the train by which the said wheels were forwarded to Glasgow has not been produced, and that there is no direct evidence as to the entry in the said way-bill applicable to the said wheels; find that there is no proof as to the delivery to any one at Glasgow of the original address sent along with the goods to the Irvine station, or that such address was taken on by the guard at Glasgow; find that there is no proof that any address with the destination Dundee' was given by the Railway Company to the defender or any of his clerks or carters; find that the Glasgow inwards book, which is made up at Glasgow the morning after goods arrive from the way-bill, contains under the column for the residence of the consignee the name Glasgow,' and that Dundee' is not in that book; find that in the delivery book, made up by the Railway Company at Glasgow for the wheels which they sent out with the defender's carts, there is no address or destination entered opposite to the names of Keay and Rattray, the consignees, nor does the book contain after the signature of Richard Dull who signs such receipt, any statement to prove for what party or for what port 6 the said Richard Dull took delivery; find that the said wheels were Feb. 4. 1852. taken to the wharf at Port Dundas, where vessels for Kirkaldy lay, Stewart & Co. and were received by Dull, who signs said receipt as for a Kirk-v. Gordon. aldy vessel; find, that although received by him as for Keay and Rattray, they were entered in the ship's manifest as for one Alexander M'Donald at Kirkaldy, and were in whole or part delivered to him; find it not proved that the error of sending them to the Kirkaldy wharf, and without any destination in the delivery book signed by Dull arose from any mistake on the part of the defender or those for whom he is responsible, or that he or his men ever received any address with the destination of Dundee' for the said wheels; therefore sustain the reasons of advocation, assoilzie the defender, and decern; and find him entitled to the expenses incurred in this Court and in the Inferior Court; allow accounts hereof to be given in, and remit to the Auditor to tax the same, and to report." Gibson-Craigs, Dalziel and Brodie, W.S., Agents for the Advocator, (Defender). John Rogers, S.S.C., Agent for Respondents (Pursuers). In deciding this case, the Judges took occasion to complain of the excessive length to which the reclaiming petition and subsequent minute of debate, allowed by the Sheriff, extended. These papers had been already remarked upon; they were not required at all; and their Lordships had no difficulty in adopting the views of the Sheriff-substitute, who had decided the case without the aid of such written pleadings. The Lord Justice-Clerk remarked that, as the Act of Sederunt of February 1851 requires the Sheriffs to pronounce articulate findings on the material facts on which they rest their judgment, he could not see why, in cases of proof, the Court should not, by another Act of Sederunt, prevent a reclaiming petition, and require the Depute to review on the materials on which his Substitute's judgment was founded, especially as the review in the Court of Session is now so easily obtained. SECOND DIVISION. CALEDONIAN RAILWAY Co. v. CAMPBELL. Process-Advocation-Sheriff-Court-Interlocutor. No. 161. Feb. 5. 1852. THIS was an advocation from the Sheriff-Court of Glasgow. The Caledonian original action was brought against the Caledonian Railway Com- v. Campbell. Railway Co. Caledonian Railway Co. Feb. 5. 1852. pany by Campbell, for the recovery of the value of a portmanteau lost at the Carstairs Junction. A proof was led in the SheriffCourt. The Sheriff, reversing the decision of the Sheriff-Substitute, decided against the Railway Company. His interlocutor contained no findings in regard to the facts. v. Campbell. The Railway Company advocated, and the case was reported by the Lord Ordinary, under the late statute, to the Inner House. The case was called to-day in the Single Bills. Baillie was for the Advocators, and T. Mackenzie for the Respondent. The COURT remitted the case back to the Sheriff, "with instructions to draw up special pleadings in point of fact, on which his interlocutor is founded, and to report the same quam primum to the Court, these findings being required by the Act of Sederunt 15th February 1851. Hope, Oliphant and Mackay, W.S., Advocators' Agents. No. 162. Feb. 5. 1852. Jaffray v SECOND DIVISION. JAFFRAY v. DUNCAN. Process-Bill-Chamber-Jurisdiction. This case came before the Court on a report by the Lord Ordinary on the Bills (Cowan.) It appeared that the furniture of the suspenders (Jaffray) had been poinded, and a warrant for sale obtained. When the furniture came to be sold it was discovered that it had been removed and other furniture of an inferior description substituted in its place. The respondent (Duncan) with the concurrence of the Procurator Fiscal, presented a petition and complaint to the Sheriff-substitute against the suspender, in terms of the 1 and 2 Vic. 114, § 30, which is as follows:-" If any person shall unlawfully intromit with or carry off the poinded effects, he shall be liable, on summary complaint to the Sheriff of the county where the effects were poinded, or where he is domiciled, to be imprisoned until he restore the effects, or pay double the appraised value." After proof led before the Sheriff, the suspender was found guilty, and ordained to be imprisoned until he restored the goods, or paid double the appraised value. The present note of suspension and liberation was presented on the ground of certain informalities in the procedure before the Sheriff. The respondent pleaded that the suspension was not competent in this Court, and should have been presented to the Feb. 5. 1852. Court of Justiciary. Jaffray v. The Lord Ordinary on the Bills (Cowan) reported the point to Duncan. the Court. The COURT repelled the plea, and sustained the competency of the application. Ogilvy appeared for the suspender, and the Solicitor-General for the respondent. John Walls, SS.C., Suspender's Agent. Tait and Crichton, W.S., Respondent's Agents. SECOND DIVISION. CUTHBERTSON and OTHERS v. YOUNG. Right of Way-Obstruction-Acquiescence and Homolgation. No. 163. This case (see ante, pp. 226 and 286) now came before the Feb. 5. 1852. Court, on a motion by the defender to sustain a plea set forth in Cuthbertson, his defences, that the pursuers were now barred, by acquiescence &c. v. Young. and homologation, from disturbing certain obstructions erected on the road in question by the defender. E. Gordon (with whom Dean of Faculty) for the defender. The defences set forth, that, in the year 1827, a wall was erected which had the effect of shutting up any road the public might have. The defences state that "these operations were carried on openly, and were well known to all the inhabitants of Burntisland, Kirkton, Starleyburn, and Aberdour, and no objection or challenge was made by any person ;" and the plea founded on this statement is, "that the defender and his predecessors having, without challenge or dispute, been allowed to erect the sea wall above mentioned, nearly thirty years ago, and to incur the great expense of those erections, the public and all persons concerned are now barred by acquiescence and homologation, from disturbing the same.' A. Rodgers, 10th July 1827; F. C. 3 W. and S. 260; Marq. of Abercorn, 20th May 1820, Bell's Princ. § 946; Lord Melville, 29th May 1830. No distinction can be drawn between the acquiescence necessary in the case of a private individual and the public. It is not necessary that any active acquiescence should have been given by the pursuers. It is sufficient they have seen an expensive obstruction going on without interference. LORD JUSTICE-CLERK. There is no sufficient averment on record to support the present plea. The cases referred to, and the Feb. 5. 1852. observations of Mr Bell, apply where parties have consented to an obstruction being erected. Cuthbertson, &c. v. Young. The COURT found "that the record does not contain averment sufficient to support the above plea, and to this extent repel the defences, with the expenses, of the discussion." Wotherspoon and Mack, W.S., Pursuers' Agents. No. 164. Feb. 5. 1852. Kilgour v. SECOND DIVISION. KILGOUR v. BROWN and SHAND. This was an advocation from the Sheriff Court of Fife. The action was raised by Kilgour to recover damages, on account of Brown, &c. injuries done to his sheep by the dogs of the defenders. The Sheriff found for the defenders, and dismissed the action. Kilgour advocated. No. 165. Feb. 5. 1852. Anderson, &c. v. Laing. The Lord Ordinary (Colonsay) by his interlocutor "repels the reasons of advocation, and remits the cause simpliciter to the Sheriff;" but his interlocutor contained no findings of facts. On the case being called to-day, the COURT remitted to the Lord Ordinary to pronounce special findings, in terms of the 40 § of 6 Geo. IV., c. 120; the case to be thereafter transmitted to the Court to be advised upon the reclaiming note, and The LORD JUSTICE-CLERK observed that it was not only necessary there should be findings of the facts proved by the pursuer in evidence; but that, when he had failed in his proof, findings should be given, stating what had not been proved. James Souter, W.S., Agent for Pursuer. T. & R. Landale, S.S.C., Agents for Defenders. OUTER HOUSE. BEFORE LORD RUTHERFURD. ANDERSON and MANDATORY v. LAING. Process-Statute 13 and 14 Vict. c. 36-Date of Summons. In this case no process, was pleaded by the defender, on two grounds, (1.) that the date following the words at the close of the |