8!ffccaaanif;a:a ^ Infra, p. 27 ; Appendix, No. 15. , . INTRODUCTORY in the cases before him. As regards the pleadings of parties he was something of a purist, and he appears to have had, as most people have, a sturdy antagonism to prolixity and irrelevancy. Further, he jealously resented any disrespect shown to the Court. At the same time, lawyers will not fail to notice that he occasionally granted redress in a form -which was not that craved in the summons, when equity required this ■disregard of strict form. Lastly, the judgments contained in this book are, I think, all those which Sir Walter Scott issued. All, at least, that are to be found in the papers, preserved in the Sheriff Court are given here. One or two processes, it is possible, maj^ have been removed by the agents or parties on perfectly legitimate business, and not returned. But these must have been few. I know of only one which is not to be found amongst the Sheriff Court papers ; and I have noted it as the last case in the appendix. In all, including that just mentioned, Sir "Walter Scott gave judgment in one hundred and fourteen legal processes, of which one hundred and twelve were lawsuits or criminal complaints, the remaining two being respectively the suspension of a Sheriff-Of&cer and the order to hold a Mars Court. This may not seem a very imposing array in three-and-thirty years. But the area of the juris- diction was small, being limited to the county of Selkirk, and a great part of the shire was very sparsely populated. These cases, too, were ■defended cases only, and only a part of the defended cases. The ■undefended actions were disposed of by the Substitute. Also it must be noted — the dates of the decisions will show it — that as time went on Sir Walter personally disposed of fewer cases. The processes are there, one year with another, in practically the same numbers. But in increasing numbers they are left untouched by the Sheriff himself — left for disposal by his Substitute. After the year 1819 his judgments are very few. Those judgments, or eases, which seem to be of more general interest are described in the pages which follow this introduction. In the appendix a complete list of the cases, arranged according to the date of the latest deliverance in the process, is given ; and such of them as are not described or only partially described in -the earlier part of the book are there set out at length. During three-fourths of Scott's term of office his Sheriff-Substitute 8 INTBODUCTOBY was his friiBnd, Charles Erskine, writer in Melrose. At that time the Sheriff had the appointment of his Substitute in his own hands, and the Substitute's commission fell with that of his principal.^ Erskine's. commission was dated 14th March 1800. Mr. Erskine did not actually reside in Selkirk, but in Melrose, a few miles distant. He would attend in the Sheriff Court on all regular Court days, and whenever necessary. Scott and he were on terms of great intimacy. He had helped Sir Walter in his money difficulties. Lockhart has included in Scott's Life a letter written by Sir Walter from Abbotsford to John Ballantyne, dated 14th October 1814, in which this passage occurs : — "Dear John, — Charles Erskine wishes his money, as he has made a purchase of land. This is a new perplexity — for paid he must be forthwith, as his advance was friendly and confidential. I do not at this moment see how it is to be raised, but believe I shall find means." The pencil note already quoted ^ shows how friendly and pleasant were their official relations. Erskine, I venture to think, sat in Sir Walter's mental studio for the protrait of the Sheriff-Substitute in Ghiy Manriering — Mac-Morlan, " who was a man of intelligence and probity " — " a man o' character, and weel spoken o'." It will be noted that he appears in one of the cases (see infra, p. 41, and Appendix, No. 33) which came before the Sheriff — a complaint against the keeper of Glendinning Toll-bar, in which that person was charged with, inter alia, refusing tickets to Mr. Erskine and Mr. Nichol Milne of Faedenside, who were returning from Hawick, and keeping them sitting on horseback for about five minutes on a dark night. Mr. Erskine held his last Court on 12th January 1825. In the Court Book of Selkirkshire there is an entry, under date 25th January 1825, in these terms : — " No Court. Mr. Charles Erskine, the Sheriff- Substitute, having taken ill yesterday in a Meeting of Eoad Trustees at. Jedburgh, and died there this day." Sir Walter Scott's Journal was. not begun until the autumn of that year ; so we have no words of his regarding the death of his friend. In succession to Erskine, Scott appointed as Sheriff-Substitute William Scott, younger of Eaeburn. His commission is dated 10th February 1825. Mr. William Scott signs none of Sir Walter's judg- ' Sheriffs-Substitute are now appointed by the Crown, and hold office ad vitam, aut culpam. ' Supra, p. 4. INTRODUCTOEY 9- ments. The few which were issued after Erskine's death are signed by the Sheriff himself. Along with Erskine the Sheriff had another Substitute — I presume an honorary or unsalaried official, as is usual at the present time — to- act on emergency in the case of the absence or illness of the regular Substitute. This was Mr. William Borrowman, a surgeon in Selkirk, who was appointed on 20th March 1800. Little seems to have been required of him officially; but, as will be seen, he issued one or two formal judgments. The office of Sheriff-Clerk during Sir Walter's time was held first by Mr. John Lang, and then by Mr. Andrew Lang. Four generations- of Langs in succession held this ofiice. Mr. John Lang was appointed on 20th August 1782, and was succeeded by his son Andrew on 16th October 1805. Mr. Andrew Lang was, on 2nd October 1841, succeeded by his son John, who had been his depute since 1836. This Mr. John Lang was succeeded in the office of Sheriff-Clerk by his son, Mr. Patrick Sellar Lang, on 1st September 1868. Another son of Mr. John Lang was the late Mr. Andrew Lang, the distinguished historian and man of letters.^ Mr. Andrew Lang, who was Sheriff-Clerk for twenty-seven of the thirty- three years during which Sir Walter was Sheriff of Selkirk, was for a time Chief Magistrate of Selkirk. Scott had a high opinion of him as a lawyer and official ; ^ and in a letter ^ to Lord Montagu,, 3rd October 1819, where he describes with much humour a surprise visit of Prince Leopold to Abbotsford, and the ceremony of receiving His Highness as a burgess of Selkirk, Sir Walter remarks, " Lang made an excellent speech — sensible and feeling, and well delivered." The office of procurator-fiscal (public prosecutor), then in the gift of the Sheriff, now in the gift of the Crown, was held by Mr. George Eodger, writer in Selkirk. He was allowed to continue to practise in civil cases, and appears as procurator in several of those which came before Scott. ' Mr. Patrick Lang held the office until 1879, when he was succeeded by Mr. Alexander Rutherford ; and he in turn was succeeded in 1895 by Mr. D. M. Mackintosh, who died in 1917. 2 See Mr. Craig Brown's History of Selkirkshire, p. 166. ' In Lockhart's Life. 10 INTRODVOTOBY Other proiQurators who practised before Scott in the Selkirk Sheriff €ourt were Mr. Alexander Park, Mr. Eobert Henderson, Mr. Andrew' Henderson, and Mr. John Paterson, Of these, Mr. Park appears to have^ been the most forcible and the most daring. Specimens of his ipleadings will be found below. In one case Sir Walter orders one of ihis defences to be withdrawn, and fines him personally half a guinea.^ He died about 1815, and one case^ concerns his executry. I think I am justified in stating that this Mr. Alexander Park was a brother •of Mungo Park, the celebrated African explorer.^ Mungo, who was born at Foulshiels, near Selkirk, had a brother named Alexander, who is described as "of Selkirk," and who survived the traveller. This brother was stated in 1815 to have " recently " died.* Another brother ■of Mungo, Archibald Park, held the office of Sheriff-Officer for the county of Selkirk,^ and it was he who introduced Mungo to Sir Walter Scott. Perhaps also the litigious Mr. George Park, afterwards referred to,* the farmer at Carterhaugh and Oakwood, was a brother. Mungo was the seventh child of a family of thirteen. Mr. Andrew Henderson, who appeared as solicitor in many of the ■cases, had been first procurator-fiscal, and afterwards Sheriff- Substitute, under Sir Walter's predecessor. Sheriff Plummer. The Sheriff in Scotland performs the work which is done by a Eevising Barrister in England — he adjusts the roll of parliamentary -voters. This duty Sir Walter Scott was not fated to discharge. It was not he who presided at the first Eegistration Court under the Eeform Act, the measure which he had so strenuously opposed. That Court was held at Selkirk on 19th September 1832, just two days before his death. The Parliament which had carried the Eeform Bill into law had the melancholy task of passing, in the same session, an Act '' authorising the temporary appointment of a person to perform the duties of the office of Sheriff of Selkirk on account of the long- ^ See Appendix, No. 31. 2 See Appendix, No. 88. 3 Mr. Craig Brown so describes him, History of Selkirkshire, vol. iL p. 133. * See Life prefixed to Mungo Park's Journal, published in 1815 (London : John Murray) ; and Life of Mungo Park, published in 1835 ; " Advertisement " ((Edinburgh : Eraser & Co.). ' See Lockhart's Life of Scott, vol. ii. p. 10. ^ See infra, p. 87. , . , ' 2 & 3 Will. IV. cap. 101. Sheriff Court Buildings (New Town Hall), Selkirk, WHERE Sir Walter Scott sat as Judge. INTRODUCTORY 11 continued indisposition of Sir Walter Scott. Accordingly at the Court, held as above stated, " for the Eegistration of Claims under the Eeform Act," as appears from the minute of that date in the Registration Book of Claims, Thomas Hamilton Miller, Esquire, advocate, produced a ■commission from His Majesty, dated 10th August 1832, appointing him to act as Sheriff of the county of Selkirk; and it was therefore Mr Miller who presided at this Court.^ The Court-room in which Sir "Walter Scott, on his accession to office, administered justice was situated in the Old Tolbooth. This building, which had by that time fallen into decay, occupied a consider- able part of the Market Place.^ It was taken down in 1803. In its stead a new Court-house was erected, for the joint use of the county and the burgh, near the spot where its predecessor had stood, but not on the site of it. It was in this building that Scott held his Courts from the time of its completion until his death. It is now the Town Hall of Selkirk, the Sheriff Court premises being located in the more recently erected county buildings. In the case of Stevenson (narrated infra, p. 27) Sir Walter directed the fine imposed " to be applied to finishing the prison and correction-house of the burgh " — obviously that which was to replace the Tolbooth; but the Circuit Court did not adhere to his judgment in the case, and, accordingly, the building fund was not increased by this twenty shillings. 1 On Sir Walter's death Mr. Hamilton Miller was appointed Sheriff of the county. His Sheriff-Substitute was Mr. Otto Herman Wemyss, advocate. ^ See Mr. Craig Brown's History of Selkirkshire, vol. ii. p. 130, to which learned work I am indebted for these particulars. Opposite the page cited will be found a ground plan of the Old Tolbooth. THE DANCING-MASTEE'S BET Thomas Dewar, a dancing-master in Selkirk, was the owner of a white pony. Either he had been boasting of its speed, or John Eome (variously described as a vintner and as a carrier) had been belittling the same, for in the beginning of November 1802 Eome "beted four guineas against the white powney or four guineas as the value thereof " that Dewar " should not trott the said white powney one mile in five minutes," the ground to be chosen by Dewar. Dewar having on his part accepted the bet, gave intimation to Eome "That upon the 21st December he was to Trott from the Milestone No. 34 counting from Edinburgh Southwards to the 35 Milestone on the High Eoad to Selkirk, and which he accomplished upon said powney, in the presence of witnesses within the said given time of five minutes ; Yet John Eome most unjustlie refused to pay the foresaid sum of Four Guineas unless Compelled." Dewar raised an action in the Sheriff Court to recover payment of the four guineas, with interest from the 21st December. The statements above quoted are taken from the summons. Eome lodged defences. It is sad to record that he took up an attitude which was very far from sportsmanlike. The making of the bet was not denied ; it was not denied that the white pony had fairly won the wager for its owner. Eome meanly sheltered himself behind the illegality of betting. The defences, for the form of which his. solicitor, Mr. George Eodger, was responsible, are worthy of being set out at length. In style, the document is a fair specimen of a good deal of the pleading in the inferior Courts at the time. Mr. George Eodger was procurator-fiscal of the county — the public prosecutor — and this fact Trmy account for the line of the defences — the illegality of betting. " In every age and in all nations certain actions of mankind have been deemed so prejudicial and hurtful! to society, as to render the interference of the Supreme Power absolutely necessary in order t& prevent or suppress them. Among these deviations of moral conduct, the practices of Gaming and Betting or Wagering have been found to have been inimical to the welfare of Society, and the interest of th& THE DANGINQ-MASTER'S BET 13 subjects of Britain, and have accordingly been prohibited by the express Authority of the Legislature. " In this Action the Defender is called upon to pay a Bett of Four Ouineas which the Pursuer said took place between them in the month •of November last that he would not trot his white pony one mile in five minutes. The Defender has only to oppose an Act of Parliament, vizt. the Ninth of Her Majesty Queen Anne,^ and the Decisions of the Supreme Court, in order to set the Action entirely aside, by which all Gaming, Betting, and practices of the like nature are expressly prohibited, and all Debts contracted on these Accounts are declared to be null and void, even although they had been afterwards constituted by Bill or Bond. Indeed the prohibition in this Act of Parliament seems to have been so generally understood that in order to evade it, it is universally customary when any Bett takes place between Individuals in Gaming or Horse Racing either to stake the sum betted or to deposit it in the hands of a third party to be delivered to the Winner ; but unless these precautions are used no action is competent to make the Bett effectual to the Winner. " As if these practices, which are in themselves contra bonos mores, were under the protection of the law, the consequences would soon be felt to be prejudicial to the Interests of Society, domestic and political. In the present instance the Bett was neither staked nor deposited in the hands of a third person, and the Defender contends that, by the Act of Parliament above mentioned, it is not actionable, and he will of •course fall to be assoilzied from this Process, and found entitled to his full Expenses. — In respect wheeeof, "(Signed) Geo. Eodgek." To this rather mean defence the dancing-master (who was " now in Chapelhill") lodged answers. These are signed by Mr. Alexander Park,2 writer in Selkirk, his solicitor. '' When Viewed as a moral lesson the Defences are more entitled to esteem than when considered as a Legal Defence agt. the present Action. The existance of a Bett is admitted in the Defences and the Objection stated why he Did not pay it is because such Transactions are contra ionos mores, and are declared by a Statute of Queen Anne not ' 9 Anne, cap. 14 (the Gaming Act, 1710), of which all but the half of one section has since been repealed. 2 See supra, p. 10. 14 -^ME,:l)AmiNG-MASTEM'S BET actiortable. : With regarld tb the immorality of the practice, The Respon- dent ^ is himself convinced that ithe : Cause of Morality; is not much I strengthened by it; hut the Oonduct of the Defender in attempting tO' screen himself under an ;Act of Patlia,nlent from the conclusions of this Action, v?hen he knows that, he not, only offered but provoked the Eespondent to accept of the Bett iu question', is certainly not following that upright line of conduct upon which he harangues with so much eloquence, and verifies the truth of the Observation that a man may IcTWw his duty and not practice it. "The Act of Parliament opposed by the Defender as a Defence against the Action affords him no security, for by that Act, all debts- contracted in the manner of the one lybelled, the amount of which does not exceed a hundred pounds Scots ^ are declared actionable, and may be sued for in any Court competent in the same manner as any other debt. The debt sued for is below the amount specified in the Act of Queen Ann, and the existance of it being admitted by the Defender, the pursuer therefore contends that he is entitled tO' your Lordship's decree in terms of the conclusions of the Lybell. " The Pursuer * lays much stress upon the circumstance of the sum^ betted not having been staked by both parties at the time it was offered and taken. — But even admitting this to be the case it is of no conse- quence, for the practice in this particular is neither requisite nor prevalent, and so far as matters of this kind are regulated by a supreme Association of Gentlemen, known by the name of the Jockey Club, it is by no means of any consequence, even in large ' sums, whether the money is Deposited ; But in the present case the Defender is cut off from any Insinuation or Argument he may wish to Draw from this circumstance, on account of the sum lybelled being within the limitation of the Act of parlia*., and therefore if not deposited at the time is lyabel and competent to be recovered in the same way as any other Existing Debt. "Under these circumstances the Eespondent flatters himself your Lordship will not Hesitate to Decern in Terms of the conclusions of the Lybell. — In respect whereof. "(Signed) Alex. Park." ' That is, Dewar. 2 £8, 6s. 8d 3 This, of course, ought to be the defender. THE DANCING-MASTERS BET 15 The judgment in the case (written by Sir Walter Scott, but issued and signed by Mr. Erskine) was this : — "Selkirk, 2ird March 1803.— The Sheriff-Substitute, having advised with the Sheriff-Depute, Finds that independant of any special Statute it is contra bonos mores for the parties in the case to peril upon horse racing or wagers against time a sum which from their rank in life cannot be indifferent to them ; Therefore assoilzies the Defender ; but finds no Expenses due. "(Signed) Charles Erskine." THE CASE OF "THE WONDEEFUL COW" Henry Gill, butcher in Galashiels, bought a fat cow from the Earl •of Lauderdale in the year 1802. Henry appears to have had in him the makings of an impresario, in a small way. He saw in his purchase more possibilities than the mere supply of beef. In the language of the subsequent legal proceedings, Gill " ' carried ' her to Edinburgh, in order to be exposed as a publick spectacle." To help him drive her to Edinburgh (for the journey of thirty-three miles was not the luxurious experience for the cow which the word " carried " might suggest), and to take charge of her while there. Gill employed one Andrew Bower, who resided at Selkirk Loanhead. Bower's wages were fixed at twenty- one shillings a week. Whether this enterprise of Gill's proved a success financially we do not know. Probably it did not. Andrew Bower, at any rate, found it necessary to raise an action in the Selkirk Sheriff Court against Gill to recover the sum of £9, 7s., being the balance of wages due to him under the contract. The amount of this balance, by the way, shows that the exhibition must have extended over several weeks. Gill's defence to this claim was that Bower, "having been entrusted with drawing the money from the persons who had the curiosity to see " the cow, received considerable sums in this way for which he had not accounted. So far from money being due to Bower, Gill maintained that the balance was the other way, and that he was entitled to an action of " Compt and Reckoning " against Bower. The first deliverance (which is in Sir "Walter's handwriting, but is dated and signed by Erskine) is as follows: — "Selkirk, 23rd March 1803.— The Sheriff-Substitute, having advised with the Sheriff-Depute, appoints Henry Gill to lodge a Minute stating precisely whether the total charge of drawing the money for the sight of the wonderful cow ^ devolved upon Bower, or whether he only acted as doorkeeper occasionally ; Also whether he called him to acco*. every evening, or in what other way he ' The phrase is Sir Walter's. 16 THE CASE OF "THE WONDERFUL COW" 17 received partial payments; And whether he or Bower kept any note of the visitors to the said Wonderful Cow. Allows Bower to see and Answer said Minute when given in. "(Signed) Chaeles Erskine." Gill put in the minute which was ordered, giving his version of the practice as to drawing the money ; and Bower lodged answers to the effect that it was only occasionally, in Gill's absence, that he collected the money ; that he accounted for it in all but a few cases ; and that such money as he had retained was applied in part payment of his wages, and that the sum sued for was the balance of wages still remaining due. The final judgment is in Scott's handwriting. It is undated, and bears to be issued at Jedburgh — the solitary exception which I have been able to find to the practice of issuing the decisions in Selkirk. This interlocutor is written on the minute lodged by Gill, and is in these terms : — "Jedbukgh. — The Sheriff-Depute, having considered this Minute and Answers, Finds the Defender Gill liable in payment of the sum of Nine Pounds seven shillings pursued for. Reserves to him his title to call Bower to account for the proceeds of the money received for seeing the wonderful cow in case he shall be advised to do so : finds no expenses due, and Decerns. "(Signed) Walter Scott." There is no trace of Gill ever having brought his action of " Compt and Eeekoning." THE TAILOES' BANNER A case which came before Sir Walter Scott in 1804 must have interested him not a little. It arose in connection with the great annual festival (I had almost written rite) of the Common Riding. Once in each year the Marches of the town's property are " ridden " by an imposing cavalcade, in accordance with faithfully preserved tradition. As a rule, all is harmony and concord; but in 1804 things did not glide along with their accustomed smoothness. The Incorporation of Tailors on that occasion declined to pay the magis- trates the usual courtesy of attendance at the Common Eiding procession, and intimated that, instead of this, they intended to have a procession of their own on the following day. The magistrates promptly issued a proclamation forbidding this procession. At first, it would appear, the tailors intended quietly to submit to the pro- hibition, but, "having met and dined together," they changed their minds. They resolved forthwith to parade the streets with their standard flying. Parade they did, accordingly, on the evening of 30th June in the year of grace 1804. While they were walking in procession with their standard, one Andrew Brown, a journeyman of the craft, but presumably not a member of the Incorporation, " attacked the Standard-bearer and wrested the Standard from his hands and tore it in such a manner as to render it completely useless." This description of the outrage is quoted from the summons in the lawsuit which followed. The action was brought by "William Thorburn, Taylor in Selkirk, Deacon of the Incorporation of Taylors, and John Paterson, Taylor there, his colleague," against the said aggressor, and it called on the Court to order him to furnish the Incorporation with a new standard or pay them a sum of £20 as the value thereof. In his defences Andrew Brown states that he was acting under the authority of the magistrates in endeavouring to stop the proces- sion; and that, "if the standard received any injury, he was not sensible of having done it ; and that it would be more likely that the injury was received by the fall of the person who carried it." He THE TAILOBS' BANNER 19 further pleaded, "That the colour itself was not by far worth one- fourth of the sum, and was a piece of as old, feeble, and patched-up stuff as can be imagined." This touched the tailors on a tender spot and roused them into grandiloquence. In their answers they declared "that the Standard is inferior in appearance and value to none of the Incorporation Standards in Selkirk, and it is perhaps better than any of them, one only excepted, all of them being of silk with rich emblematical paintings. But it is not the intrinsic value alone of the Standard that ought to be considered in estimating the damage that will fall to be awarded against the person who has the audacity wilfully to destroy such an honourable ensign. The invincible standard of France was perhaps not worth thirty shillings of intrinsic value, and yet no person doubts that the usurper who presumptuously bestowed the title upon it would rather have lost as many thousand pounds as suffered the mortification of having it torn by our brave countrymen from his boasting legions, and its vainglorious name and memorials in one memorable day obliterated and deforced for ever." The first interlocutor (which is in the handwriting of Sir Walter Scott, though dated and signed by Mr. Erskine) was intended to dispose of the case. " Selkiek, \%th January 1805. — The Sheriff-Substitute having advised with the Sheriff-Depute, Assoilzies the Defender from the charge of assault in respect he acted by the direction of the Magistrates ; but in respect of his having torn the banner of the trade, the Sheriff appoints him to sew up and repair the breeches he has made therein ; and, failing his doing so within eight days, the Sheriff authorises the Deacon to cause the said repairs to be made, with certification that the Defender will be found liable in a reasonable amount for the same. Finds no expenses due. "(Signed) Charles Ekskine." The tailors were not satisfied with this decision. They presented a reclaiming petition asking the Sheriff to reconsider his judgment. In support of their prayer they pointed out that the standard in question "is a large piece of rich silk painted on both sides with emblematical designs. The scene is laid in Paradise, and exhibits the fall of man. The centre of the standard is occupied by the tree of knowledge of good and evil, the branches of which extend over the 20 THE TAILORS' BANNER whole banner ; at the bottom of the tree, and on each side of it, our first parents are represented; Eve, with the fatal fruit in her hand, apparently in conversation with the foe of mankind (who has artfully entwined himself round the sacred tree), and Adam at a little distance. The extremities of the standard are occupied by passages from Holy Writ in letters of gold, applicable to the scene and denoting the fall of man. The whole piece is finished in a masterly manner, perhaps more so than your lordship might have imagined." ^ Then they come to the injuries inflicted on the fatal 30th of June. " A painting upon silk of this description, when tore and destroyed at so many points as this Standard is, the petitioners contend it cannot be repaired by any operation of the needle without destroying the symmetry of the whole. Por instance, our venerable progenitors have their bodies violently severed in different parts, and to attempt to repair the injury would have the effect of representing Eve with her head placed below her shoulders." "The tree, too, has suffered greatly from the impious attempts of the Defender ; it is cut in twain at the root ; its branches and top are most completely broke and destroyed, and some of them with part of the Scripture language have disappeared for ever. The only figure on the painting that has survived the attack is the serpent, who still holds his place and proudly defies the ruin." It would be hard to trace in Scottish jurisprudence the precise maxim, rule, or principle which is given effect to in the Sheriff's final deliverance in this case ! But the judgment was effectual. The interlocutor is written on the reclaiming petition with his own hand. "Selkirk, 2drd June 1805.— The Sheriff having advised this Petition, and having inspected the banner in question, finds that the same is capable of repair, and out of his respect to the craft has caused the same to be repaired in his own family. Therefore, refuses the Petition and prohibits further procedure. Finds no expenses due. " (Signed) Walter Scott." This flag has long since been retired from active use : but it is still 1 It may be noted that in Tlie Pirate, chap, xxxi., Bryce Snailsfoot's booth at the Kirkwall Fair had a sign of canvas painted " with an emblematic device resembling our first parents in their vegetable garments," with a legend in verse calling atten- tion to this raiment, THE TAILORS' BANNER 21 preserved,^ though uow in a very tattered and frail condition. In a number of places it has been stitched up — probably by the hands of Lady Scott or her daughters. The banner is dated 1770, and bears the legend: "They sewed fig-leaves together and made themselves aprons." ' It is ill the possession of Mr. Johnstone, clothier in Selkirk. DESERTION OF DOMESTIC SERVICE In the case of Chisholm against Wilson or Niclwl, Scott attempted to correct an erroneous popular belief which, strange to say, survives in many quarters at the present day, viz. that the marriage of a female servant entitles her to break her contract of hiring without incurring pecuniary damages. The pursuer, Mr. Gilbert Chisholm of Stirches, residing in Edinburgh, sued Katherine Wilson, wife of Eobert Nichol, Howcleuch, for damages for desertion of service between terms. The husband appeared in Court and stated that Katherine Wilson, immedi- ately after leaving her service, had married him, and they understood that this marriage terminated the service. Sir Walter pronounced this interlocutor : — " Selkikk, 4ili September 1805. — In respect the conduct of the Defender towards her master has been highly improper, and that the popular idea that marriage breaks terms is altogether unfounded, the Sheriff' finds her husband liable to Mr. Chisholm in Three pounds damages and expenses and Decerns. The three pounds include expenses of process. "(Signed) Walter Scott." The defender's wages as nurse was £3 for the half-year. Some months previously another action in this branch of the law had been decided in the Selkirk Sheriff Court. William Laidlaw, writer in Peebles, brought an action to have Agnes Scott of Selkirk ordained to return to his service, under penalty of damages and imprisonment — for such, at that time, were the remedies against deserting servants. The defender entered the service of the pursuer, as a domestic servant, at the wages of eighteen shillings and a pair of shoes for the half-year. She deserted, alleging that the work was too much for her, and "that she was sent out at untimeous hours for her master to public-houses, and further that she did not get her meat sufficiently." All this the employer denied. The first interlocutor (in Scott's handwriting, signed by Erskine) was : — DESERTION OF DOMESTIC SERVICE 23 "Selkirk, lith March 1805.— The Sheriff-Substitute, having advised with the Sheriff-Depute, allows the Defender a proof of her Defences and the Pursuer a conjunct probation as accords. "(Signed) Charles Erskine." After proof, the case was disposed of by the following judgment (again in Sir "Walter's handwriting) : — "Selkirk, 12th June 1805. — The Sheriff-Substitute having advised with the Sheriff-Depute, Ordains the Defender to return to her Master's service, and to serve him for a time equal to that space for which she has deserted, and further fines her in ten shillings to be applied in defraying her master's expenses in the process. "(Signed) Chas. Erskine." ACTIONS FOR DEFAMATION OF CHARACTER There were, of course, actions for slander. In 1800 James Riddle, merchant in Selkirk, raised such an action against Andrew Henderson, writer (i.e. solicitor or attorney) there. In point of time this was the second case to which Sir Walter had to give his attention. Eiddle complained that upon a certain day Henderson "did assert and say that he was informed by the complainer that Archibald Park, tenant in Hartwoodmyrs, was resolved to give him a bloody nose the first time he met with him; and the said Andrew Henderson, upon being challenged by the complainer for falsely saying so in his name, did instantly size {sic) the said Thomas Eiddle by the eoUer (sic) and called him all or one or other of the following epithits (sic) viz. Damned Liar, Damned Villian and Scounderal (sic) and Black- guard, from all of which it is evident that the said Andrew Henderson has been guilty of Scandal, Defamation, and manifest injury towards the Credit and Eeputation of the Complainer." Eiddle, therefore, asked for £50 in name of damages and expenses, and that the defender should be fined, in addition, £10. Further, he demanded recantation in these terms : " But also the said Andrew Henderson Defender ought to be ordained to compear (i.e. appear in Court) before the Sheriff while sitting in judgment, and repeat and subscribe a Palinode or Eecantation acknowledging the foresaid defamatory expressions to be false and groundless, and to ask pardon for the same." Now, Mr. Henderson, being a lawyer, pleaded that an action for slander was not competent before the Sheriff. This plea was sustained by Sir Walter Scott in the following judgment, which is both written and signed by himself : — "Selkirk, 10th December 1800.— The Sheriff-Depute, having considered the present process, finds that it is a proper action of scandal in which he can have no jurisdiction even by consent of parties, therefore dismisses the Action as incompetent ; finds the Pursuer liable in expences, and allows an Acco' to be given in. "(Signed) Walter Scott." ACTIONS FOB BUFAMATION OF CHARACTER 25 It may be pointed out here, as is done more explicitly in the Appendix (No. 2), that Sir Walter appears to have followed a reported decision (in 1745) to this effect. Before the next action for slander came before him, the question of whether a Sheriff has jurisdiction to entertain such actions had been authoritatively set at rest by a decision of the Supreme Court, which declared it to be the law that an action of scandal might competently originate before the Sheriff. Perhaps, however, when giving the above judgment the Sheriff of Selkirk had in view merely that part of the claim which asked for palinode. A Sheriff, as such, had not the power to order that particular balsam to the wounded feelings of the defamed. That could be done by him only as Commissary, and not as Sheriff. In the subsequent cases there is no conclusion for palinode. The next slander case was in 1811. One Andrew Nicol, a merchant in Selkirk, raised it against George TurnbuU, shoemaker there. The pursuer said that, a sum of money having been " abstracted from the house of John Melross, shoemaker," the defender, " casting off all fear of God and regard for his neighbours," had been guilty of the crime of calumniating and defaming him, and injuring him in his good name by raising and propagating the report that he, Andrew Nicol, was the person who had taken it. The following judgment (in Sir Walter Scott's handwriting) was pronounced — the decree in another action referred to in it had been pronounced by the Sheriff-Substitute : — "Selkirk, \Zth March 1811. — The Sheriff-Substitute having advised with the Sheriff-Depute, Finds that, as the pursuer in the present action has already had a decree of damages against one member of the defender's family sufficient to clear his character and check the scandal, there is too much room to suppose that in this multiplication of processes he has in view some farther end either of profit or revenge to which the Sheriff can give no counten- ance. Therefore Assoilzies from the present action and Decerns, each party paying his own expenses. "(Signed) Chas. EeSkine." A third action for defamation, which did not proceed to a conclusion, and in which the only point decided was one of procedure, will be found in the Appendix (No. 83). And there was a fourth. In the second last case with which Sir Walter Scott dealt, Andrew Haig, farmer, St. Helens, with consent of 26 ACTIONS FOB DEFAMATION OF CHARACTER the procurator-fiscal, sued William Paterson, stockingmaker, Selkirk, for £50 damages for slander. According to Haig's statement the defender, " in the house of William Ballantyne, with a view to provoke " Haig " to strike or fight with him, called him ' a damned liar ' " — that most frequent of all slanderous expressions ; that with which Scott began, that with which he ended, his experience of defamation actions. The Sheriff pronounced the following judgment : — "Selkirk, 30 This name is spelled indiscriminately Govenlock and Govinlock. These ■Govinlocks seem to have had almost a monopoly of tolls. 44 • TOLLS complainer, the said George Park not only refused to pay the Toll duty on the same being demanded from him by the Complainer's sister, . . . but, having alighted from his horse he took down the bars, and, going himself, called also to the said person before mentioned, who was. leading eight horses, to follow him and not to pay, as the said com- plainer and his sister had no right to exact Toll there, and the said person influenced by his example and advice refused to pay the Toll and passed through." The following interlocutor, with note, was pronounced by Sir Walter Scott, and is written by himself: — " Selkiek, Sth January 1812. — The Sheriff-Depute having con- sidered the summons, with defences and answers, finds that the road act founded upon does not confer, either expressly, or by fair implication, the power of erecting bars of a temporary nature for the purpose of levying toll upon a particular day on a road which is at all other times suffered to remain open ; therefore assoilzies the defender from the conclusions of the libel, finds the pursuer liable in expenses, and allows an account thereof to be lodged. "(Signed) Walter Scott." " Note. — As the present is a point of great general importance,, the Sheriff-Depute is desirous that the grounds of his judgment should be distinctly understood. It seems to him, not only that the power of the trustees is a creature of the Statute, and must therefore be strictly regulated by the words thereof, all of which seem to relate to tolls of a permanent nature, with bars properly fixed, and tables of the duties exposed to the public, but also, that the privilege of levying a certain tax being devolved upon trustees,, though for a purpose highly useful to the public, it ought to be carried into effect with such an appearance of regularity and authority as shall put the lieges upon their guard and apprize them that the collector of the toll is duly empowered to levy the same. The Sheriff has no doubt that the mode adopted by the Trustees in the present instance may be abstractedly a more convenient mode for the public than fixing a permanent bar upon the spot in question, and he has little doubt that the defenders, in this and similar questions, knew that the Trustees had empowered the pursuer to levy the toll in question on the day of St. Boswells ;, and perhaps they might have acted with more wisdom, at least TOLLS 45 with more urbanity, in taking some other way of impeaching the authority of the trustees than that which they have chosen ; but it is the business of a Judge to look at the law of the case only, and the Sheriff gives the present decision with the less reluctance, because it is impossible for the Trustees, where they delegate their powers to the description of persons usually employed in such duty, to give them at the same time their own sense of discretion and propriety in the exercise of them, whence it must frequently happen that the more loose, vague, and discretionary the powers trusted to them, the more frequently disputes are likely to arise out of attempts at imposition on their part, or of resistance or pertinacity on that of the passengers. "(Intd.) W. S." The pursuer appealed, by reclaiming petition, to the Sheriff to reconsider his judgment. The following interlocutor, in Scott's hand- writing, was pronounced: — " Selkirk, 26tt February 1812.— The Sheriff-Substitute having advised with the Sheriff-Depute, refuses the prayer of this petition, and adheres to the Interloq""^ reclaimed against. "(Signed) Charles Eeskine." The toll-keeper, or perhaps the Eoad Board at the back of him, was not satisfied. He appealed, by Letters of Advocation, to the Court of Session. The ease came before Lord Balgray,^ as Lord Ordinary, who had but recently been promoted to the Supreme Bench. He pronounced an interlocutor (20th June 1812), in the course of which he ordained the defender, George Park, by a writing under his hand to confess or deny — Firstly, whether or not in any former year he ever paid toll at the foresaid bar when temporarily erected and posterior to the period when a permanent bar was placed at a greater distance from the burgh of Selkirk. Secondly, whether or not, previous to his passing the temporary gate on the day in question, he was informed by any person or persons that such temporary gate was erected. Thirdly, whether or not at the time when he passed the said toll-bar and refused to pay, he "encouraged any other person or persons to follow his example." Park by minute (1) denied that he had ever paid toll-duty on any previous occasion at this temporary bar ; 1 David Williamson of Balgray. 46 TOLLS (2) stated that he was not informed, nor did he know, that such temporary gate was erected ; and (3) denied that he had encouraged anyone to pass the gate without paying. The pursuer, under a similar order, admitted that Park, after he was cited in the Sheriff Court, made offer to the pursuer to pay the toll duty and statutory penalties. On 5th July 1812, proceeding on these admissions and denials, Lord Balgray remitted " the cause simpliciter to the Sheriff; and in respect the defender, George Park, did offer after citation in the process before the Sheriff to pay the Toll claimed and the statutory penalty which was refused. Finds him entitled to his expenses." EEFUSAL TO SUPPLY POST-HORSES Another echo from the roads of these days reaches us in a case- of 1806, in which Sir John B. Eiddell asked the Sheriff for damages against James Dun, vintner in Selkirk, and also to find the defender liable in the penalties imposed by Acts of Parliament, for refusing to supply post-horses for longer than one day. After a proof, the Sheriff pronounced this judgment, which concisely explains the circumstances : — "Selkirk, 28th May 1806. — Having considered the proof for both parties, In Eespect it appears that Sir John B. Eiddell's servant said the horses were wanted for three or four days when he first came for them, and also that there was a great run upon the road at the time, finds that James Dun was in hoc statu entitled to decline to job the horses : Therefore Dismisses the Complaint, and finds Sir John B. Kiddell liable in expenses and Allows an^ Account to be given in. " (Signed) Walter Scott." ii THE SEQUEL TO A WEAVER'S WEDDING Eobert Brown, a weaver in Galashiels, with the concurrence of the procurator-fiscal, took proceedings against James Haig, likewise a weaver there. The pursuer complained that the defender carried o£f a table which was used on the occasion of the private complainer's wedding, and which had been " temporarily placed to the door to make room for the dancing inside, and not only broke and destroyed the same, but abstracted from a drawer therein a number of articles, including a fly shuttle, a hand shuttle, a bairn's mutch,i a soap box and razors, a piece of striped cotton cloth, etc., etc., and burnt the same in the house of James Henderson; and further that the defender was guilty of a riot and breach of the peace by insulting and attacking the women and others who were returning from the wedding, and by parading the streets of untimeous hours with a lighted candle in his hands." They concluded for payment of £1, 10s. to the private com- plainer for the loss of his property, and £10 to the procurator-fiscal, as the defender had been guilty of riot and breach of the peace. Haig denied the charges. In his defences he went on to say, " This much is certain, and the Defender offers to prove, that the Bridegroom himself and several others at the wedding were very much intoxicated, and behaved in a very rude and riotous manner. The private com- plainer^ damned his own father who was present, and threatened to knock down those who endeavoured to appease him." He suggested that the table might have been broken by " this company themselves " in carrying it out and in, "or by the children and others who had gathered about the door, or had been attracted by the noise and riotous conduct of the marriage company." The Sheriff' allowed a proof; and thereafter, he issued this interlocutor : — " Selkirk, 2Bth August 1811. — The Sheriff having advised the ' A cap, a head-dreBS for a woman. ^ 7.e., be it noted, the bridegroom. 48 TEE SEQUEL TO A WEAVER'S WEDDING 49 proof and whole process, finds the Defender liable for the value of the property which it appears he wantonly destroyed ; Modifies the same to half a guinea and decerns for the same, also finds expenses due, but assoilzies him from the criminal conclusions of the libell. " (Signed) Walter Scott." PLOUGHMAN'S ACTION FOE WEONGOUS DISMISSAL Thomas Drydon, late servant to Thomas Arras, tenant in Megal Pots, sued Arras for a half-year's wages, averring that he had been wrongfully dismissed. In his defences Arras stated that he found the pursuer " to be one of these servants whose turbulent Disposition suffered him not to be at peace with his master, his fellow-servants, or even the Horses he worked with. His behaviour has been the subject of challenge and vexation to the Defender, and complaint from the Defender's housekeeper and other servants, which places the master in a situation so very uncomfortable as can hardly be tolerated by any Gentleman of spirit." He condescended on instances of insolent behaviour. The action was a protracted one. Beginning in October 1808, it did not end until July 1812. The delay occurred over the proof. A proof was allowed by the Sheriff-Substitute, and we find him by interlocutor of 19th February 1812 ordering the proof to conclude. By an interlocutor in his own handwriting Sir Walter Scott disposed of the case thus : — " Sblkikk, 22iid July 1812. — The Sheriff-Depute, having advised this process with the proof adduced, finds that the Defender has failed to prove the ill-usage of his horses set forth in his defences : finds further that although the conduct of the pursuer upon one other occasion seems to have been pert and uncivil, yet it was not so much so as to infer a confiscation of his whole term's wages, as he expressed himself willing to enter on work the Monday after the altercation took place : Therefore finds the Defender liable in payment of the nine pounds ten shillings concluded for, and Decerns for the same and interest: Finds expenses due, and allows an accompt to be given in. "(Signed) "Walter Scott." THE SHERIFF " PEEAMBULATES THE MARCHES" An action was brought in the Selkirk Sheriff Court in 1808 by Mr. J. K. Johnstone of Alva, as to building a march dyke between the lands of Lewinshope, belonging to him, and the lands of Broad- meadows, belonging to Mr. John Boyd, and also as to fixing the line of march. The several deliverances will be found in the Appendix {No. 22). But the first interlocutor must be quoted here. It may be purely accidental, but it seems as if in this deliverance, alone of all those he issued. Sir "Walter " lets himself go " (to use a colloquial expression), as Monkbarns would have done had he had the good fortune to stumble on such an opportunity. The interlocutor runs : — " Selkirk, Vjth August 1808.— The Sheriff-Depute, having con- sidered the Eeport, Objections, and Answers, Agreeable to the request of the Objector, will visit and perambulate the marches in presence of the parties, and for that purpose appoints parties to meet him at Penmanscore upon Monday the twenty-second current at eleven o'clock forenoon. " (Signed) Walter Scott." Now is this not worthy of The Antiquary? In one and the «ame brief interlocutor he has in his ears the jingle of an old Scottish ballad and the ring of an ancient legal phrase. In a legal sense, the step which Sir Walter projected was not, strictly, a " perambulation of the marches "^ at all, but the word " perambulate " he could not resist, and so he adds it to the unassuming " visit," and gives an atmosphere of importance and antiquity to the proceeding. It is difficult, too, not to feel assured that while he wrote the words fixing this trysting-place the author of the Minstrelsy of the Scottish Border was repeating the refrain of the old ballad: — ' Which was a formal proceeding on a brieve of perambulation, with a formal inquest of men " with land of their own, and that dwell maist ewest (i.e. nearest) the controverted marches" (Act 1579, cap. 79 ; Stair, Institutes, bk. iv. tit. 3, s. 14). 52 THE SHERIFF "PERAMBULATES THE MARCHES' Desyre him mete thee at Penmanscore,' And bring four in his campanie ; Five erles sail gang yoursell befor, Gude cause that you suld honour'd be. Bid him mete me at Penmanscore, And bring four in his campanie ; Five erles sail cum wi' mysell, Gude reason I suld honour'd be. He bids ye meet him at Penmanscore, And bring four in your campanie ; Five erles sail gang himsell befor, Nae mair in number will he be. Some years later (in 1813) Mr. Johnstone of Alva brought an action to have his boundaries fixed where his lands marched with those of the Earl of Traquair along the top of Minchmoor or Minchmuir. (See Appendix, No. 73.) In that case Sir Walter " appointed the proof to proceed on the ground," granted diligence to both parties for citing witnesses, and " perambulated the March in question in presence of the parties' procurators." When one reads Sir Walter Scott's final judgments in these two cases respectively (see Nos. 22 and 73 in Appendix), in which he fixes the line of march, one cannot help hazarding the conjecture that they suggested the description given by Dandie Dinmont (in Guy Mannering,. published about sixteen months later) of the dispute as to marches between himself and Jock o' Dawston Cleugh. " Ye see we march on the tap o' Touthop-rigg after we pass the Pomoragrains ; for the Pomoragrains, and Slackenspool, and Bloodylaws, they come in there,, and they belang to the Peel ; but after ye pass the Pomoragrains at a muckle great saucer-headed cutlugged stane that they ca' Charlie's Chuckle, there Dawston Cleugh and Charlie's Hope they march. Now,. I say the march rins on the tap o' the hill where the wind and water shears ; but Jock o' Dawston Cleugh again, he contravenes that, and says that it bauds down by the auld drove-road that gaes awa by the Knot o' the Gate ower to Keeldar-ward ; and that makes an unco- difference." ^ • Penmanscore is a remarkable hollow on the top of a high ridge of hills dividing^ the valley of Tweed from that of Yarrow, a little to the east of Minchmuir. 2 Chap, xxxvi. A CASE OF ABSTRACTED MULTURES Thirlage, treated in Scots law as a servitude or easement, was an obligation under which the occupiers of specified lands were astricted to a particular mill. In other words, they were bound to have their grain ground at the mill of the thirl. It was a trade monopoly. When a landlord embarked on the expenditure of erecting a water-mill, in order to secure an adequate return for his outlay through the rent of the mill he required all his tenants to bring their grain to be ground there, and prohibited the use of querns or hand-mills. Thirlage came to bristle with a formidable terminology of its own. Thus the area astricted to the mill was called the thirl or suchen, and those in possession of the lands astricted were the suckeners. The dues for grinding, paid in kind, were termed multures. Multures paid by the suckeners were called insucken or in-town, while those paid by strangers were denominated outsucken or out-town multures. Sequels were payments due to the servants of the mill, such as iannock, and lock or gowpen. Knaveship was due to the under-miller. When a suckener took his corn to be ground elsewhere, he was liable to the mill of his thirl in dry multures and so forth. In The Monastery^ Sir Walter Scott contrives to introduce practically all these terms into a brief and somewhat artificial part of a dialogue between Elspeth and Hob Miller. In The Pirate,^ too, there is a similar conversation between Triptolemus Yellowley and his sister, in which most of these terms again make an obtrusive appearance. Sir Walter had a thirlage case before him in Selkirk Sheriff Court in 1808. Mr. James Pringle of Torwoodlee, and William Neil, his tenant in Newmilns, brought this action against George White, Caddonlee and Fairnalee. By his lease the defender had bound himself to grind all the corns he should use for his family at the mill at Newmilns. The pursuers complained that, notwithstanding ' Chap. xiii. 2 Chap. xi. 53 54 A CASE OF ABSTRACTED MULTUEES this obligation, the defender abstracted from the said mill all the corn used by him and his family; and although the said William Neil required the defender to make payment to him of the ordinary mul- tures, sequels, and knaveship of the corns and grains so abstracted, he refused to do so. The first interlocutor, in Scott's handwriting, was this : — "Selkirk, 2'6rd March 1808. — The Sheriff-Substitute having advised with the Sheriff-Depute, finds the defender has subjected himself in damages for abstracted multures, since the law of Thirlage, though no favourite of modern practice, cannot while existing at all be made the subject of manifest evasion ; therefore Appoints the defender to lodge a Condescendence of the extent of his abstraction as concluded in the libell. "(Signed) Chaeles Eeskine." This the defender failed to do; and a freSh order was made on him: — " Selkirk, Vlth August 1808. — The Sheriff-Depute renews the former order for lodging a condescendence, under certification that, if it is not complied with, he will decern in terms of the libell. "(Signed) Walter Scott." A condescendence was not lodged, and the defender presented a reclaiming petition. Following on this, the final judgment (in Scott's handwriting) was in these terms: — "Selkirk, 2Uh Jwne 1809.— The Sheriff-Substitute having advised with the Sheriff-Depute, In Eespect the defender has failed to shew by Condescendence that he has implemented the terms of his lease, Eefuses the petition, finds him liable in Ten pounds sterling as the modified value of the abstracted multures, and also in expenses. "(Signed) Charles Erskine." A SUCCESSFUL RECLAIMING PETITION In one instance at least reclaiming petitioners were successful in their appeal to the Sheriff to alter his judgment. Apparently in their appeal they brought under his notice a decision to which his attention cannot have been called when he pronounced his earlier judgment. John Davidson, residing in Edinburgh, presented a petition to the Sheriff in 1809, in which he showed "That his son William enlisted in the Eoyal Artillery, leaving his wife and three children a burden upon the petitioner; that he was unable to support them; that he had made application for the support of the children to the three parishes where they were born, vizt. Lauder, Duns and Galashiels ; that the two former parishes had enrolled the two children in the Poor's EoU of their respective parishes; but that the parish of Galashiels refused to allow anything for the support of the child born there, in respect the parents had not resided three years in that parish before the child was born." In support of his claim Davidson referred to a case decided in the Supreme Court — The Heritors of Melrose and Stitchell V. The Heritors of Bowden?- The following interlocutor was pronounced : — "Edinbuegh, {sic) Selkirk, 22nd March 1809. — The Sheriff- Substitute having advised with the Sheriff-Depute, finds that the Heritors of the parish of Galashiels are liable in the main- tenance of William's (sic) Davidson's second child; Therefore Decerns in terms of the libel, and finds expenses due. " (Signed) Charles Erskine." The heritors reclaimed by petition, and this interlocutor was pronounced : — 1 (24th January 1786, Mor. 10584), in which it was held that the parish of birth was liable in the support of poor children who had not resided three years in any other parish, although their father had at one time been resident for that length of time in another parish, hut had left it some years before his death. 56 A SUCCESSFUL RECLAIMING PETITION "Selkirk, lUh March 1810.— The Sheriff-Substitute having advised with the Sheriff-Depute, as the point of law is of some consequence. Allows the petitioner to state his plea on the merits in a reclaiming petition. " (Signed) Chas. Eeskine." " Note. — The Sheriff-Depute requests all questions of form may- be decided by the Sheriff-Substitute either instanter, or, should he think proper, by short minutes to be advised by the Sheriff-Depute. The inconvenience and expense arising from long written pleadings upon a mere point of form is sufficiently obvious, especially in such a case as the present." The heritors lodged another reclaiming petition, to which answers were made, and the following interlocutor was issued : — " Selkirk, ?ith August 1810. — The Sheriff having advised this petition and answers, in respect of the later practice of the Supreme Court,^ Alters the Interlocutor reclaimed against, finds that the parish where the pauper's father last had a settlement is liable in support of his family. Therefore Assoilzies the Heritors of Galashiels parish from the conclusions of the Summons, and Decerns, but finds no expenses due. "(Signed) "Walter Scott." ' Presumably reference is here made to the case of Howie and Kirk-Session of Alyth V. Kirk-Session of Arhroath and St. Vigeans (25th January 1800, Mov. App. voce Poor, No. 1), which had decided that the settlement of a legitimate child was determined, not by the place of his birth or residence, but by the residence of his parents. THE SALE OF A GARDEN, EEDEEMABLY On 7th July 1801 William Eodger, hosier in Selkirk, "sold" to Alexander Cunningham, residenter there, his garden, lying to the south of the churchyard, for £29. The terms of the transaction were that the garden was to be redeemable by Eodger at any time within three months, on his retiring a bill at the Bank of Scotland which Cunningham had signed. Eodger did not redeem the garden or retire the bill within three months, or, indeed, within three years; and in 1804 Cunningham raised an action to have Eodger ordained to execute a disposition of the garden to him, or, alternatively, to make payment of £20. Judgment was given in these terms : — "Selkiek, 31st July 1805. — The Sheriff having considered the process. Dismisses the Summons on the first conclusion as incom- petent before this Court ; on the alternative conclusion finds the Defender liable in payment of Twenty pounds Sterling, with interest from and since the 7th July 1801, Finds him farther liable in expenses of process, modifies the same to half a guinea and Decerns. "(Signed) Walter Scott." There is no further step in the process for nearly five years. In 1810 Eodger lodged a " Counter Lybell." His counter-claim, he said, was in an " account, which will to a triffle (sic) extinguish and pay " the ■sum of £20 decerned for five years before. The amount of this account was £18, 8s., and it had been incurred mainly for " the use of apart- ments." This account had been founded on by Eodger in his original •defences. Cunningham pleaded prescription. This plea was repelled in the following judgment (written by Scott, though signed by Erskine) : — "Selkirk, 14:th March 1810. — The Sheriff-Substitute having advised with the Sheriff-Depute, Eepells the Defence of Prescrip- tion in respect of litigiosity, and ordains the Defender in the counter claim to lodge Defences m caitsa. " (Signed) Chas. Erskine." 57 58 THE SALE OF A GARDEN, BEDEEMABLY This note is added, also in Sir Walter's handwriting : — " Note. — In this as in another process the Sheriff desires that the pro'^i will confine their pleadings to law or fact, stating points of form verbally to the Sheriff-Substitute." Cunningham appealed to the Sheriff, by reclaiming petition, to reconsider this judgment as to prescription. This is disposed of in an interlocutor and note written by Sir Walter himself : — "Selkirk, 11th July 1810.— The Sheriff-Substitute having advised with the Sheriff-Depute, Eefuses the prayer of this Petition, and adheres to the Interlocutor reclaimed against. "(Signed) Chas. Eeskinb." "Note. — The Sheriff- Depute should hardly have thought it. necessary to inform the gentleman who signs this petition that litigiosity in the Scottish law only signifies generally that the sub- ject has been agitated in a Court of Justice, as in the present case by the Eespondent founding upon this account in his original defences within the three years, which appears to the Sheriff sufficient to remove the presumption of the Statutory prescription against its being resting owing." ^ This action went no further. Presumably it was settled extra- judicially. ^ Procurators, i.e. solicitors. 2 " The gentleman who signs this petition " was Mr. Alexander Park. It i» obvious, however, that this was not a correct use of the word " litigiosity." Its opera- tion is not in the realm of prescription. In this use Sir Walter held, in effect, that by being pleaded in a defence within the three years, the debt on the account was- "perse wed within three zeires'' in terms of the statute, which would otherwise have limited the mode of proof. DISPUTE BETWEEN EMPLOYER AND WOEKMAN A curious story was told by one Alexander M'Kenzie, " plaisterer " in Gattonside, in an action which he raised (14th November 1810) against his employer, John Hall, "plaisterer" in Selkirk, to recover £3, 16s. of wages. M'Kenzie said that he had been engaged by Hall on 22nd June 1810 to work as a journeyman with him. His remuneration was to be 15s. per week, "besides Bed and Board in a deacent manner, wages being to be cleared off every month, and the complain er to be supplied with subsidising money." According to M'Kenzie, at 12th September Hall, was owing him this sum of £3, 16s., and "the said John Hall having then desired the said complainer to make out his accounts for each month separately, he snatched from the complainer the discharged accounts for the month ending 7th August without having paid him the balance due thereon, being £1, Is." The remaining £2, 15s. was for work between 7th August and 12th September, when M'Kenzie left his service. In his defences to this action Hall denied that he was owing one farthing of pursuer's wages preceding 12th August. "The story recited in the libel," he averred, " is a gross falsehood." It was very improbable that pursuer would have continlied "nearly a full month '' after the defender was said to have committed such a violent and improper act. One may pause to point out that M'Kenzie alleged that this incident of the snatching of accounts took place on 12th September, and accordingly he did not continue in the defender's service thereafter. Hall produced the discharged accounts. He also brought a counter-claim against M'Kenzie for damages for desertion on 8th September, " without giving complainer the usual and proper intimation of his intention, or assigning a just reason for his so doing, and when he was engaged in finishing a job," which required to be instantly finished, "to his great loss, hurt, and prejudice." There were, of course, answers and replies. But these do not throw any further light on the facts. The Sheriff decided the matter by the following interlocutor (in his own handwriting) : — 59 €0 DISPUTE BETWEEN EMPLOYER AND WORKMAN " Selkirk, IQth September 1811. — The Sheriff-Depute, having advised the original Summons and Counter libel, conjoins the pro- cesses; and on the original question finds the Defender liable in the admitted balance of Two pounds twelve shillings and sixpence, and Decerns ; but assoilzies qtioad ultra, in respect of the written discharge produced, which can only be set aside in a regular action of reduction on the grounds of fraud or violence; Finds the Counter libel incompetent in respect of the missive of Agreement containing no stipulation as to warning or date of service, Therefore Assoilzies Alexander M'Kenzie from the conclusions of the said Counter libel; finds the pursuer ^ liable in expenses. Modifies the same to seven shillings, and Decerns. "(Signed) Walter Scott." ' This must be the " pursuer " in the counter-libel, i.e. Hall. A SUBSCRIPTION TO THE SELKIRK MASONIC LODGE In the year 1817 George Young, saddler, and others, sued Ebenezer Clarkson, surgeon, for £10, being the price of two shares subscribed by him towards the building of a Masonic Lodge in Selkirk. The defender pleaded that there had been a departure from the original plans, and that he had not been consulted in the matter. Sir Walter Scott pronounced judgment as follows : — "Selkirk, 2Qth August 1817. — The Sheriff-Depute having advised the Summons, with defences and Answers, in respect that the proceedings respecting the plan and execution of the proposed lodge were of a public nature, and that it is not alleged that the Defender stated any objections to the plan finally adopted or that the said plan is inapplicable to the purpose for which the subscription was made, namely, that of a suitable mason lodge. Finds the Defender liable in payment of Ten pounds sterling, and in the expenses of this process. "(Signed) Walter Scott." SEARCH FOR COAL AROUND SELKIRK We catch a glimpse of an enterprising but fruitless venture in the brief record remaining of an action in the Sheriff Court in 1817. James Leitch, wright (i.e. carpenter) at Lindean Mill, sued Mr. Eobert Henderson, writer, Selkirk, as treasurer of a committee appointed at Selkirk to search for coal around the adjacent country. Leitch's claim was for £3 for wright work, and £5, 10s. 2d. for smith work, in con- nection with operations ordered by the committee. In defence Mr. Henderson pleaded that he had no funds, and that there had been no employment. The following was the judgment : — " Selkirk, 3rd September 1817. — The Sheriff-Depute having advised this process, finds Mr. Henderson qua Treasurer liable in payment of the within mentioned sums of Pive pounds and three pounds 10/2 (sic) with expenses of process, and Decerns, and ordains Mr. Henderson to exhibit the original subscription paper that it may appear what subscriptions are outstanding; But supersedes ^ all personal diligence - against Mr. Henderson in respect he has no funds in his hands at present. "(Signed) Walter Scott." ^ Stays. Cp. supersedeas in English law. 2 I.e. all process of law by which Mr. Henderson's person might be attached in order to carry the judgment into effect. Probably, however, what Sir Walter intended was not this grammatical meaning of his words, but rather "stays all diligence against Mr. Henderson as an individual." It is unlikely, in the circum- stances, that he intended to leave Mr. Henderson's property attachable for a debt of this nature. A FIARS COURT FOR SELKIRKSHIRE " Fiars Prices " are the standard prices of grain fixed for the year by the Sheriff". The purpose of so fixing or " striking " these prices is to settle the rate at which the stipends of the clergy, payable in grain, are to be converted into money ; as well as for any other pay- ments which are referable to the current value of agricultural produce.'- In 1812 certain prominent persons in the county of Selkirk pre- sented a petition to the Sheriff, in which they set forth " that it has been the practice from time immemorial for the Sheriffs throughout Scotland to ascertain the average selling prices of grain within their respective counties by means of an inquest,^ which prices so ascertained are called the Sheriff Piars,^ the use of which was to liquidate the price of victual in diverse processes that came before them and the sub- ordinate judicatories." After narrating the passing by the Supreme Court of the Act of Sederunt, 21st November 1723, the petition pro- ceeded : — " As the county of Selkirk is chiefly a pastoral country, very little grain was raised in it in former years ; but in consequence of the late improvements in Agriculture, and the general spirit of interprise which has lately prevailed among the cultivators of land, a considerable change has now taken place in this respect, and large quantities of grain are annually raised, particularly in the lower parts of the county." On this account it had " become desireable that fiars prices should be struck in future in this shire as well as in other parts of Scotland." " This measure had now become the more necessary in consequence of the late Act of Parliament* regulating the practice of the Court ' The term " fiar " here used is not to be confounded with the word " fiar " mean- ing the owner of heritable property. The two differ in etymology as well as in meaning. " Fiar," as used here, is identical with the Middle English feor, Old French feur, a price — a derivative from the Latin forum in its sense of a market, and therefore denotes a "market price." Cp. Act 1584, cap. 22, in Record Edition of Soots Acts, iii. 304. ^ I.e. a jury. ^ In early times the Sheriff was a fiscal officer of the Crown, and it was his duty to fix the rate at which Crown rents payable in grain were to be converted into money. This was the origin of the term Sheriff's fiar. i The Teinds Act, 1808 (48 Geo. III. cap. 138). 63 64 A FIABS COURT FOB SELKIRKSHIRE of Teinds,^ by which Act it is appointed that all Ministers' Stipends allocated in Victual shall in future be payable according to the highest fiars prices to be struck within the County." The signatories to the petition were John C. Scott, W. E. Lockhart, Alex. Pringle, M. Anderson, William Scott, John Boyd, Eobt. Ballantyne, Geo. Eodger, J. W. Anderson (for the burgh of Selkirk), George Brydon, Crosslee, and James Grieve, Howden. The deliverance following on this petition is in the handwriting of Sir Walter Scott, and is dated and signed by his Substitute : " Selkirk, 30;!^ May 1812.— The Sheriff-Substitute, with advice and authority of the Sheriff-Depute, finds the prayer of this petition reasonable, and Declares that in future the Fiars of the County shall be regularly struck in terms of the Act of Sederunt and of the prayer of the petition, and that the Sheriff will accord- ingly fix the proper time for striking the fiars of the present year, and appoints this petition and deliverance to be recorded in the Court Books. "(Signed) Chas. Eeskine." (The procedure at the Fiars Court is to summon a certain number of jurymen, and to select fifteen of these to form the inquest ; and also to summon witnesses who have been engaged in selling grain. The members of the inquest also act on their own knowledge of prices. A fee of some guineas is available for the jury. An interesting variance in the manner of apportioning this fee prevails in the Courts in the different counties. In some places the fee is divided among the jury- men in equal sums ; in some it is appropriated to the six who chance to be first selected by the ballot ; and I understand that in one locality, at least, an " adjournment," is made after the conclusion of the business, and the jurymen draw lots as to which one of their number shall secure the whole sum !) ' A department of the Court of Session. Teinds in Scotland correspond to tithes. A "LOOSE AND IRREGULAR" BILL TRANSACTION George Mark, tenant in Mossilee,^ presented a petition to the Sheriff, in which he stated that upon 5th August 1808 he had been prevailed upon by Ebenezer Knox, tenant in Crosslee, to sign as drawer a bill for £30. The bill had been left blank in certain particulars and was to be filled up by Knox. Knox afterwards told the petitioner that he had destroyed the bill. He had not destroyed it, but had made it bear to be for £50, and that the petitioner was acceptor. Knox still retained the bill and "holds the petitioner as debtor" under it. Therefore Mark craved the Court to ordain Ebenezer Knox to undergo a judicial examination in the matter, and to appoint him to deliver up the bill in order that the same might be cancelled ; or in case of failure to do this, to find him liable in £100 as the damages which the petitioner might sustain in and through the said Ebenezer Knox having made use of his name in such an improper manner. The Sheriff disposed of the matter by the following judgment : — " Selkirk, 22'nd July 1812.— The Sheriff-Depute Ordains Mr. Paterson, Junior, Agent for the Defender, to lodge the Bill in question in the hands of the Clerk of Court not to (be) delivered up by him unless upon authority of the Commissary Court and on proper receipt by their Clerk ; and in respect that the Bill if ever discounted must have been regularly retired by the discounter when due and that it cannot now be made the ground of charge against the petitioner, refuses the prayer of the petition quoad ultra, and the whole transaction being of a nature the most loose and irregular finds no expences due to either party. "(Signed) Walter Scott." 1 One of the accused in the Sabbath-breaking case, supra, p. 37. FEEIGHT AND INSURANCE OF WOOL In an action brought in 1813, James Kidd, the manager for th Leith and Hull Shipping Company, sued James Cunningham, tenan in Gamescleugh, for £19, 14s. 7d., being for the freight and insuranc of wool shipped to. Hull from Leith in the pursuer's company's smacki Cunningham admitted being due this sum less £3, 8s. Id., and he con signed into Court the amount for which he admitted he was liable. I: his defences he said that, being himself unacquainted with the mode c carrying wool from Leith to Huddersfield, he applied to his friend Messrs. Grieve & Scott, wool merchants, Edinburgh, to make th necessary arrangements. These merchants got from the pursuer letter quoting terms, and the defender claimed that this was bindin on the pursuer. The pursuer sued for the freight and insurance a ordinarily charged. There were defences, answers, replies, and duplies In the end. Sir Walter Scott pronounced this judgment (which is in hi own handwriting) : — "Selkiek, 10th November 1813.— The Sheriff-Depute havin; advised this process, finds that the letter by the pursuer t Messrs. Grieve as explanatory of the terms on which he trans ported wool is binding upon him in this action, therefore assoilzie the Defender from payment of the disputed sum of Three pound eight shillings and a penny and decerns, and finds the Defende entitled to his expenses ; farther appoints the undisputed balane consigned in the hands of the Clerk of Court to be paid to th pursuer and grants warrant accordingly. "(Signed) Walter Scott." 68 A DEAL IN SHEEP George Paterson, tenant in Twiglees, sued John Little, tenant in Fairnilee, for £14, the price of sheep sold and delivered. In his defences Mr. Little told this tale. "The fact is that the pursuer brought 39 to Langholm fair, for which he had formerly been offered by a butcher from Moffat 28s. each ; but at the fair no person would give more than 25s. The pursuer was on that account rather laughed at by the dealers; and, in order to keep himself in countenance, he requested the Defender to take the sheep and send them to his brother George at Edinburgh, to be sold for the pursuer's behoof ; but he begged the Defender at the same time not to make the transaction public, adding that he would state the same to be as advantageous as if he had concluded with the butcher at Moffat." Accordingly the defender sent the sheep to his brother, and he produced his brother's account, in which he gives the pursuer credit for £48, being the balance of the price received after deducting £1, 14s. for charges. "By that account it appears that the Defender is in no way a party to the transaction." He said he had handed to Paterson £40 of the £48, leaving a balance due by the defender of £8, subject always to a reasonable allowance for his trouble. The Sheriff pronounced this interlocutor : — "Selkirk, 2bth April 1812. — The Sheriff-Depute, in order to avoid the expense of a proof, and in respect the Defender seems to acknowledge receipt of the sheep and not to deny that in the eye of the public he was to be held liable for the full price of 28s. per sheep, appoints him to condescend and say how he intends to prove the alleged private condition between him and the pursuer that the sheep, though bought in open market at a fixed price, were in fact only entrusted to him upon commission, and prohibits him from putting any arguments into the said Condescendence. Appoints the pursuer to answer the same. "(Signed) Walter Scott." 67 €8 A DEAL IN SHEEP The defender in reply had " no hesitation in referring the point to the oath of the pursuer himself." Eeferred it was accordingly. The result was not to support the defender's story; and the Sheriff gave iinal judgment in this interlocutor: — " Selkirk, 1st September 1812.— The Sheriff having advised this process with the oath of party in causa, find the Defender liable in the sums pursued for as libelled, and also in expenses of process and decerns. "(Signed) Walter Scott." AN INTERESTING TWEED ACT PROSECUTION In December 1810 the procurator-fiscal brought a charge of contra- vening the Tweed Fisheries' Acts against Michael Anderson, Esquire, of Tushielaw. This must have been a cause cddbre in Selkirkshire. The proceedings were remarkable not only from the fact that they were taken against a landed proprietor and well-known county gentleman, but also from the curious nature of the facts alleged. A first summons was served on the date mentioned, in which Mr. Anderson was accused of having fished for and killed fish in the rivulet called the Eankle Burn during close time; and a second summons was served on 20th February 1811 (and ultimately substituted for the earlier summons) in which the charge was not only of fishing for and killing fish in the said rivulet and in the Ettrick and other rivers and streams which com- municate with the Tweed, and in the Tweed itself, but also of buying or selling, or having in his custody or possession, fish of specified classes, knowing the same to have been taken during close time. It is not surprising, perhaps, that the procurator-fiscal should have amended his charge in this way, when the evidence actually adduced by him is considered. Two witnesses were examined. James Freer, mason in Selkirk, deponed that in November 1810, in the way of his duty as surveyor of the highways in the county, he went to Tushielaw to meet with Mr. Anderson, to accompany him to some roads that were being made up at Eankle Burn. The party, consisting of Mr. Anderson, his servant, and witness, when about two miles above Buccleuch, where the burn is very small, were obliged to ride up the middle of the runner. Mr. Anderson was first, witness next, and the servant last. " When in the burn, a fish, either a large trout or of some other species, taking the alarm, and being disturbed by Mr. Anderson's horse, made a sudden run and actually forced itself out of the burn on the dry rocks. Mr. Anderson passed on, and the witness coming next with a stick in his hand, bowed himself forward and with his stick killed the fish, but did not then take it up." On their way back Freer got off his horse, took up the fish, and " carried it home to Tushielaw, and gave 70 AN INTERESTING TWEED ACT PROSECUTION it to a boy at the Stables, without giving him any directions relative to the disposal of it, but whether the boy was a hired servant of Mr. Anderson's or not " he did not know, but he had seen him about Mr. Anderson's stables both before that day and after it. Freer dined at Mr. Anderson's house that day; he stated that he ate some salt sea-fish, but he did not recollect of seeing in Mr. Anderson's house that day, or of eating there, any fresh-water fish. A servant in Mr. Anderson's employment, Nelly Scott, stated that on the day in question a fish was brought into the kitchen, but by whom she did not recollect. It was about 14 or 15 inches in length, " one of those trouts which come up the burns about the Martinmas time." She boiled the fish, and said she had no doubt it was used in Tushielaw house. (The proceedings and the evidence are set forth at length in the Appendix, No. 66.) Sir Walter Scott's judgment in the case was as follows : — " Selkirk, 2Uh March 1813. — The Sheriff having advised the proof led and whole cause finds that the pursuer has failed to prove either that Mr. Anderson killed or had in his possession a salmon trout, Bull trout, Salmon, or Whitling, contrary to the provisions of the Act, therefore assoilzies the Defender and decerns. But in respect of the circumstances set forth in the proof finds no expenses due. " (Signed) Walter Scott." THE SHERIFF MAKES USE OF HIS LOCAL KNOWLEDGE Mr. John Boyd of Broadmeadows brought an action against Gideon Scott, tenant in Kirkhope,(a) for £10 for damages sustained through trespass committed by Scott's servants upon the pursuer's lands, and (6) for £10 as further damages for the wanton and illegal conduct of the defender's servants in leaving the gates of the pursuer's inclosures open whereby a number of cattle strayed from their proper inclosure into a field of turnips and potatoes belonging to the pursuer, which they injured. The occasion was a sale by auction of stock. The two interlocutors (which are both in the handwriting of Sir Walter Scott) are as follows : — "Selkirk, 26th February 1812. — To avoid if possible the necessity of an expensive proof in the cause the Sheriff-Substitute having advised with the Sheriff-Depute appoints the Defender to lodge a Special Condescendence of what he avers and offers to prove concerning the conduct of his servants or the persons employed by him on that occasion which gave rise to the complaint of the pursuer. "(Signed) Chas. Erskine." " Selkirk, 28th July 1813. — The Sheriff-Depute having advised the proof for both parties and whole cause finds it proved that a trespass has been committed in respect it is admitted by the Defender's own Witnesses that the drivers turned one of Mr. Gibson's cattle into a park of the petitioner and from the positive evidence of Glendinning compared with the imperfect recollection of John Shiel, who had probably been assisting at the conviviality of the roup ^ as usual on such occasions, as well as from the sketch produced and the Sheriff's own local knowledge of the place, finds ' Auction. 71 72 SHEBIFF MAKES USE OF HIS LOCAL KNOWLEDGE that the persons employed to remove the cattle neither proceeded with proper discretion nor took the right road; therefore finds- the Defender liable in damages which he modifies to one guinea sterling as also in expenses; and decerns. "(Signed) Walter Scott." . £0 8 12 8 4 6 . 8 1 . 8 £2 1 3 DRAM GLASSES FOR THE KING'S BIRTHDAY ENTERTAINMENT James Inglis, merchant in Selkirk, sued George Young, saddler in Selkirk,! for £2, Is. 3d., made up as follows :— Dram Glasses — Loan, 1 day 9| lbs. Refined Sugar at Is. 4d. per lb. 1 doz. large lemons 1 doz. Dram glasses Balance on Barley Loan of 16 doz. at 6d. per doz. Per bargain The defender in his defences stated that, having to accommodate the company at the entertainment given on the King's birthday in June 1813, he applied to the pursuer for sugar and lemons wanted by him on that occasion, and asked to be accommodated with a number of glasses, which it is customary for the person who furnishes the goods to the innkeeper to give gratis on these occasions. The defender kept one dozen glasses, and after the action was raised paid £1, 13s. 3d. to account, leaving unpaid only the disputed 8s. (for hire of glasses). He stated that the glasses were returned on the day following the entertainment. When the glasses were received by him "they were all covered with dust and dirty, and he returned them to the pursuer clean and sound, and, in fact, better of being used." To this the pursuer answered that the merchants of Selkirk, having found that their glasses sold very ill, the innkeepers and others wishing much rather to borrow than to buy them, agreed upon having a small profit for their trouble and risk, and accordingly charged 6d. per dozen for the loan. " The pursuer does not know that glasses sell the better 1 Young, who from this case appears also to have been an innkeeper, was pursuer (as a Freemason) in the case for recovery of a subscription to a Masonic Lodge (see p. 61). 5f3 74 THE KING'S BIRTHDAY ENTERTAINMENT of being cleaned, and states that he broke a tumbler glass in taking down the glasses, which cost him 2s." The judgment in Sir Walter Scott's handwriting was this : — " Selkirk, 28th DeceTnher 1814. — The Sheriff-Substitute having fully advised with the Sheriff-Depute, and having maturely con- sidered the Summons, Defences and Answers, finds that the pursuer is admitted in the defences to have intimated his intention to charge for the use of the glasses and though the charge appears extravagant being equal to one fourteenth part of the value of the commodity but yet it was never explicitly departed from or modified, But finds there is an overcharge of sixpence in respect one dozen of glasses were purchased, for the loan of which that sum is charged ; Therefore finds the Defender liable in the sum of seven shillings and sixpence and decerns. But assoilzies quoad ultra, and finds no expences due. "(Signed) Chas. Erskine." THE ILLEGAL REMOVAL OF A CART AND HARNESS William Laing, Sinton Mains, brought an action against John Smith, carter in Selkirk, for recovery of £10, 10s., the value of a cart and harness belonging to the pursuer, which he alleged the defender had taken from the custody of an innkeeper in Edinburgh, " who was keeping the same for the pursuer." Smith admitted having removed the cart and harness, but stated they had been handed over by him to another man. The first interlocutor (by Sir Walter Scott) was : — " Selkiek, 20th January 1813. — In respect that it is admitted by the Defender that he assumed the custody of the pursuer's property without any authority and that he suffered it to be abstracted from him by a third person instead of taking any effectual means to restore it to the owner, finds him liable in the value thereof, and that the same may be ascertained Appoints the pursuer to condescend upon the original price of the cart, the time he had it, and the manner in which he used it. "(Signed) Walter Scott." In obedience to this order, Laing stated, by a minute, that the ■original price of the cart was £8, 10s., and of the harness and chains £3, 10s. He had it about two months in his possession, " and drove it six journeys to Edinburgh." Whereupon this judgment was issued : — " Selkirk, 1st September 1813. — The Sheriff having advised this Minute, and no Answers having been lodged, finds the defender liable in the sum of ten pounds ten shillings pursued for and decerns, and further finds him liable in expence of process. "(Signed) Walter Scott." 75 A CASE OF MEDITATIO FUGJE In 1818 one Jean Crawford, the daughter of an Excise Officer in Melrose, applied for a warrant to imprison William Sandilands, labourer at Philiphaugh, in respect that he was in meditatione fugce. According to the law of Scotland, when a creditor can make oath that his debtor contemplates leaving Scotland, or that he has reasonable ground for believing that he intends to do so, he may apply to a magistrate for a meditatio fugce warrant, and the magistrate will grant a warrant for appre- hending the debtor for examination, and may afterwards, if so advised^ grant a warrant to imprison him until he finds a guarantee that he will be forthcoming to answer to the suit. Sir Walter Scott did not act as the magistrate in this case, although the petition was presented to the Sheriff. It was Erskine who disposed of the application. But, as Jean Crawford was residing in Edinburgh, it was necessary to have her state- ment on oath taken there. Accordingly, for this purpose, the Sheriff- Substitute granted authority to Walter Scott, Esquire, Sheriff-Depute of the Shire, to take the petitioner's evidence on commission. Sir Walter took her evidence as directed, and reported ^ to the Sheriff-Substitute. This meditatio fugce warrant was a favourite theme with Sir Walter Scott, the author. Many allusions to it are scattered through his novels. Eor example, in Bedgauntlet^ Peter Peebles bursts into the library of the English Justice of the Peace and startles that functionary with,. " Gude day to ye, gude day to your honours ; is't here they sell the fugie warrants ? Is it here where ye sell the Warrants ? — the fugies^ ye ken ? " And Edie Ochiltree in The Antiquary^ interrupts the learned discussion of Monkbarns on imprisonment for debt, with the result of his ripe experience, thus — " Ay, that will be what they ca' the ' fugie ' warrants ; I hae some skeel in them. There's Border warrants too in the south country, unco rash uncanny things. I was ta'en up on ane at Saint James's Fair, and keepit in the auld kirk at Kelso the haill day ' See Appendix, No. 100. ^ Chap. vii. ^ Chap. x.Kxix. A CASH OF MEDITATIO FUG^ 77 and night ; and a cauld goustie place it was, I'se assure ye." Then, too, in the account which Scott wrote of his cruise with the Commissioners of Northern Lighthouses in their yacht in the Vacation of 1814 he records this jest which he made : — " 3rd August. — At Sea, as before ; no appearance of land ; pro- posed that the Sheriff of Zetland ^ do issue a Meditatione fugce warrant against his territories, which seem to fly from us." ' His friend William Erskine afterwards Lord Kinedder. THE FEENCH PRISONEES OF WAE In an action raised by William Scott and fourteen others, " all in Galashiels/' against Alexander Turnbull, Whitebanklee, we have rather a pathetic picture of the plight of seven Frenchmen in the year 1814 — if, that is to say, TurnbuU's account of the incident comes anywhere near the truth. These fifteen men from Galashiels ^ stated that they were employed by Turnbull, upon a day in May in that year, "to assist in conveying seven French Prisoners of War from Whitebanklee to Selkirk, for which he received the reward given by the Transport Board for the apprehension of such prisoners, besides the necessary expenses." Yet he refused to pay them " for their trouble and expenses, being Five pounds eleven shillings Sterling, per award of James Pringle, Esquire, of Torwoodlee, one of His Majesty's Justices of the Peace for the County of Selkirk." This award they produced. It was as follows : — "Account for Apprehending French Prisoners and Conveying THEM TO Selkirk. Galashiels. To 3 Constables going to Clovenfords and sitting all night and going to Selkirk with seven French Prisoners of War. To 12 Asst. to do. do. from Gala. 2 from Whitebanklee to Selkirk. 8 Men sitting all night. George Turnbull per Carts and ale . . . . £1 4 10 Two carts . . . . . . . 12 3 Constables @ 9s. 12 Assistants @ 7s. 2 Men to Whitebanklee 3s. 8 Sitting up @ Is. 6d. To George Turnbull for information £1 16 10 £1 7 4 4 £5 11 6 12 £6 9 6 £6 15 (Signed) J. W. Pringle. ' Their names will be found in the Appendix, No. 79. 78 THE FRENCH PRISONERS OF WAR 79- " Sir pay the constable in Galashiels the sums as stated within to satisfy all those employed in apprehending the French Prisoners. " Torwoodlee, 30th May 1814. (Signed) J. W. PRiNaLE, J.P. "To Mr. Alex. TurnbuU, Whitebanklee." Alexander TurnbuU lodged defences. In the course of this docu- ment he states that " in the month of November 1813 a number of the French Prisoners of War confined at Valleyfield or Pennycuik, con- trived to make their escape from one of these depots. Favoured by the darkness of the night, they were fortunate enough to elude the vigi- lence {sic) of their Pursuers, and by that means were at large, wandering about the country for some days. Late in the evening, on the third day after their escape, seven of them in a body, came to the Defender's house at Whitebanklee and enquired for quarters. They, after partaking some refreshment, were shown into an Outhouse, where they took up their abode for the night. Suspicions having arose in the Defender's family, from their language and other circumstances, that they were prisoners who had either broken their Parole, or escaped from confinement, and that they might probably make an attempt on their property or person, they came to the resolution of making the circumstances known to Mr. Pringle of Torwoodlee, who resided in the neighbourhood. In consequence, one of the Defender's- sons was despatched to Torwoodlee with the information, who very properly desired him to go down to Galashiels, and procure the assist- ance of two or three constables, which he accordingly did. So soon„ however, as the report spread, that there were a number of Frenchmen at Whitebanklee, and that three constables had gone up there to assist in apprehending them, the whole town was in a bustle; numbers rushed on of their own accord to the scene of action, some armed with guns and pistols, others with bludgeons and such warlike weapons. In the course of the night the Frenchmen's habitation was thus com- pletely beset and the whole had rather the appearance of a beseiging {sic) army, than anything that can be conceived to the contrary. Wext day the seven prisoners were, in the above way, escorted to Selkirk, and the grotesque appearance of the cavalcade as they entered the town was truly ludicrous, particularly when it is known that these poor unfortunate prisoners were strongly secured with ropes and other devices, to prevent their escape, and were guarded, in addition to the Constables employed, by above thirty of the number, who had assembled at Whitebanklee the preceding evening to enjoy the fun. An account 80 THE FRENCH PRISONERS OF WAR of expenses was shortly afterwards given in to the agent for Prisoners at Selkirk from various parties, which was transmitted to the Transport Board for their approbation. The accounts, however, were returned in course of post by the Board who expressed the greatest surprise at the very extravagant charge made, and the number engaged in the con- veyance of the prisoners to Selkirk : indeed the Board were so aware of the absurdity of the charge that they restricted the sum to a mere trifle in comparison to the original charge. On application by the Defender, the Transport Board authorised their agent in Selkirk to allow him at the rate of one guinea for each prisoner, which he received, besides an allowance of about £7 for the expenses of apprehending them, which was paid to the Constables who were employed in the business, to be divided amongst those engaged in the transaction according to their claims. " These are therefore the grounds upon which the present Action is founded; and the Defender contends, that he is neither by law nor Justice bound to pay these pursuers the sum of £5, lis. claimed by them. It is quite true that he received a reward of £7, 7s. from the Transport Board for the seven Prisoners before mentioned but this was exclusively his own ; he got no part of the expenses allowed on that head ; and if the pursuers did really assist in the escort to Selkirk, they must look to the Constables who received these expenses for payment of their trouble. The Defender himself never employed them, and if they were so obliging as to volunteer their services on this occasion, without being called upon by the Defender so to do, they have only themselves to blame. " Supposing even that the Defender was by law bound to pay the Pursuers for their trouble, he conceives the rate fixed by Mr. Pringle by far too extravagant; for they are allowed at the rates of 9s. and 7s. each for assisting in conducting the prisoners to Selkirk, a distance of little more than six miles: whereas the Transport Board only authorised their agent to pay each such person the sum of 2s. 6d. The Defender is therefore fully aware, that Mr. Pringle was misled when he granted the order produced in process, and was also ignorant of the rate of allowance granted by the Transport Board, and of the circum- stance of the expenses allowed being paid over by the Agent directly to the Constables for the purpose of being divided amongst those employed as already mentioned, without his receiving any part thereof. The Defender has no wish to withhold from any person what may be THE FRENCH PRISONERS' OF WAR 81 fairly considered as due to him, but in this case he is persuaded he owes the Pursuers nothing, having never employed them in the transaction alluded to; all that he desires therefore is that your Lordships will remit to Mr. Pringle to make farther enquiry into the transaction, and to revise his order with the rate of allowance made by the Transport Board, and to ascertain who received the expenses already received, and how it has been applied. If it shall be thus ascertained, that the Defender is liable to the Pursuers in payment of their demand, he will at once accede to any order which that Gentleman may grant, but as matters stand he cannot." The pursuers, of course, lodged answers. Of the defences they say : — " Of this paper which consists of no less than 9 pages scarcely as many Ijnes relate to the point before your Lordships. It is some- where however therein said that the Defender did not employ the Pursuers in the business alluded to in the Libel. This is not true, his son came to Galashiels and employed every one of them, and when they set out with the Prisoners he the Defender regretted that there was not more strength, the Frenchmen being as he said strong desperate fellows and armed with large knives. It is somewhere else said that the Constables were paid the sum allowed by the Transport Board as Expenses in apprehending the Prisoners. This they as positively deny. The three constables employed are pursuers in this Action and not one of them has received one penny. The whole money both reward and expenses was paid by the Agent of the Transport Board to the Defender himself, and it would be excessively hard were the Pursuers through whose services both were gained to him not to be allowed their reason- able hyre. "The Defender has also quarrelled with the sums allowed by Mr. Pringle of Torwoodlee to each of the Pursuers for their trouble but as he was acquainted with the trouble they had and the time their services were employed having been up all the night in Whitebanklee stable and engaged all the next day, it is not believed your Lordships will be pleased to quarrel the rates of allowance he has made. Indeed the Pursuers may contend that His Majesty's Justices of the Peace are alone authorised by law to fix the rates of allowances to Constables or other persons employed in the Police of the Country so that Mr. Pringle's Award is in this case binding to all intents and purposes. "The agent who has signed these Defences was, it is understood, 6 82 TH]i: FBENGE PRISONERS OF WAR also the agent for the Transport Board; and the Pursuers could not have believed he would have signed a paper he must know in some respects to be false, particularly where it is said that he paid the constables. The Pursuers, however, think the Defender's agent may have been led in a mistake in this respect from his having at the same time he paid the Defender also paid to Mr. John TurnbuU, at that time merchant in Galashiels, now in Selkirk, a similar reward and a certain sum of expenses for apprehending Five Prisoners of War at Galashiels, and carrying them to Selkirk, but that Mr. TurnbuU to his credit behaved in a different style than Mr. TurnbuU the Defender as the moment he received his reward and expenses for these five he without waiting for any Award from Mr. Pringle or any action before your Lordships immediately divided the whole money both reward and expenses amongst himself and his assistants. " If Mr. TurnbuU the Defender had too large a party for apprehend- ing the seven prisoners it was his own blame and if he has not got a. sufficient allowance from the Transport Board which, however, he ha& yet carefully concealed, it is neither their fault nor their business to inquire; they were employed by him and by him they must be paid." The Sheriff first issued this interlocutor : — "Selkirk, 22nd March 1815.— The Sheriff-Depute having advised the Summons with defences and answers Eemits to James Pringle Esquire of Torwoodlee under whose authority as a Justice of Peace the parties acted requesting he will have the goodness to report whether or to what extent the concurrence presently pur- suing are entitled to any share of the sum paid by government for apprehending the French prisoners of war. "(Signed) Walter Scott." Mr. Pringle reported thus : — "Torwoodlee, 20th September 1815. — Having considered your Lordship's remit of the 22nd March last, see no cause for altering the rate of payment formerly ordered to the assistants in appre- hending the seven French Prisoners at Whitebanklee, as I have always understood the Bounty of £1, Is. per man, was payable only on the delivery of the prisoner at the nearest depot, consequently the expense of bringing him there must come off said bounty. "(Signed) J. A. Pringle." THE FBENGH PRISONERS OF WAR 83 The Sheriff decided in favour of the fifteen men of Galashiels. "Selkirk, Vlth January 1816. — The Sheriff-Depute having advised this Process with the report of James Pringle Esquire, Finds the Defender liable in payment of the sum of Five pounds eleven shillings sterling with interest from the date of citation. Finds him also liable in expenses of process and Decerns. "(Signed) Walter Scott." ^ • Another reference to the presence of French prisoners in the neighbourhood will be found in Case No. 78 in the Appendix. THE DESTEUCTION OF A DOG James Anderson, the farmer of Whitslaid, with concurrence of the procurator-fiscal, brought an action against William Eae and John Oliver, both herds in Shaws, for damages for killing a valuable pointer dog belonging to him. He asked £20 " as pretium affectionis and value of the dog," and the procurator-fiscal asked £10 of penalty for cruelty. The defenders stated that they had seen the same dog " running amongst their lambs " on a previous occasion, and later a number of lambs were found dead, " evidently caused by the bite of dogs." On the occasion in question they alleged this dog was again running among the lambs. They did not say it was " touching " them. They saw it ; then the lambs scattered. " So they fell upon him and despatched him." The following interlocutor, written by Sir "Walter Scott, was issued : — "Selkiek, 2nd March 1814. — The Sheriff-Substitute having advised with the Sheriff-Depute, in respect that every case of this kind must depend upon circumstances, allow the defenders, who admit having killed the dog, a proof of the circumstances set forth in their Defences and the pursuer a conjunct probation as accords and requires attention to the two following points, whether the dog could have been secured without killing him supposing always he was not found in the act of worrying sheep, and secondly whether it had a collar at the time or was known to belong to the pursuer. "(Signed) Chas. Eeskine." A proof was begun. So far as it went, it bore out the averments of the defenders, but there was no evidence of the dog having been seen worrying sheep. There was an adjournment. After the lapse of a considerable time the Sheriff-Substitute ordered the proof to close on a certain date. But, so far as appears, no further evidence was led, and there were no further proceedings in the case. 84 A HUMBLE TEADE What must appear to us to-day to be a curious gradation of the callings in life is to be found in the defences in a case of Moffat against naldane, in 1815. The action was one for aliment of a child, and the defender pleaded that the rate of aliment claimed (£8 a year) was too high for people in the rank of life of himself and the pursuer. " He was bred a mechanic," he said, " and carried on the business of a wright, and on ceasing to carry it on owing to his circumstances being reduced he is now compelled to betake himself to the humble trade of an inn- keeper in the village of Galashiels." Sir Walter modified the rate to £6 per annum. (See infra. Appendix, No. 77.) RIGHT TO ATTEND A HIRING FAIR The question whether a servant is entitled to attend a hiring fair against his master's orders was raised, but not expressly decided, in a nase before Sir Walter Scott in 1817. John Horsburgh, who had been engaged as a " Barn man " by John Mark,^ farmer at Mossilee, attended the Public Hiring Market of Selkirk in 1816, although his master had refused him permission to go. He brought an action for wrongful dismissal, although his master had not dismissed him. Sir "Walter's interlocutor, written by him and signed by the Sheriff-Substitute, was in these terms : — "Selkirk, 8th January 1817. — The Sheritf-Substitute having advised with the Sheriff-Depute, and having considered the proof and whole process. Finds the pursuer absented himself from his Master's service against his orders upon Wednesday Sixth March, and did not return until the morning of the next day. Finds that notwithstanding this misdemeanour his master offered to receive him back on condition he would be a steady and regular servant till Whitsunday, and that the pursuer left his service without reply, Therefore finds the Defender only liable in payment of wages corresponding to the period for which the pursuer actually served him namely down to the Sixth day of March, Finds the pursuer liable in expenses of process and allows an Account to be given in and allows the pursuer to retain the said proportion of wages j)ro tanto of the said expenses. "(Signed) Chas. Eeskine." 1 This is the John "Merk" who was one of "the persons charged with vicarious Sabbath-breaking, supra, p. 37. THE LITIGIOUS MR. PARK It is obvious that the Sheriff Court had no terrors for Mr. George Park, tenant of Carterhaugh and of Oakwoodmill. Eather, it may be said, it attracted him. One can imagine at least (for I do not know whether it is the ease) that he was related to the famous traveller, Mungo Park, whose statue has a deserved prominence in the town of Selkirk, and, therefore, also to the Mr. Alexander Park who was so redoubtable a pleader in the Selkirk Sheriff Court at that time. Of the cases disposed of by Sir Walter Scott, George Park was a party in six, and in a seventh ^ he had at least this reflected glory, that it was his shepherd who was accused of poaching. In two of these six cases (No. 61 and No. 82) Park was the pursuer. He won the former completely, and in the latter his success was considerable — but so was that of his opponent. In four actions (Nos. 14, 37, 45, and 57) he was defender. In two of these the success was divided ; in a third the case was settled after a judgment which seems to indicate that Park was on the high road to success ; and in the fourth, the Toll case (see p. 43), he was successful, because, while he defied the toll-keeper on the day of St. Boswells Fair, he afterwards had the shrewdness to offer to pay the small sum due before it was too late. One of these cases (N"o. 82) was brought by Mr. Park against Andrew Cowan, a contractor. Interdict was asked against the defender, while he was building a march dyke, from opening up quarries on, and driving stones through. Park's fields. Sir Walter Scott's first interlocutor was in these terms : — "Selkirk, 24 Interim interdict had been granted by the Honorary Sheriff-Substitute, Mr. Borrowman, on 18th April 1818. 101 102 THE RIGHT TO CAST FEAL AND DIVOT Finds the Eespondent liable in ten shillings penalty and in expense of process, but in no further damages, and Decerns. "(Signed) Walter Scott." The defender appealed, by reclaiming petition, against the granting of expenses — unsuccessfully. " Selkirk, ^th August 1820. — The Sheriff-Depute having heard this petition with Answers, refuses the same in respect damages always carry expenses. But refers to the Court to modify the Accompt of expenses when lodged, in respect of Mr. Anderson's plea of hona fides. " (Signed) Walter Scott." AN APPRENTICE'S CLAIM FOR DAMAGES A protracted case regarding the right of an apprentice to damages originated in 1824. George Chisholm, weaver in Galashiels, for his son Joseph Chisholm, a minor, raised an action against James and Henry Brown, clothiers in Galashiels, for damages for dismissal. The pursuer alleged that Joseph became indentured to the defenders for a term of four and a half years, with wages at the rate of 4s. per week in name of board for the first three years, and 5s. per week for the remain- ing year and a half, and also an equal share with the other apprentices of the machine-room flocks ; with also cloth for a coat, vest, and two pairs of trousers. After being four weeks in the defenders' service, for which he received 4s. weekly, Joseph was induced to board with the defenders; and in addition to the above articles of clothing he was promised a pair of boots yearly. He stated that after being some time longer in the service he was dismissed. The defenders in their answers stated that no written indenture was entered into, and that the pursuer was only taken on trial, as was the custom in Galashiels. At a later stage they further stated that the pursuer's conduct was unsatisfactory. The first interlocutor (of which a part is torn and illegible) was as follows : — " Selkikk, 24th March 1824. — The Sheriff-Depute having con- sidered this Process, Finds it is not denied that the formal terms of an Indenture were fixed on between the parties and that it was acted upon for six months on both sides — finds that the Defenders have alleged no sufficient cause for resiling from their agreement therefore appoints them to enter into such an Indenture , . . the boy in terms thereof and Decerns. "(Signed) Waltek Scott." The defenders appealed, with this result : — " Selkirk, 21st July 1824. — The Sherifi'-Depute having advised this Petition and Answers adheres to the Interlocutor reclaimed against. "(Signed) Walter Scott." 103 104 AN APPBENTICES CLAIM FOR DAMAGES At this stage the defenders alleged that the pursuer's conduct was so unsatisfactory that they were justified in dismissing him. This judgment followed: — " Selkirk, IZth December 1824. — The Sheriff-Suhstitute having advised with the Sheriff-Depute, finds that the allegations that the apprentice was idle, incapable in a degree approaching to idiocy, lazy, and disobedient, are habile reasons for dismissing him and may be admitted to proof. But in respect that they are not stated in the original Defences finds that the Petitioners can only be admitted to a proof thereof upon making payment of all the expenses incurred in process previous to the date of the Petition. "(Signed) Cha. Eeskine." These allegations as to conduct were given up by the defenders when they were called upon to prove them. Sir Walter then pro- nounced the following interlocutors: — "Selkirk, ^th March 1825. — In respect the Minuters have departed from their assertions in point of fact, or at least declined to substantiate them by proof, the Sheriff-Substitute having advised with the Sheriff-Depute recals the Interlocutor of 15th December and adheres to that of twenty-fourth March Eighteen hundred and twenty-four. "(Signed) W. Scott." " Selkirk, 11^^ July 1827. — The Sheriff-Depute of new ordains the Defenders to receive the Pursuer into their service upon his entering into an Indenture with a cautioner^ conform to the Interlocutor of 24th March 1824 and appoints the said Indentures to be executed within a month from the date hereof under certi- fication that the Sheriff will otherwise renew consideration of the question with a view to damages. "(Signed) "Walter Scott." The pursuer presented a reclaiming petition asking damages. " Selkirk, 26^A Septemler 1827. — The Sheriff-Depute appoints this Petition to be seen and answered on the point how far damages ought in the present case to come instead of performance of the contract. " (Signed) Walter Scott." ' I.e. Guarantor. AN APPRENTICES CLAIM FOB DAMAGES 105 "Selkirk, Ith November 1827. — The Sheriff-Depute having advised this Process finds the Eespondents Messrs. Brown liable in Five Pounds as damages corresponding to the lad's being out of V7ork from Twenty-first January 1824 to 9th March 1825 and also in payment of expenses of process down to that day, But in respect of the circumstances finds them liable to no further damages or expenses. "(Signed) Walter Scott." The defenders appealed by reclaiming petition. Thereupon the protracted suit was finished by this judgment : — " Selkirk, 2^rd July 1828.— The Sheriff adheres to the Inter- locutor reclaimed against, and of new decerns for the modified sum of expenses in name of Walter Hogg, agent for the Pursuer, during the period of litigation for which expenses are found due and disburser thereof. Finds the Defenders liable in three guineas of expense as their proportion of Expence of Extract and Decerns. "(Signed) Walter Scott." A POACHER'S ASSAULT CASE In 1827 John Gordon, a labourer in Bridge End, presented a petition to the Sheriff, stating that, on 16th October 1826, " within the jurisdiction of your Lordship's Court," he was assaulted by James Fletcher, gamekeeper, Bowhill, and another person unknown, and that his gun was forcibly taken from him by the unknown person at the desire of Fletcher. He craved that the gun should be returned to him, and that Fletcher should be found liable in £20 damages for the assault. Gordon admitted frankly that he was poaching at the time of the assault, and, further, that he had been fined £10 by the Commissioners of Supply for carrying a gun without a licence. Fletcher pleaded that " the pursuer could not sue without the consent of the procurator-fiscal, and that the locus delicti was too generally specified." After a con- descendence and answers, the Sheriff issued the following interlocutor. Notwithstanding that in form it is a deliverance by the Sheriff-Sub- stitute, it was written and signed by Sir Walter Scott, and the Sheriff- Substitute (now Mr. William Scott, for Charles Erskine was dead) had no hand in it. "Selkirk, 11th July 1827. — The Sheriff-Substitute appoints parties to revise their condescendence and Answers for the purpose of stating the hour of the night or morning upon which the trans- action took place as alleged, and also to state more explicitly the fact whether the gun is returned or not, and in whose custody it now is. Thereafter appoints parties to say whether they hold the record as closed. " (Signed) W. Scott." The final judgment (again in Scott's handwriting) in the case was: — " Selkirk, 20{h March 1811. — The Sheriff-Substitute having advised with the Sheriff-Depute, Pinds it incompetent to prove the alleged bargain as to the making of road between the Eoad Trustees and the Defender by the evidence of the Trustees or that of their Minutes, seeing that they are in a certain degree parties to the cause and have omitted to procure the farther written evidence of the bargain at the time it took place ; Pinds farther that the alleged verbal communings are too loosely stated to be a proper subject of proof; Therefore assoilzies the Defender and Decerns; Pinds the pursuer liable in expenses of process and APPENDIX 137 appoints an accompt to be lodged, reserving always to the pursuer a reference to Mr. Cunningham's Oath before extract if he should be so advised. " (Signed) Charles Eeskine." 42. 1811. — Suspension of Sheriff-Officer. William Dunlop, Sheriff-Officer in Selkirk, vyas suspended on account of " his having executed a summons, on the Fishing Act, with- out witnesses, although witnesses are mentioned in his execution." A petition was presented on behalf of the procurators (the solicitors) of the Court, praying that Dunlop should be reponed ?igainst the minute suspending him, on account of the inconvenience to the petitioners, there being only one other Sheriff-Officer in the county. The following deliverance (in Sir Walter's handwriting, the note being also initialed by him) was pronounced : — "Sblkiek, lUh March 1811.— The Sheriff-Substitute having advised with the Sheriff-Depute in respect of the repeated and scandalous misconduct of William Dunlop while in execution of his duty as a Sheriffs Officer Eefuses the prayer of this petition. "(Signed) Chas. Eeskine." Note. — " The Sheriff-Depute is very sorry the petitioners should be put to any inconvenience but he should be wanting to (sic) his duty, and very negligent of the administration of Justice entrusted to his charge if he were to grant the prayer of this petition and indeed would probably incur the marked censure of the Supreme Court. "(Intd.) W. S." 43. 1811. — Tweed Fisheries Act : Contravention. Geoege Eodger, Procurator-Fiscal, Selkirk, against Geoegb Aied and John Neil. Prosecution for taking fry. After a proof, the following inter- locutor (written by Scott) was pronounced: — "Selkiek, 12th June 1811. — The Sheriff-Substitute having advised with the Sheriff-Depute, in respect the destruction of Fry is a much more wanton offence than the killing of full grown fish, finds the defenders liable in the sum of six pounds sterling each and in expences of process. "(Signed) Charles Eeskine." 138 APPENDIX 44 1811. — Sale : Sheep : Price. Egbert Arras, tenant in Eink, against William Hume, tenant in Hollybush. This was an action to recover £10, 15s., being the balance of the price of iifteen score of lambs sold and delivered by the pursuer at St. Boswells Fair. The claim was stated with an account in which the lambs were entered at the price of 10s. each (£150), and credit was given for £139, 5s. as received (by bill £60 ; in cash £10 ; grass mail £3, 10s. ; straw £2, 15s. ; and a crop of beans £63). In defence it was stated that eighty-four lambs were not delivered at the fair, but later, and were to be charged at the price at the time of delivery. The pleadings are somewhat confused. The interlocutors (all in Sir "Walter Scott's handwriting) explain the course of the ease, as far as it went. The case began in 1807. "Selkirk, Zth August 1807. — The Sheriff having considered this Minute, Answers, and Whole Cause, Appoints the pursuer before Answer to lodge a Condescendence stating 1st what was the period fixed on for delivery of the lambs and particularly whether the whole number were ready to be delivered on or before St. Boswell's fair, 2dly, whether he undertakes to prove that the price fixed at St. Boswell's fair as mentioned in the Minute applied as well to the eighty-four lambs not delivered as to the larger number already lifted by the Defender. 3dly. What was the difference between the Boswell and Lambmas prices for lambs of the description of those last lifted. "(Sgd.) Walter Scott." "Selkirk, 2Zrd March 1808.— The Sheriff-Depute having advised with the Sheriff-Substitute, Allows the pursuer a proof of the terms of his bargain and the Defender a conjunct probation as accords. " (Sgd.) Chas. Erskine." " Selkirk, ^th August 1810. — The Sheriff having advised the proof and whole cause finds that the specific nature of the bargain has not been established by either party. But finds that the pursuer disposed of another number of lambs of the same quality APPENDIX 139 with those sold to the Defender and at the same time at ten shillings per head ; therefore finds the Defender is liable for those sold to him at the same rate and Decerns, But finds expenses due to neither party. " (Signed) Walter Scott." The defender appealed by reclaiming petition, and the Sheriff pronounced the following interlocutor: — "Selkirk, Ith August 1811. — The Sheriff-Depute having advised this petition with Answers Eefuses the prayer thereof and adheres to the Interlocutors reclaimed against. Conjoins the counter action at Mr. Hume's instance with the present process finds the reference to oath upon the disputed articles as stated in Mr. Hume's Answers competent and ordains Mr. Arras to appear and depone in terms of the said reference before answers and that upon the day of "(Signed) Walter Scott." The case must have been settled. There are no further proceedings. 45. 1811. — Master and Servant : Wages. John Eutherford, labourer, Oakwoodmill, against George Park, tenant in Carterhaugh. An action for payment of wages. The case did not proceed to final judgment; but the following interlocutor was issued: — "Selkirk, 1th August 1811. — The Sheriff having considered this process, in respect that it is admitted that the pursuer was engaged to work a pair of horses and actually did work them both before and during the time of harvest, finds that it is incumbent upon him to prove what is set forth on the second page of the Answers respecting his master having agreed to give him reaper's wages and allows him a proof of the said fact either by oath of party or by recovery of the book mentioned in the same page or by any other mode of proof. "(Sgd.) Walter Scott." 140 APPENDIX 46, 1811. — Sale: Breach of Warranty. James Yule, merchant in Kelso, against James Inglis, shoemaker in Selkirk. The defender sold to the pursuer the carcases of two swine, which he alleged to be " clean pork," but which, on being cut up, turned out to be stale ; further, one was discovered to be a boar seig.^ Pursuer claimed damages. The following interlocutor was pronounced : — "Selkirk, 2mh August 1811.— The Sheriff-Depute allows the Pursuer a proof of the fact that the Defender warranted expressly the pork sold to him as clean pork; and allows the Defender a counter probation, and also a proof that the pork was killed within due time before the sale and that it was sold under market price. "(Signed) Walter Scott." At this stage the case was probably settled, as there are no further judicial proceedings. 47. 1810. — Breach of Peace : Damage for Destruction of Property. Egbert Brown, weaver in Galashiels, with concurrence of the Procurator-Fiscal, against James Haig, weaver in Galashiels. Action for value of table, etc., alleged to have been destroyed by defender, combined with criminal charge against him of riot and breach of the peace. The circumstances and the judgment are set forth at p. 48. 48. 1811. — Master and Servant: Wages: Desertion of Service. Alexander M'Kenzie, "plaisterer" in Gattonside, against John HalL, "plaisterer ■' in Selkirk. An action for payment of wages, with a counter-action for damages for desertion of service. I The circumstances and facts are set forth at p. 59. 1 Or segg. Cp. passage in The Monastery, i. 140—" An' what made you, ye misleard loons," said Dame Elspeth to her two boys, " come yon gate into the ha', roaring like buUsegs, to frighten the leddy ? " APPENDIX 141 49. 1811. — Succession : Executor : Accounting. Agnes Dickson, Selkirk, " widow to the deceased Charles Hislop there," and others, against George Kodger, writer in Selkirk. This was an action of accounting in the executry estate of Charles Hislop, Selkirk, and for delivery of the deeds, rights, and securities of the estate, heritable and movable. It was' disposed of by the Sheriff by the following interlocutor, written by him : — "Selkirk, 1th August 1811. — The Sheriff-Depute having advised this process finds that in accounting with the pursuers Mr. Eodger must debit himself with the interest upon Baillie William Eodger's Bill for One huiidred pounds down to the term preceding the Baillie's death. Finds him entitled to credit for his Account of Business and remits to the Sheriff-Substitute to fill up the articles left blank, to strike a balance on the Account and Decern therefore. "(Signed) Walter Scott." Note. — "The Sheriff thinks it necessary to mention that the sole ground of this decision is the ground of law which renders an Agent liable in strict diligence in the affairs entrusted to him and there is no occasion for pleading it as a question of character." The defender reclaimed, and the Sheriff issued the following interlocutor : — "Selkirk, %th November 1811. — The Sheriff-Depute having advised this Petition and Answers, adheres to the Interlocutor reclaimed against, finds the proposed reference to oath of party incompetent and refuses the prayer of the Petition. "(Signed) Walter Scott." 50. 1811. — Succession : Executor : Exhibition of Titles. William White, Buccleugh Street, Edinburgh, " nephew and heir- apparent " of the deceased Eeverend Doctor William Dalgleish, minister of Peebles, petitioner. A petition against executors to exhibit titles. The Sheriff pronounced this judgment, written by his own hand : "Selkirk, 16th September 1811. — The Sheriff-Depute declines to judge in the present case on the ground of incompetency, 142 APPENDIX reserving to the petitioner to bring his action of exhibition ad deliberandum ^ in a regular manner and competent Court ; Finds the petitioner liable in expenses, modifies the same to twenty shillings, and Decerns therefor. "(Signed) Walter Scott." 51. 1812. — BouTidary : Cost of March Dyke. Archibald Dunlop, Esquire, of Whitmuir, against The Magistrates OF Selkirk. This was an action against the Town Council to have them ordained to concur in erecting a march dyke at the South Common. The magis- trates agreed to this, but claimed an increased rent from the pursuer, he being tenant under them of said lands of South Common. The facts and differences, so far as material, appear from the follow- ing interlocutor, which is written on counter-libel No. 2 by Sir Walter Scott :— "Selkirk, 8th January 1812. — The Sheriff-Depute having con- sidered the original proof with the two counter actions, and defences, answers, etc. Conjoins the same and in the original action Decerns in terms of the libell and finds the Defenders liable jointly with the pursuer in building the March dyke in question. Finds in the counter action 'No. 2 that Mr. Dunlop is bound to bring forward a Cautioner in terms of his obligation and Decerns accordingly but Assoilzies him from the claim of penalty. " Finds in the counter action No. 7 that Mr. Dunlop having as tenant of the town lands the same benefits which any other tenant would have derived from the March dyke in question is, in terms of his obligation liable in payment of Six per centum of additional rent upon the sums which shall be expended in building the same, and Decerns and Declares accordingly. Finds the Magistrates of Selkirk liable in the expense of the original summons and Mr. Dunlop liable in the expenses incurred in the two counter actions, and allows an account to be given in. " (Signed) Walter Scott." ' This is an action which an apparent heir might bring to have the titles exhibited in order that he might determine whether he should accept the succession. APPENDIX 143 52. 1812. — Process : Proof; Reference to Oath : Signature of Party. John Scott, merchant in Buckholmside, against Eobeet Jerdan and John Jeedan, tenants in Laidlawstiel. This was an action for payment of a merchant's account, for goods supplied to Eobert Jerdan and Mrs. Jerdan down to 1809, £4, 6s. lOd., and to John Jerdan down to 1807, 19s. 6d. Eobert consigned 19s. 2d,, which he admitted to be due for goods supplied to his servant Margaret Haldane. Quoad ultra the defenders pled prescription — that is to say, that the claim came under the Act 1519, cap. 83, by which is enacted that " all actions of debt for . . . merchant's compts . . . that are not founded upon written obligations, be pursued within three years, other- wise the creditor shall have no action, except he either prove by writ or by oath of his party." Eobert averred that Mrs. Jerdan had got from pursuer a discharge of the account, but that it had been lost or laid aside. He stated that he was ready to depone on oath that it was long ago paid. The following interlocutor, with note, was pronounced, sustaining this plea : — "Selkirk, 25th April 1812.— The Sheriff-Depute having advised the summons, defences and whole process, finds the reference to oath competent ; Appoints the same to be subscribed by the pursuer with his own hand, and, upon his doing so, Appoints the Defenders, Eobert and John Jerdan and also Mrs. Jerdan to appear and depone under certification,^ the next Court day after such signed reference shall be intimated to them. "(Signed) Walter Scott." JVote. — " The Sheriff begs to call the attention of the pro" ^ in his Court to doubts which have been entertained how far the signature of a pro' can bind his client in a reference to oath. The practice which has crept in appears at least loose and doubtful, and therefore, the Sheriff will not in future sustain any reference unless the same is subscribed by the party as well as his agent. "(Initialed) W. S." The action must have been abandoned at this stage. There are no 1 I.e. here, the assurance that decree will be given against them. 2 Solicitors. 144 APPENDIX further proceedings, beyond this interlocutor by the Sheriff-Substitute : — " 24th June 1912. — In respect Mr. Jordan is unable to come from home remits to John Dalzell, Writer, in Earlston to take his oath and report." 53. 1812. — Lease: Hypothec: Diligence of Creditor of Tenant. John Coese Scott, Esquire, of Sintoun, against William, John, James, and Andrew Tuknbull. This was an action at the instance of the landlord against the tenants for arrears of rent, etc., and complaining that subjects liable to the pursuer's hypothec were in danger in respect that the effects were poinded and in danger of being abstracted and carried off under letters of horning by the British Linen Bank. The first interlocutor (written by Sir Walter Scott) was as follows : — " Selkirk, 2d,tli August 1 810. — The Sheriff having heard this petition recalls in hoc statu the Warrant for sale of the poinded effects and prohibits and discharges the said Ebenezer Gilchrist from catrying off the same until the right of the petitioner be either satisfied or discussed and grants similar interdict against all persons whatsoever and grants Warrant in common form to the Clerk and Officers of Court to pass to the farms of Parkhead and Langtoun and there to inventory and sequestrate the whole crop, stocking, household furniture implements of agriculture and other effects whatsoever found upon the farms aforesaid. But before Answer as to the prayer for authorising the Sale thereof appoints this petition to be intimated to the within named William, John, James, and Andrew TurnbuU and also to Messrs. Eodger and Paterson, Agents for the said Ebenezer Gilchrist and Allows them or any of them to see and Answer the same, the Answers to be lodged with the Clerk of Court on or before Saturday fi.rst, under certification. "(Signed) Walter Scott." The tenants presented a petition to recall the warrant of sale of the poinded effects granted at the instance of Mr. Ebenezer Gilchrist, but to prohibit the carrying off of the petitioner's effects. On this the Sheriff pronounced this interlocutor: — "Selkirk, 21s* September 1810. — The Sheriff conjoins the APPENDIX 145 present application with those at the instance of Mr. Corse Scott and Mr. Ebenezer Gilchrist, and Appoints the said Ebenezer Gilchrist to see and Answer the same and that within three days from the date hereof, under certification. "(Signed) "Walter Scott." Answers were lodged ; and this interlocutor followed : — "Selkiek, IWi October 1810. — The Sheriff having resumed consideration of the Petition with Answers and whole cause Conjoins the same with the application at the instance of John, James, and Alexander Turnbulls and Finds 1st That the Landlord Mr. Scott's claim of hypothec over the stock and crop extended to the sum of five hundred pounds being the current year's rent and that the hay ricks and pease-stacks stated to be part of crop Eighteen hundred and nine are further hypothecated for the arrear of Seventy one pounds nineteen and eightpence, and decerns. 2dly Finds that the poinding creditor may be allowed to proceed with his diligence upon his satisfying the Landlords claims in the same manner to which the Tenants were bound namely paying such part of the rent as is instantly due and by granting security for payment of that moiety falling due at next term. 3rd. Upon the application of the Messrs. Turnbulls the Sheriff finds that diligence used against the stock of a farm possessed by the brothers pro indiviso upon a debt which ex facie appears to be due only by one of their number can only affect the individual interest of the debtor and therefore the effect of Mr. Gilchrist's poinding must be regulated by the issue of the Count and Eeckoning among the brothers. Lastly in ease the poinding creditor shall not in these circumstances chose to avail himself of the option given him to relieve the stock and crop of the Landlord's claim the Sheriff will grant warrant of Sale for payment of the rent and for securing the balance for behoof of all concerned. "(Signed) Walter Scott." Mr. Gilchrist thereupon presented a petition to have the matter of the debt referred to the oath of the tenants, and for a warrant instantly to sell. The following interlocutor (in Sir Walter's handwriting) was pronounced : — " Selkirk, 23rd January 1811. — The Sheriff-Substitute having advised with the Sheriff-Depute Finds the reference, to oath pro- 10 146 APPENDIX posed in the petition competent upon, the two following heads: 1st. That the debt of Mr. Gilchrist is a proper debt of the four Brothers or 2dly That William TurnbuU contracted the debt by a delegated authority from the other three brothers and that the proceeds being applied to the farm of which they were joint tenants was in rem versum of all the four, and appoints the saids John, James and Andrew TurnbuUs to appear and depone in Court upon these two points and that on the . . . under certifica- tion, and in the Interim grants warrant of sale of the Sequestrated effects in common form for payment of the rent and for securing the balance of the price for behoof of all concerned such Sale being always under burden of the clause appointing the fodder to be consumed upon the farm. "(Signed) Chas. Erskine." By minute the pursuer asked that the sum due to him out of the sale of the sequestrated effects be paid over to him ; and this crave was granted by the following interlocutor : — " Selkirk, 25th April 1812. — The Sheriff-Depute having con- sidered the above minute and no objections being made grants Warrant to and Ordains the clerk of Court to make payment to John Corse Scott, Esq., of the sum of Four hundred and fifty six pounds ten shilling 11/ J with the expenses of process when the same should be modified. " (Signed) Walter Scott." 54. 1812. — Fiars Court : Order. Petition by John C. Scott and Others, praying that a Court may in future be held in the county of Selkirk for striking the fiars prices. The narrative of the petition and the order of Court following on the prayer are set forth at p. 63. 55. 1812. — Sale: Price: Evidence: Admissibility of Witness: Gum Nota. Andrew Hunter, Nether Barns, against John Fekgrieve and Others, Galashiels. This was an action for balance due for price of corn. The first interlocutor was as follows : — APPENDIX 147 "Selkirk, 28i;A August 1811.— The Sheriff-Depute allows the pursuer a proof of the facts and circumstances by which he means to establish the terms of the bargain reserving to the Court to judge of the admissibility of such witnesses as shall be therein brought forward and allows the Defenders a counter probation as accords. "(Signed) Walter Scott." George Erskine, a witness tendered by pursuer, was objected to on the ground that he was a brother-in-law of the pursuer. Sir Walter repelled the objection by this interlocutor : — "Selkirk, Sth January 1812.— The Sheriff-Depute repells the objection stated to George Erskine's evidence and appoints him to be examined cum nota} " (Signed) Walter Scott." After proof, the following interlocutor, in Sir Walter's handwriting, was pronounced : — "Selkirk, 24:ih June 1812.— The Sheriff-Substitute having advised with the Sheriff-Depute and having considered the proof adduced and whole cause, Decerns against the Defenders in terms of the libel and finds expenses due. "(Signed) Charles Erskine." 56. 1812. — Sale; Wool: Evidence. Alexander DoBsoif, skinner in Selkirk, against Thomas Cook and James Haig, Junior, clothiers in Galashiels. An action for the price of wool sold to the defenders. The action was decided by the following interlocutor, in Sir Walter Scott's handwriting : — "Selkirk, 28th February 1812.— The Sheriff-Substitute having 1 I.e. with a mark or reservation. By our former practice, followed at the time of this interlocutor, certain disqualifications attached to witnesses on the ground of their relationship to one of the parties, or their being his agents, etc. When a person was tendered as witness, to whom such an objection in some measure applied, it was customary to admit him (especially in cases where there was penuria testium) cum nota, with a mark to call the attention of the judge to the partial application of the disqualification, and with a reservation to him to determine the weight to be given to his evidence in the circumstances. Practically, however, no difference was made between this testimony and that of any other witness. 148 APPENDIX advised with the Sheriff-Depute, finds that the circumstances of the case afford tolerable evidence that the Bill granted for twelve pounds was meant to close the transactions between the parties, Therefore directs the sum consigned to be delivered up by the Clerk of Court to the pursuer. Assoilzies from the conclusions of the libel quoad ultra, and finds no expenses due to either party. "(Signed) Chas. Eeskine." The pursuer appealed by reclaiming petition. This was disposed of by an interlocutor and note, both in Sir Walter's handwriting, thus : — "Selkirk, 2Uh June 1812.— The Sheriff-Substitute having advised with the Sheriff-Depute, fiefuses the prayer of this petition, and adheres to the Interlocutor reclaimed against. "(Signed) Chas. Eeskine." Note. — "In explanation of the epithet tolerable, used in the Interlocutor reclaimed against, it need only be observed that parties in the present and in similar cases very often conduct a number of petty and complicated transactions in so confused a manner that a judge has not the full evidence for explicating them which he might desire, and therefore must be contented with the best that the case affords. " (Initialed) W. S." 57. 1812. — Boad : Toll: Temporary T oil-Bar. Thomas Govinlook, tacksman of Selkirk Toil-Bar, against George Park, farmer, Carterhaugh. An action for 3d. of toll duty and 40s. of statutory penalty for passing a temporary toll-bar without payment, on the day of St. Boswells Fair, 1811. The facts and the judgments are set forth at p. 43. 58. \%\2.—Eoad; Toll: Temporary Toll-Bar. Thomas Govinlook, tacksman of Selkirk Toll-Bar, against Mr. Alexander Laidlaw, son of Mr. Eobert Laidlaw, farmer at Philiphaugh. An action for same amount of toll duty and penalty and similar in its circumstances to the immediately preceding action. The facts and judgment are set forth at p. 43. APPENDIX 149 59. 1812. — Master and Servant : Wrongous Dismissal. Thomas Drydon, late servant to Thomas Arras, tenant in Megal Pots, against the said Thomas Areas. An action for wrongous dismissal. The circumstances and judgment are set forth at p. 50. 60. 1812. — Bill of Exchange : Irregularity. George Mark, tenant in Mossilee, against Ebenezer Knox, tenant in Crosslee. A petition regarding a disputed bill transaction. The circumstances and judgment are set forth at p. 65. 61. 1812. — Building Contract : Threshing Mill : Defective Construction. Alexander Hope and Thomas Williamson, masons in Selkirk, against John Heiton, wright at Philiphaugh; and George Park, tenant in Carterhaugh, against John Heiton, wright at Philiphaugh. Actions for damages in respect of defective construction of a thresh- ing mill erected by defender. After a remit to persons of skill to inspect and report on the con- struction of the mill, the following interlocutor (in Scott's handwriting) was issued : — " Selkirk, 2mh February 1812.— The Sheriff-Substitute having advised with the Sheriff-Depute, and having considered the Eeport lodged, Before Answer Appoints Mr. Park to state whether the walls of the premises are made of the thickness covenanted between him and Mr. Heiton, also Appoints Mr. Heiton to state, in a Minute, whether the said walls are executed to the thickness contracted upon between him and Messrs. Hope & Williamson; Further Appoints Messrs. Hope & Williamson to proceed with the repairs recommended in the Eeport, under certification that the expenses will be allowed them if they should be proved to have discharged their duty in the original contract ; Allows them also to see and 150 APPENDIX Answer Mie Minutes appointed to be lodged by Messrs. Park and Heiton if they shall see cause to do so. "(Signed) Chas. Erskine." The following interlocutor was issued : — " Selkirk, Tltid, July 1812. — The Sheriff-Depute having advised the Mutual Minutes, Answers, Eeport of Tradesmen, and whole cause Finds that the "Walls of the Threshing Mill are insufficient by being three inches thinner than is usual or fitting for such a purpose. Finds it is not pretended by either of the contract- ing parties that this departure from the usual mode of building was adopted by instructions from Mr. Park, but on the contrary that the model agreed on was the Threshing Mill at Howden which is stated to be three inches thicker in the walls than that at Carterhaugh. Therefore finds John Heiton, Wright, and Alexander Hope and Thomas Williamson, Masons, liable conly and sevlly '^ in damages to Mr. Park, Modifies the same to the sum of Ten pounds and Decerns, further appoints them conly and sevlly i to perform the various repairs pointed out by the report of Messrs. Paterson and Dobson and such others as may be necessary to put the Mill in a good and sufficient condition under certification that if this is not begun within ten days from the publication hereof Mr. Park shall be at liberty to execute these repairs, having recourse against the said parties for the amount thereof. Lastly in order that it may appear who is to be ultimately liable in the damages and expenses decerned for the Sheriff finds the reference to Helton's oath made by Hope and Williamson is competent and ordains him to appear and depone to all pertinent interrogatories touching the contract which he made with the masons for building the Mill and particularly as to the dimensions of the Walls. Finds Heiton liable to Mr. Park in expenses reserving his recourse against Hope and Williamson if he shall be found to have any. "(Signed) Walter Scott." 62. 1812. — Church : Manse : Bight to Designate Site. The Eeverend Charles Paton, minister of Ettrick, against The Heritors of the Parish. A petition for interdict against the building of the new manse on ■ Conjunctly and severally. APPENDIX 151 the site chosen by the heritors ; for an order oii tlieiii to erect it on a spot pointed out by the petitioner ; and for payment of £50 for damages sustained through his glebe being injured. The circumstances and judgment are fully set forth at p. 31. 63. 1813. — Boundary : Bidlding of March Dyke: Deviation by Mason. The Magistrates and Town Council of Selkirk against James HiSLOP, residenter in Selkirk. The defender was instructed by the magistrates of Selkirk, as owners of the South Common, and by Mr. Dunlop as owner of bhe Whitmuir estate, to build a march dyke between these properties. The expense of the dyke, it was agreed, was to be borne equally by the magistrates and Mr. Dunlop. In this action the pursuers alleged that the defender did not build the dyke on the line pointed out to him, but encroached on the town's lands ; and they prayed for an order on the defender to remove the dyke and to rebuild it at his own expense upon the correct march between the two properties. The defender in his answers stated that he had commenced digging " pitts exactly in the line which he conceived to be the March between the Town's lands and that of Whitmuir," when he was visited by Mr. Dunlop, who told him he was making encroachments on his lands, and with stones and other methods pointed out the very line of march where the dyke is now built . . . and accordingly made the Eespondent commence his operations on the line pointed out.'' Mr. Dunlop denied that he ever gave the contractor orders to deviate from the march line or that he told him he was encroaching on his lands. The following interlocutor, in Sir Walter Scott's handwriting, was issued : — " Selkirk, 6th January 1813. — The Sheriff-Depute having con- sidered this process In respect the Contractor has taken it upon him in building the march fence in question willfully to depart from the line of march pointed out to him and which is admitted on all hands to be the true line, Ordains him to pull down the said March fence and rebuild the same at his own expense upon the original line and Decerns, Eeserving to him competent recourse against Mr. Dunlop if he can prove he acted by his direc- 152 APPENDIX tions and further ordains the alteration to be made by pulling down and rebuilding a few roods at once, and finds Hislop liable in expenses. " (Signed) Walter Scott." 64. 1813. — Unauthorised Custody of Projperty : Liability for Loss. William Laing, in Sinton Mains, ac/ainst John Smith, carter in Selkirk. An action for the value of a cart and harness belonging to the pursuer and removed by the defender from the custody of an innkeeper in Edinburgh. The circumstances and judgment are set forth at p. 75. 65. 1813. — Tweed Fisheries Act : Contravention : Illegal Possession of Salmon. EiTEK Tweed Commissioners against Alison Jamieson, residing in Selkirk. Complaint charging the defender with having one or more salmon in her possession, contrary to the provisions of the Act. The following was the judgment (in Scott's handwriting) : — "Selkirk, IQth March 1813.— The Sheriff-Substitute having advised with the Sheriff-Depute, Finds the defender liable in the statutory penalty of five pounds and in expenses, and Decerns. "(Signed) Chas. Eeskine." 66. 1813. — Tweed Fisheries Act : Contravention ; Fishing in Close Time ; Illegal Possession. George Eodger, Procurator- Fiscal of Court for the public interest, against Michael Anderson, Esquire, of Tushielaw. A charge against Mr. Anderson of having contravened the Tweed Fisheries Act, 47 Geo. III. cap. 29. The summons first served (December 1810), which of course ran in the name of "Walter Scott, Esquire, Advocate, Sheriff-Depute of Selkirkshire and my Substitute," was in these terms : — "Whereas it is humbly meant and shown to us by George Eodger, Writer in Selkirk Procurator Fiscal of Court for the Public Major Interest, That by an Act of Parliament of the Forty-seventh year of his present majesty Chap. 29 — Entitled, an Act to amend and APPENDIX l^"^--' render more effectual three Acts made in the Eleventh, Fifteenth and Thirty-seventh years of his present Majesty for the regulation and improvement of the Fisheries of the River Tweed, It is enacted and Statuted and ordained that from and after the passing of this Act it shall not be lawful for any person or persons to fish for any Salmon, Gilse, Salmon Trout, Bull Trout or "Whitling or any Fish denominated Red Fish in any ancient Grants of fishing in the said Eiver Tweed, or in any River, Rivulet, Brook or Stream, or in any Mill Pool, Mill Lead Sluice or Cut, which communicates with the said River Tweed, or within the mouth or Entrance of the said Eiver Tweed, at any time or times between the Tenth day of October in any year, and the Tenth day of January in the year following, or between Ten of the clock on Saturday night and Two of the clock on Monday morning, nor shall it be lawful at any time or times after the passing of this Act for any person or persons excepting as therein after excepted to fish for any salmon, Gilse, Salmon Trout, Bull Trout or Whitling or Red Fish within the mouth or Entrance of the said River Tweed; and in case any person or persons shall fish contrary to the prohibitions aforesaid every such person or persons so offending shall for every such offence forfeit and pay any sum not exceeding Thirty pounds nor less than ten pounds at the discretion of the Justice or Justices of the Peace or Sheriff-Depute before whom such offender or offenders shall be convicted, and the sum of Ten shillings for every Salmon, Gilse, Salmon Trout, Bull Trout, Whitling or Redfish so taken. Together with the fish so taken and the Boats, Tackle, Nets, Engines and other Devices made use of in fishing for any such Fish and the said Justice or Justices or Sheriff-Depute shall order and direct such Boats, Tackle, IsTets, Engines and other devices to be cut in pieces, burnt or otherwise destroyed; Notwithstanding whereof :»imor true it is and of verity that Michael Anderson, Esquire, in Tushielaw, has been guilty of contravening the foresaid Act of Parliament in so far as upon Friday the Twenty third day of November last, or upon other of the days of that month the said Michael Anderson, Esquire, was guilty of fishing for and killing fish in the rivulet called Rankle Burn running into the River Ettrick; whereby it is manifest that he has been guilty of a most unwarrantable and illegal Act, and in perfect contempt of the before-recited Act of Parliament, and other Acts therein mentioned : 154 APPENDIX Conclusion. " Therefore the said Michael Anderson, Esquire, Defender ought and should be decerned and ordained by our Decreet to make pay- ment to the Complainer of a sum not exceeding Thirty pounds nor less than Ten pounds as a fine incurred by him in contravening the foresaid Act of Parliament in manner aforesaid. To be applied as therein directed ; Besides ordaining the Boats, Tackle, Nets, Engines, and other devices so illegally used by him to be cut in pieces, burnt or otherwise destroyed as a terror to others not to commit the like offence in time coming as also in the expenses of this process and Decreet thereon to follow.^ " Therefore we command and charge you that ye pass and in His Majesty's name and authority and ours lawfully Summon Warn and Charge the said Defender personally or at his dwellingplace upon six days warning, to compear before us within the Council House of Selkirk upon Wednesday the day of in the hour of Cause with continuation of days to answer at the instance of the said Pursuer in the matter libelled. That is to say to hear and see the premises verified and proven and Decreet and Sentence given forth and pronounced therein ut supra, or else to alledge a reasonable cause on the Contrary with Certification as effeirs According to Justice. Given under the hands of the Clerk of Court of Selkirk, 3rd December 1810. " (Signed) Andrew Laing, Clerk." Mr. Anderson lodged defences to this first summons. After reciting at length the charge made against him, he goes on : — "The Defender before he proceeds farther, in defence against the Action ; denies most pointedly the whole Libel as narrated in the Summons, leaving the pursuer to establish the facts by proof : And at the same time, he cannot help expressing his regret and his sorrow that his name should have made its appearance in a Court of Justice as having violated and infringed upon the Laws of his country, more especially those laws, which he has all along been so anxious to respect ; he is also aware that no man within the four corners of this realm has a more perfect reverence for the protection of the Pishing laws in particular as he has on many occasions brought to punishment persons wantonly and improperly ' The indictment, it will be seen, is stated in the form of a syllogism, in accordance with Scottish criminal practice down to 1887. APPENDIX 155 violating those Laws. It is almost unnecessary here to mention that the defender's indefatigable zeal and exertions in promoting the interest of the fishing Acts, and in protecting the Game of every descriptiftn, and bringing to punishment transgressors of those laws in his district of country during the periods forbidden by Act of Parliament is well known to the community at large he is therefore convinced that his name has been very improperly made use of in the present instance, which must have been attempted by some one who has felt the effects of his unremitted exertions in bringing to punishment poachers of every description. " Having stated these particulars the defender shall conclude with this short defence, vizt. he denies most x^ointedly that he ever 'fished for, or killed fish in the rivulet called Kankle burn running into the Eiver Ettrick ' as narrated in the Summons. This being the case therefore the defender feels confident your Lordship will at once assoilzie him from the present groundless Action and find him entitled to his full expenses. Under protestation to Add and Eik. "(Signed) Eobeet Hendbeson." At this stage (18th March 1811) the procurator-fiscal served his second summons. It recites the second section of the Act, and thus alters the charge. In other respects it is identical with the first summons, but the minor premise is in these terms: — " Notwithstanding whereof, true it is and of verity, that Michael Anderson, Esquire, in Tushielaw has been guilty of con- traveening the foresaid Act of Parliament, In so far as upon Friday the Twenty-third day of November last, or upon one or other of the days of that month or of the month of October preceding, or of the months of December and January following the said Michael Anderson, Esquire, was guilty not only of fishing for and killing fish in the Eivulet called Eankle burn running into the Eiver Ettrick, and in the said Eiver Ettrick, and other Elvers and Streams, which communicate with the said Eiver Tweed, and in the said Eiver Tweed itself; But also of buying or selling, or having in his custody or possession Salmon Gilses, Salmon Trouts, Bull Trouts, or Whitlings, knowing the same to have been killed or taken in the said Eiv^r Tweed, or in any Eiver, Eivulet, Brook or Stream or in any Mill Pool, Mill Lead Sluice or Cut, which communicates with the said Eiver Tweed between The Tenth day of 156 APPENDIX October Eighteen hundred and ten and the tenth day of January- last, or between Ten of the clock on Saturday night and Two of the clock on Monday morning, whereby it is manifest that the said Michael Anderson, Esqr. has been guilty of a, most unwarrantable and illegal Act, and in perfect- contempt " of the Statute. Thinking himself to be confronted with two summonses at one and the same time, the defender lodged a minute in which he complained of a second action having been raised without the first having been withdrawn, and craved the Sheriff to ordain the second action to be withdrawn. The procurator-fiscal lodged answers to this minute in which he stated that : — " At the time the second libel against Mr. Anderson was called in Court the Eespondent distinctly mentioned to his Procurator that he ivithdrew the first Action and the reasons that induced him to raise the Second which were no other than that the first libel was imperfect and not so full as the Eespondent intended it to have been, in as much as it did not recite the Second Section of the Act of Parliament libelled on prohibiting persons from having any Fish of the descriptions mentioned in their possession or selling or buying the same during Closstime. " As the respondent wished to supply this defect in order fully to convict the Defender, there can be no doubt that he had it per- fectly in his power to do so and to laithdravj the first libel, which he accordingly did at the time the second libel was called in court, and he therefore craves that your Lordship will appoint the Defender instantly to state peremptory ' defences against the second libel and to find him liable in the whole expenses incurred." The Sheriff pronounced the following interlocutor with regard to the first summons : — "Selkirk, 28th August 1811. — The Sheriff-Depute having considered this process, now deserted by the Procurator-Fiscal, Assoilzies the Defender from the conclusions, therefore finds the pursuer liable in expenses, and Decerns. "(Signed) Walter Scott." With regard to the second summons, he on the same day issued this interlocutor : — 1 I.e. defences on the merits, as distinguished from dilatory or preliminary. APPENDIX 157 " Selkirk, 28(:/i August 1811.— The Sheriff-Depute having con- sidered this Summons finds the same competent as resting upon another clause of the Tweed Act than is fouuded upon in the libell against the same Defender from which he is of this date assoilzied with expenses. Therefore ordains Mr. Anderson to lodge peremptory defences in causa against next Court day. "(Signed) "Walter Scott." Mr. Anderson accordingly lodged defences, which are in terms practically identical with those he lodged to the original summons, with a general denial applying to the new count in the charge. ' The procurator-fiscal lodged answers. " The Eespondent ^ assures your Lordship that it was with extreme regret he in discharge of his duty intended the present Action, and from the information lodged with him he expected the Defender would have made a very different defence against the Action than what he has now offered which lays him under the disagreeable necessity of using the means to bring the complaint home to the Defender by a proof, which, if the information he has received is correct, he will be under no difficulty to do. "Without detracting from the praise which the Defender has very liberally bestowed on himself for his pretended exertions in enforcing the observance of the Act of Parliament libelled on and in detecting and bringing to punishmeiit the offenders against that Act and the Game Acts or what he calls propogating {sic) the intention of the Act founded on, his exertions in these respects have hitherto been of a negative nature, for the Respt. does not remember of a single offender having ever been either brought before your Lord- ship or convicted of contraveening the Acts of Parliament referred to by the Defr. thro' information given by him. It is obvious that if the Defender has contraveened the Statute libelled on the bad example shown by a person in his station in life will have but too great a tendency to encourage the lower orders of society to set at defiance this Enactment of the Legislature the breach of which they are but too apt to consider as no crime. And it is conceived that if the Eespont. shall be successfull in proving that the Defender has been guilty of the offence complained of, his former 1 The procurator-fiscal continues to describe himself as "Respondent.'' This was correct in the Minute stage of the proceedings, but is misleading here. 158 APPENDIX exertions to enforce the observance of the Act libelled on, or his vigilence {sic) to detect persons who may have been guilty of contra'- veening the same, will never justify his own guilt or screen him from the penal consequences of the act. The Defender at the top of page 5 of his Defences has made a feeble attempt to explain away the Statement made in the Libel by pretending that he never fished for or killed fish in the rivulet called Eankleburn and running into the Ettrick, nor had in his possession or sold or bought any of the species of Fish specified in the libel knowing the same to have been killed or taken in the river Tweed and that if such has ever been in his custody or possession it was brought there without his knowledge. The Eespt. has only to observe that both the Act of Parliament and the Libel comprehends "Fish taken in any river, rivulet. Brook or Stream, etc., which com- municates with the river Tweed, and that if the Defender shall be convicted of having fished for or killed fish in any Kiver, Eivulet, Brook or Stream, etc., which communicates with the said Eiver Tweed, or having the same in his custody or possession it is clear and he is equally guilty and will fall to be convicted by your Lordship if the fish so killed by him or had in his custody or possession were taken in any Eiver, Eivulet, Brook or Stream, etc., which communicates with the said Eiver Tweed as if they had been killed in the said Eiver Tweed itself ; and it is not to be believed that the fish were brought into ' his custody or possession ' without his knowledge and consent. Before concluding the Eespt. cannot help observing that some one circumstance or other must certainly have occurred to give rise to the present subject and from the information lodged with him he expected that the Defender would in his defences have at least mentioned some such circumstance, for however anxious he may have been not only not to offend himself, but to prevent others from so doing, and bringing to punishment such as may offend, yet the most cautious, and even he, may upon some occasion or other have been so far off his guard, as to contraveen the Act libelled on." The Sheriff then issued this interlocutor : — "Selkirk, 25th April 1812.— The Sheriff-Depute Allows the public procurator a proof of his libel and the Defender a counter probation as Accords. " (Signed) Walter Scott." APPENDIX 159 The procurator-fiscars proof was led on 8th July 1812. The note of evidence is in these terms : — " Compeared ^ James Frier, Mason in Selkirk, married, aged fifty and upwards, who being solemnly sworn and interrogated purged of partial counsel and malice Depones that in the month of November Eighteen hundred and ten, he in the way of his duty as Surveyor of the Highways in the County of Selkirk went to Tushielaw to meet with Mr. Anderson the Defender to accompany that gentleman from thence to some roads that were making up Rankleburn. The Party consisting of Mr. Anderson his servant, and the Deponent, left . Tushielaw and proceeded to Eankleburn when about two miles above Buccleuch, where the burn is very small, the Party were obliged to ride up the middle of the runner for a space as the Depont. describes it of about the breadth of Selkirk street. Mr. Anderson was first, the Deponent was next, and Mr. Anderson's servant came last. When in the Burn, a fish, either a large Trout or of some other species taking the alarm, and being disturbed by Mr. Anderson's horse made a sudden run, and actually forced itself out of the Burn on the dry rocks. Mr. Anderson past on, and the Deponent coming next with a stick in his hand bowed himself forward and with his stick killed the fish but did not then take it up having left it on the rock. The Party proceeded about two miles farther on, and then returned, after having seen the road. On their way back, when they came to the place where the fish was left, the Deponent came off his horse, took up the fish, which he suspended by the Gills not wishing to file his pocket with it, and in that state he carried it home to Tushielaw, and gave it to a boy at the stables, without giving him any particular directions relative to the disposal of it, but whether the boy was a hired servant of Mr. Anderson's or not, the Deponent does not know, but the Deponent has seen that boy about Mr. Anderson's stables both before that day and after it. Depones that he dined that day at Mr. Anderson's house at Tushielaw, and being specially interrogated if he saw any fish at Mr. Anderson's table, or in Mr. Anderson's house that day. Depones that he that day eat some salt sea-fish, but he does not recollect of seeing in Mr. Anderson's house, or that day eating there any ' Appeared. 160 APPENDIX fresh water fish. Being specially interrogated if he knows what became of the fish that he gave to the boy at Tushielaw stable, Depones that the Deponent being neither Steward nor Cook to Mr. Anderson gave himself no trouble about the fish, nor does he know what came of it after he gave it to the boy as before deponed to. Being specially interrogated, whether the Defender Mr. Anderson came riding to the stables alongst with him at the time he delivered the fish' to the boy and whether or not he heard Mr. Anderson give the boy any direction about the fish. Depones that on their way home from Eankleburn the Deponent had occasion to speak to one or two people on the road, and Mr. Anderson pro- ceeding onwards reached Tushielaw about fifteen minutes before the Deponent, and the Deponent did not hear him give any directions regarding the fish. Being interrogated whether or not upon the above occasion the Defender Mr. Anderson was actively employed to a degree less or more either by his horse's feet, a stick or a whip which he had in his hand in forcing the fish above deponed to from the water on to the rocks; Depones that Mr. Anderson was not active either with bis stick or whip in forcing the fish out of the water, but his horse's feet, alongst with the feet of his servant's horse and that of the Deponent were the cause of forcing the fish out of the water upon the rocks. Being specially interrogated, whether or not the Deponent, Mr. Anderson and the servant amused themselves a good deal in forcing the fish from the water with their horses' feet before it went upon the rocks, or whether or not the fish leapt instantaneously from the water to the rocks upon the approach of the horses' feet, and whether or not they did not conduct themselves so towards the fish upon ■ seeing it as to make a point of forcing it from the water or killing it therein with their horses' feet, Depones that the Deponent does not know whether or not Mr. Anderson or his servant partook of any amusement on this occasion but the Deponent had some amusement in seeing the fish make its various exertions. When Mr. Anderson's horse entered the stream, the fish run down past it, then past the Deponent's horse, but it appears that it did not run past the servant's horse, for it came up again, and when in the Act of repassing the Deponent's horse run itself out upon the stones and the Deponent killed it. Being interrogated, whether or not (when the fish was so employed in its different turnings APPENDIX IGl and windings) Mr. Anderson did not pursue it with his Horse's feet or whether or not Mr, Anderson allowed the fish gently to pass his horse's feet, without molesting it in the smallest degree or expressed himself well pleased at the entertainment the fish offered. Depones that so far as the Deponent observed, Mr. Anderson made no exertion with his Horse's feet or otherways in forcing the fish up or down the burn or upon the dry rock, but stopt his horse and looked back to see what the Deponent was doing. Being specially interrogated whether or not upon the above occasion, and before the fish was killed. . , . (This question not persisted in.) Being interrogated for the Defender, Depones that he does not recollect of any instructions whatever being given by Mr. Anderson as to carrying the fish home or leaving it on the rocks, nor does he recollect any thing particular of Mr. Anderson desiring him to be upon his guard, as he might incur a penalty by killing or carrying the fish home — causa seientice patet, all which is truth as he shall answer to God. "(Signed) James Frier. "Cha. Eeskine." " Compeared Nelly Scott, Servant to Mr. Anderson the Defender, unmarried, aged thirty and upwards, solemnly sworn, purged ut antea and interrogated. Depones that the Deponent has been Mr. Anderson's servant for seven years and was so in November Eighteen hundred and ten. That at that period Mr. Anderson had a boy in his service of the name of Adam Baird who is now at New Posso. That about that time she recollects of James Frier the preceding witness coming one morning to Tushielaw and of going away with Mr. Anderson to look at some roads or other operations up Eankleburn. That they returned in the course of the day, but whether before or after dinner she does not remember nor does she remember whether Mr. Frier dined at Tushielaw that day or not. That that day a fish was brought into the kitchen, but by whom she does not recollect, fourteen or fifteen inches in length as she thinks, being one of those trouts which come up the burns about the Martinmas time, and which fish she boiled, and she has no doubt but that it was made use of in Tushielaw house, -but whether on the day it was brought in or on a subsequent day she does not remember. That the servant who that day accompanied 11 162 APPENDIX Mr. Anderson is now in his service, and his name is Eobert Hope — causa scienticB patet, all which is truth as she shall answer to God. "(Signed) Nelly Scott, "Cha. Eeskine." It was not until March following that Sir Walter disposed of the case. This he did by the following interlocutor: — " Selkirk, 24m.,Febr. 5th, 1814. "Dear Sir, — After consulting with my friends I have resolved to comply with your demand, namely that on giving me a free discharge at present, I shall consider myself bound afterwards to make up to you the £21 compleat, over and above your share of the loss in sheep and this I bind myself to do, trust to your honour not to mention it publicly, nor harass me for the money until I can conveniently pay it. In the mean time be so kind as send orders to some one here to sign your acceptance of the terms, and security offered ; on which you will get a bill or line for the moiety — if you could do this without a day's delay it would particularly oblige. — Sir Your very Obedt. Servt. "(Signed) James Hogg." "Edinh., ikra2/24, 1817. "Dear Walter, — Knowing that you will need money just now I enclose you a note of £5. I meant to have sent double that sum but am sorry to find that it is at present out of my power. I will however 214 APPENDIX endeavour to pay you other £11 and then I will fight you fairly out before I give you any more. Be sure I will send you this as soon as I can. I am very vexed that James is going away ; he will not leave a finer fellow behind him. — I am, dear Sir, Yours Very Truly, "(Signed) James Hogg." "Elteievb Lake, Janr. 14