Mar. 11. 1852. The General of Inverkeith ing. The proceedings under this petition having been terminated in favour of the petitioners with a finding for their expenses, an acPrison Board count of their expenses was lodged, and remitted by the Court to v. The Burgh the Auditor to tax. In February 1851 the Auditor reported "that the charges made in the account are correctly stated as to their amount, at the sum of L.32: 17: 8 sterling, whereof the sum of L.4 10: 8 sterling consists of charges for extrajudicial correspondence between the agent for the General Prison Board with the town-clerk of the burgh of Inverkeithing, prior to presenting the application to the Court for an order to lay on and collect the requisite assessment under the Prison Act; the sum of L.18, 17s, sterling, consists of the proper judicial expenses of the said application and procedure thereon; and the remaining sum of L.9, 10s. sterling, consists of charges for correspondence and other trouble occasioned by groundless objections on the part of the respondents, to the principle of assessment, and afterwards by applications for indulgence in the payment thereof." In a note the Auditor stated that in all ordinary cases a finding of expenses in favour of either party, is held as covering only the proper judicial expenses incurred in the litigation or discussion. "The present case is certainly an extremely favourable one for the claim made by the petitioners, in so far at least as regards that portion of the extrajudicial expenses which was incurred after the petition was presented. The proper course for the petitioners to have adopted in the circumstances, would (as it appears to the Auditor) have been to come and make it, at the outset, a condition of the delay and indulgence granted, that the respondents should pay all the extrajudicial expenses that might thereby be occasioned; an arrangement of that kind would, of course, have warranted the allowance of such expenses ex pacto, as might not have been exigible ex lege. But as it was not followed, the Auditor did not feel himself warranted in departing from the general rule. As to the expenses incurred before the petition was presented, the Auditor can see no ground whatever for awarding these in the present more than in any other case." Mure for the petitioners moved that the extrajudicial expenses should be allowed. We were led into writing letters to the other party with reference to objections made by the respondents that turned out to be groundless. Much expense would have been saved had the proceedings gone on in the usual way. Gordon for the respondents. There is no reason why the Prison Board should be privileged with regard to expenses. Unless the general rule be overturned, they cannot recover any extra-Mar. 11. 1852. judicial expenses; and at any rate they only ask in the prayer of the petition for the expenses following thereon. The General Prison Board v. The Burgh The COURT held that § 46 of the Act did not lay down any of Inverkeithrule as to expenses in this case. The Prison Board cannot re- ing. ceive greater favour than any other litigant; therefore the general rule cannot be deviated from. They therefore approved of the Auditor's report, and refused the pursuers' motion, with modified expenses. John Stewart, W.S., Petitioners' Agent. William Lindsay, S.S.C., Respondents' Agent. SECOND DIVISION. PETITION, YOUNG, for Interim Execution. Appeal-Interim Execution—Statute 48 Geo. III., c. 151, § 17.—Circumstances in which, pending an appeal to the House of Lords, the Court made an interim appointment of judicial factor on the estates of a company, and with power to wind up its affairs. (Sequel of case reported ante, p. 476, No. 202.) No. 255. Pet. Young. The respondents having entered an appeal to the House of Mar. 11. 1852. Lords against the interlocutor of the Court, of February 14th, the petitioner, Young, applied for interim execution pending the appeal. The petition stated that an appeal had been presented, and had been duly intimated by him; that appeal cases for the parties had been ordered but had not yet been prepared, and, at any rate, that considerable delay must take place before the cause could be heard; that it was, therefore, necessary for the protection of the interests, not only of the petitioner, but of the company, that interim execution of the interlocutor above referred to should be obtained. The Act, 48 Geo. III., cap. 151, sec. 17, declares, "that when any appeal is lodged in the House of Lords, a copy of the petition and appeal shall be laid by the respondent or respondents before the judges of the Division to which the cause belongs, and the said Division, or any four of the judges thereof, shall have power to regulate all matters relative to interim possession or • Lord Cockburn having been absent from indisposition, Lord Wood was called in, in order to make up the quorum required by the statute. Mar. 11. 1852. execution, and payment of costs and expenses already incurred according to their sound discretion, having a just regard to the interest of the parties as they may be affected by the affirmance or reversal of the judgment or decree appealed from." Pet. Young. The petition, therefore, prays the Court to allow decree in favour of the judicial factor already appointed to go out and be extracted, and execution to proceed thereon, notwithstanding the appeal, and to prorogate the time for the said judicial factor finding caution for one calendar month from the date of their Lordships' judgment; and all this upon such caution (if any) as the Court might think requisite in the circumstances, to provide for the event of the interlocutor appealed from being reversed in the House of Lords. The petition having been moved in Court this day, the SolicitorGeneral for the respondents asked to be allowed to give in answers by the box-day. Millar, for the petitioners, argued, that in the meantime and till answers were lodged, some arrangement behoved to be made for the protection of the estate. There is at present no person whatever in charge of this estate. The petitioner does not pretend that he can take charge of it, nor can the respondents pretend that, after the decision of the Court appointing a judicial factor, which has been made the subject of appeal, they can interfere; and the affairs of this copartnery and the interests of the copartners are thus under the charge of no one. All that the petition asks is, that some one shall, in the meantime, be appointed to protect the estate. Solicitor-General for the respondents, the case is on the single bills, and the respondents' motion is to be allowed to give in answers. Were this application granted de plano, the result would be that the appeal would be mutually defeated, because the whole office of the judicial factor would be brought to a close before the appeal was decided; the application formerly presented, was one of a very unusual nature-perhaps unprecedented, its competency being doubtful, and at all events it was open to very serious objections. Such being the case, it was only to be expected that it could be made the subject of an appeal, and till the proceedings of the Court of last resort was blamed, nothing could be done by which the interests of parties should be permanently affected. The COURT pronounced the following interlocutor:-"The Lords having heard counsel and considered the petition for interim execution, pending appeal; nominate and appoint Mr Kenneth Mar. 11. 1852. Mackenzie, accountant, judicial factor, ad interim, on the estates of Pet. Young. the company of Dormet Collins, Alexander Young and Peter Feely, and for winding up the affairs of that company, with power to realise and recover the whole effects of the company, to pay all debts due by the company, to balance the company's books, with reference to the accounts and claims of the partners inter se, and decern: The said factor finding caution within eight days, and allow answers to be given in to the said petition by the second box day in the ensuing vacation." James Gordon, jun., W.S., Agent for Petitioner. Baxter and Macdougall, W.S., Agents for Respondents. SECOND DIVISION. MACALISTER, Factor Loco Tutoris. Pupil's Protection Act-Factor loco tutoris-Malversation in Office. No. 256. This was a proceeding under the Pupils' Protection Act, 12. Mar. 11. 1852. and 13 Victoria, c. 51. Macalister, The accountant having reported that the factor was due to the Factor. estate about £150, he was ordered to attend at the bar, in the event of his failing previously to consign the same. He attended, and two days were allowed him, and he was ordered again to appear at the bar. On his again attending the Court, Pattison stated that the factor had still been unable to make consignation, and craved further delay to enable him to do so. The LORD JUSTICE-CLERK.-We shall certainly take no steps to prevent consignation being made, but we must take those steps provided by the statute that this shall be done. The COURT gave decree of consignation for the balance reported by the accountant, to be consigned within a month, and authorised extract to go out therefore in name of the accountant, and, quoad ultra, remitted the case to the accountant. W. Lorimer, S.S.C., Agent for the Factor. The Court of Session rose for the Spring Vacation. No. 257. Mar. 16. 1852. Middlemiss v. &c. HIGH COURT OF JUSTICIARY. Before the LORD JUSTICE-CLERK, LORDS COCKBURN, WOOD, Suspension, MIDDLEMISS v. LORD and LADY WILLOUGHBY Poaching-Offender under age-Name and identity of Offender. On the complaint of Lord and Lady Willoughby D'Eresby and Lewis Kennedy, Esquire, their factor and mandatory, James Lord D'Eresby Middlemiss, junior, and Thomas Middlemiss, sons of James Middlemiss, senior, labourer in Muthill, were convicted before the Justice of Peace Court, for the county of Perth, of poaching by means of setting snares for game in contravention of the Act 2d and 3d William IV., c. 68, § 1, and sentenced respectively to pay a penalty of 20s., with L.1:6: 10 of expenses, failing which, to be imprisoned for 30 days within the tolbooth of Perth. This sentence it was now sought, on behalf of the convicted parties and their father as their administrator-in-law, to have suspended on the ground of their infancy, James Middlemiss junior, being only two years old, and Thomas having reached but six years. They were therefore legally incapable of committing the offence set forth in the conviction. It was answered for the respondents, that Thomas Middlemiss was of sufficient years to understand and commit the offence of poaching, and that as he had actually done so, the conviction was good. But that the party who answered to the name of James Middlemiss junior, was not the infant of two years, but an elder brother, who improperly answered to the name of James Middlemiss junior, and that as he did not appear before the Justices, the case, as allowed by the statute, was proceeded with and proved against him in his absence, and that as the conviction passed in the name which he himself had given when apprehended, it could not be suspended. It was stated that the respondents had no intention to follow out the sentence, the object of the prosecution having been merely to check a species of poaching which had been carried on in the neighbourhood to a great extent. In answer to this, two letters were produced from the respondent's country agent, addressed to the infant boys Middlemiss, formally intimating the alternative sentence of penalty and expenses or imprisonment. |