Scottish Court of Session Decisions

William Strang Steel, East India merchant, residing at Braco Castle, Perthshire, raised an action, on 17th March 1888, against his wife Mrs Rosetta Edith Barber or Steel, for divorce on the ground of desertion.

The pursuer and defender were married in London on 25th October 1881, and continued to reside together in London and elsewhere until 21st February 1884, when Mrs Steel left her husband's home in Brighton, and did not thereafter reside with him.

Mrs Steel lodged defences, in which she averred that her husband was a domiciled Englishman, and pleaded “no jurisdiction.”

The pursuer in answer averred that he was born in Scotland, and had retained his Scottish domicile.

Evidence was led in regard to the question of jurisdiction.

Mrs Steel (33) deponed—“I am the defender in this action. I was born in Demerara in the West Indies. My father and mother were Irish.… I was married to Mr Steel on 26th October 1881. I had made his acquaintance only a few months before. I first met him at the house of a friend in London. He had taken a lease of a house at 88 Lancaster Gate, and previous to that he had been living at 65 Lancaster Gate. He was very reserved indeed as to what he had been doing in life, and I knew very little of his early history. I understood he was a merchant, that he had his business in London, and that London was his home.… During my married life all Mr Steel's relations, so far as I was brought into contact with them, were living in London and the neighbourhood of London. He had no near relations that he told me about in Scotland at all. His mother was living, and still lives with her son James in Cleveland Square, London. On one occasion Mr Steel and I went to Scotland for a few weeks to pay visits. (Q) Were they relations that you went to, or only friends?—(A) Only friends. During the time we were in Scotland he never said anything to me about considering himself a Scotchman, or that he was going to live in Scotland. (Q) Mr Steel says in the present case that it has always been his desire and intention to return to his native country, and to settle there permanently, and for a number of years he has been on the outlook for a suitable estate there, intending to purchase it and to make it his permanent abode.’ Is that the first you ever heard of that?—(A) Yes, I never heard that that was his intention, because he had always been talking about England. I certainly do not believe that during our married life he had the slightest intention of going to Scotland to establish himself permanently there. He never spoke or behaved in any way as if he considered himself a native of Scotland at that time … Cross.—I did not know my husband was a Scotchman. I knew he was born in Scotland. I was not sure until lately that he had been educated in Scotland. I never gave that matter consideration. I understood he had been brought up to business in London and abroad. I understood he had been with a Mr Martin in Batavia. I did not know he had been in an office in Glasgow in early life. I thought he had gone direct from London to Batavia. I concluded his father and mother were Scotch. I knew he had Scotch friends. He did not tell me during our engagement that he was of Scotch family, and had been brought up in Scotland.”

Mr Steel deponed as follows—“I was born in Glasgow in 1832. My father was John Steel, manufacturer in Glasgow, a Scotchman by birth, and his father was also a manufacturer in Glasgow. My father resided in Glasgow all his life. He died very suddenly in 1872 when at Chislehurst on a week's visit to my brother there. My mother was Grace Niven Strang, daughter of Mr Strang of Westhouse, Crosshill, East Kilbride. Her family had owned that estate for generations. I was educated at various schools in Glasgow, and latterly at the High School. In December 1845 I entered the office of Martin, Turner, & Company, merchants in Glasgow, where I remained till 1851. In September 1851 they transferred me to their house of Martin, Dyce, & Company in Batavia. I remained in the service of Martin, Dyce, & Company for about five years, and then I returned to Glasgow, where I set up business for myself. I continued in business in Glasgow for about a year. At that time Mr Muir, of James Finlay &

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Company, proposed that I should go out to Burmah to manage the business there of Gladstone, Wyllie, & Company, who were the correspondents of James Finlay & Company of Glasgow. All the partners were Scotch, and a very large part of their business came from Glasgow. I went out to Burmah in 1857. In 1859 I became a partner of Gladstone, Wyllie, & Company. I remained at Rangoon till 1864. I then returned to Scotland, and remained in Glasgow for the greater part of a year, living with my brother Mr James Alison Steel. I went out to Rangoon again in 1865, returned to Glasgow in 1868, and remained till 1869, residing during that time in my father's house in Glasgow, but of course travelling about a good deal. Towards the end of 1869 I went out again to Rangoon. At 31st October 1870 I retired from Gladstone, Wyllie, & Company, and established my own firm of William Strang Steel & Company. James Finlay & Company were at the beginning, and for some years, the only representatives we had in this country, and it was in conjunction with them that our business in Rangoon was opened. That arrangement continued till the middle of 1873, when I found it necessary to make an alteration upon it. Our rice business had largely developed, and we had erected large rice mills; and while James Finlay & Company were excellent people for the soft goods department of our business, we required to have an establishment in London to get orders for rice, charter ships, and do matters which James Finlay & Company could not do so well as I could do myself. London is the centre of the rice market. I established a branch of my business in London. My brother James Alison Steel then became a partner. The London firm is Steel Brothers & Company. That firm and the corresponding firm of William Strang Steel & Company of Burmah still exist. I still have a house in Rangoon, but it is not now furnished. I remained in Burmah from the date of the establishment of my firm there until June 1871, when I returned to Scotland. I made my father's house in Glasgow, as formerly, my headquarters. I also paid a visit to my brother, who by that time had returned from the Cape and was living at Chislehurst. I returned to Rangoon early in 1872. I came back to Europe in the end of that year. By that time my father had died, and my mother was then living with my brother in London. She still had her old house in Glasgow, but she was on a visit to my brother at 65 Lancaster Gate, where he rented a furnished house on a yearly tenancy. I lived with him, but moving about the country, until the end of 1873 or beginning of 1874, when I went out again to Burmah. I returned to England late in 1874, and on my return I again made my headquarters at my brother's house at Lancaster Gate. I continued to reside with him off and on till Christmas 1880—he still living in that furnished house. About Christmas 1880 I took a house of my own. The furniture in No. 65 Lancaster Gate was very shabby, and the landlord would do nothing for the house. I had been prosperous, and thought I might have a better house. I accordingly took a lease of a house, No. 88 Lancaster Gate, and furnished it. My mother and brother just came over and lived with me. I was living there when I was married to defender on 25th October 1881. I had not been engaged to her when I took the house at 88 Lancaster Gate. She was a Miss Barber, and lived with her aunt.… (Q) Did you tell her you were a Scotchman and had been brought up in Scotland?—(A) Of course.… My wife left me while we were at Brighton. After a month or two, when I saw that she was not going to come back, I returned to Lancaster Gate. If she had come back to me I would have remained in Brighton. I re-opened my house at Lancaster Gate, and continued to reside there till Whitsunday 1887, when I removed to Braco Castle in Perthshire. I had arranged a lease of Braco Castle in February, and I moved my establishment there partly in May and partly in July. My whole establishment was removed by July. There was a break in my lease of the house at Lancaster Gate at Christmas 1887, of which I took advantage. Since then I have resided at Braco Castle. Apart from my house at Rangoon I have no other residence. I have Braco Castle upon a five years' lease, with a break in the tenant's favour on three months' notice at the end of each year. I am still in business, and my connection with my business involves occasional visits to London. The business does not now require the same personal attention from me which it did at one time..… I have at present no intention of leaving Braco. I am settled in Scotland with the firm intention of never leaving it. I think I am not at all likely to leave Braco except for a place of my own in Scotland. I am still looking after an estate to purchase. I have no thought or intention whatever of returning to live in London. There is nothing in connection with my family or business arrangements which renders that necessary so far as I know. The acquisition of an estate in Scotland has been for a very long time the object of my desire, and both before and after my marriage I had considered the particulars of various estates in Scotland which were brought under my notice. As far back as 1864 I had endeavoured to re-purchase my mother's family estate, and more than once since then I have renewed the attempt, but the present proprietor will not part with it.” In regard to the estate of Findynate, which was brought under the pursuer's notice with a view to purchase, Mr Steel deponed—“I pointed out where the place was, and showed her (Mrs Steel) the stations we would be near. I asked her for an opinion, and she said she would give no opinion; she took no interest in me or my estates, or anything else belonging to me. The matter then dropped. I never considered that I had ceased to be a Scotchman. I was rather proud of being a Scotchman. Nearly all the visitors to my house were Scotch. Scotchmen were continually in and about my house, and Scotland was continually being talked of. I had no intention of settling permanently in England—not longer than my business required me to reside there. I had all along the prospect of getting my business into such a position that I would not require to supervise it. I had always the intention of ultimately settling in Scotland as soon as business arrangements permitted. That was my intention both before and after my marriage. Naturally it would only be to my very intimate friends that I would mention that, but

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it was spoken of in the family circle and amongst my intimate friends. After my wife left me the matter of settlement in Scotland came up more prominently. I made up my mind to move to Scotland as soon as a suitable place offered. …. I have now no residence in London or in England. My only connection with England is that I am a partner in the London house, which is in connection with my Rangoon house.” In regard to the present action Mr Steel deponed—“I had always intended to come and reside in Scotland, and the prospect of these proceedings may have accelerated the carrying out of that intention.”

Mr James Alison Steel, a brother of the pursuer, gave corroborative evidence as follows:—

”(Q) Did your brother while he lived in London often talk to you about his reasons for living there?—(A) Well, he lived there because his business was there. Apart from his business he never indicated any preference for London or any desire to settle there; I should say he would not have preferred London except for business reasons. (Q) Did he always talk of himself as a Scotsman?—(A) There was no necessity for him to talk of himself as a Scotsman to me. He never did anything to indicate that he had severed his connection with Scotland or taken up his permanent residence in England. We have had conversations in regard to what our future movements might be when the calls of business became less exacting. I think these conversations were all through our lives—both before and after his marriage. His views as expressed to me were similar to what I expressed to him—that we should both desire to retire from business; to retire to Scotland. I should think that is a thing which has been in our minds all the time we have been in England.”

Mr John Muir of Deanston deponed—“I do not regard Mr Steel as anything but a Scotchman. He was proud of being a Scotchman, and talked in that strain. … As a young man, of course, he had comparatively small means, but I knew from our conversations that ultimately he hoped to buy a property in Scotland. He continued to express that intention both before and after his marriage. He asked me to keep a lookout for properties which I thought might suit him.”

Mr James M'Gregor, shipowner in London and Glasgow, also deponed—“I always understood that when he (Mr Steel) retired partially from business he would reside in Scotland. He frequently spoke of buying an estate in Scotland.”

“On 26th June 1888 the Lord Ordinary ( Fraser) found that the domicile of the pursuer was in Scotland, repelled the first plea-in-law for the defender, and sustained the jurisdiction of the Court; and on the merits allowed the parties a proof of their averments.

Opinion.—I do not think it necessary in this case to call for a reply from the counsel for the pursuer, as I am satisfied upon the proof which has been led that the domicile of the pursuer is in Scotland, and was so at the time he raised this action. We start with the fact that the domicile of origin was in Scotland. The bearing of this fact on the question now to be answered is very important. Lord Chancellor Cottenham, in the case of Munro v. Munro, August 10, 1840, 1 Rob. App. 606, expressed his opinion as follows—‘Questions of domicile are frequently attended with great difficulty, and as the circumstances which give rise to such questions are necessarily very various, it is of the utmost importance not to depart from any principles which have been established relative to such questions, particularly if such principles be adopted not only by the laws of England, but generally by the laws of other countries. It is, I conceive, one of those principles, that the domicile of origin must prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicile and acquiring another as his sole domicile. Such, after the fullest consideration of the authorities, was the principle laid down by Lord Alvanley in Sommerville v. Sommerville, 5 Ves. 787, and from which I see no reason for dissenting. So firmly, indeed, did the civil law consider the domicile of origin to adhere, that it holds that if it be actually abandoned, and a new domicile acquired, but that again abandoned, and no new one acquired in its place, the domicile of origin revives. To effect this abandonment of the domicile of origin and substitute another in its place, it required “le concours de la volonte et du fait,”— animo et facto—that is, by actual residence in the place, with the intention that the place then chosen should be the principal and permanent residence, larum rerumque ac for-tunarum suarum. There must be residence and intention; residence alone has no effect per se, although it may be most important as a ground from which to infer intention. Mr Burge in his excellent work (1 Burge, For. and Col. Law, 54) cites many authorities from the civilians to establish this proposition. “It is not,” he says, by purchasing and occupying a house, or furnishing it, or investing a part of his capital there, nor by residence alone, but it must be residence with the intention that it should be permanent.”’

“In like manner Lord Cairns thus expressed himself on the point—‘The onus lies upon those who desire to show that there was a change in this domicile, by which I mean the personal stdtus indicated by that word—the onus, I say, lies upon those who assert that the personal status thus acquired, and continued from the time of his birth, was changed, to prove that that change took place. The law is beyond all doubt clear, with regard to the domicile of birth, that the personal status indicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicile is acquired’— Bell v. Kennedy, L.R., 1 Sc. App. 310, 6 Macph. (H. of L.) 69. The onus therefore is upon the defender in this action to show that the domicile of origin was changed, and in regard to change of domicile it must be kept in mind, as the authorities I have quoted show, that it is not effected by the mere fact of residence, however long continued, without the animus or purpose of permanent domiciliation and adoption of the laws of the new domicile. Much more where the question is, whether a man has changed his domicile, abandoning that which he held from his birth, must there be proof not only of the fact of residence elsewhere for a time, but of an

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intention to constitute a new domicile in exclusion of the old.

Now, I can find no proof that the pursuer of this action, while he was attempting to establish a business in Rangoon, had any intention whatever of becoming a domiciled Burmese. He travelled during the years before his marriage between Rangoon and London and Scotland, all in the way of business. His whole plan of life as regards his domicile was unsettled, and until the marriage in 1881 I am of opinion that there is no ground for saying that he had changed his domicile of origin.

“Did he then do it in 1881? He lived with his wife most unhappily—according to the account of both parties—from 1881 to 1884 in London and at Brighton. His business was in London and at Rangoon. He required to attend to his business at London, but this was not enough to effect a change of domicile according to Lord Cottenham, and I refrain from expressing any opinion as to whether or not a domicile different from that of origin was adopted when the pursuer and his wife took up house at Lancaster Gate, London, in 1881. I will assume, for the purpose of this case, that such a domicile was acquired; and then comes the question, whether the domicile of origin was revived by what took place at Whitsunday 1887. Upon this point I have no doubt whatever. It is clearly proved by the evidence of the pursuer's friends—acquainted with him from childhood—that he had always looked forward to settling in his own country of Scotland when he had made a fortune. It was the theme of constant talk among them, and it is proved beyond all controversy that he had been, long before the unhappy separation between him and his wife, looking out for an estate in Scotland. He was unable to get himself suited in regard to the purchase of such an estate, but at Whitsunday 1887 he obtained a lease for a term of years of Braco Castle in Perthshire, to which he transferred the whole of his household, and such of his furniture as he did not give to his brother James. He depones that he did this with the view of permanently settling in Scotland and making it his home, and I entirely believe this statement, and this is quite sufficient to constitute him a domiciled Scotsman. In regard to the revival of the domicile of origin, the case of Udny v. Udny, June 3, 1869, 7 Macph. (H. of L.) 89, shows that this takes place upon the mere abandonment of a domicile of choice, without the acquisition of another domicile of choice. And Lord Stowell says, in regard to this matter, that ‘it is always to be remembered that the native character easily reverts, and that it requires fewer circumstances to constitute domicile in the case of a native subject than to impress the national character on one who is originally of another country.’—‘ The Harmony,’ 2 Rob. Ad. 322.

“But there has been mixed up with this question as to domicile another question with which it has no connection. It is said, in the first place, that the pursuer in coming to Scotland did so with the purpose of acquiring a domicile in order to give the Scottish Courts jurisdiction in an action of divorce by him against his wife. Secondly, it is said that his object in coming to Scotland was to obtain the advantage or benefit of the Scotch law, which enables a deserted spouse to obtain divorce after four years, which four years' desertion, it is said, must take place in Scotland, and not in a foreign country. These two points were settled—so far as they can be in an undefended action—in the case of Carswell v. Carswell, July 6, 1881, 8 R. 901. But as it is stated by the defender that she means to contest the soundness of that judgment, I may here explain in a few words the grounds on which I entirely concur in it.

I have often had occasion to consider these two questions. First, the motive of the pursuer in coming to Scotland is in my opinion totally irrelevant. The husband is the master of the situation. He can determine the domicile of the spouses, and according to that domicile the rights of the spouses must be settled. He can, for example, change the domicile from Scotland to England, and, if he does so, the wife is without jus relictæ at his death. He is entitled in like manner to change the domicile to a country whose laws give him privileges and advantages that he does not enjoy under the law of the country where the spouses may be at the time resident. He exercises only a legal right when he comes to Scotland and there appeals to the law of that country for redress against a conjugal wrong. When he comes to Scotland he is subjected to all the restraints imposed by the laws of this country upon individuals, and in liko manner he is entitled to all its privileges, among which one of these is the right of divorce against a deserting wife.

Then, on the other hand, the plea that the desertion must have taken place in Scotland has always appeared to me to be one of the most untenable that could be stated against the operation of a most beneficial law. The conjugal wrong which the Statute of 1573 was intended to repress was not a wrong committed merely in Scotland but anywhere. It is the law of all countries, and it is the obligation undertaken by the matrimonial vow at marriage that the wife shall adhere to the husband, and whether the non-adherence be committed in America, or Africa, or elsewhere out of Scotland, yet if it is committed, a Scotsman domiciled in Scotland is entitled to found upon this violation of the matrimonial vows as a ground for divorce in like manner as he would be entitled to found upon an adultery committed at the Cape of Good Hope or Rangoon by the wife.

The defender may put an end to this action at any time she pleases. She has only to do what she promised at her marriage and what the law requires of her. The pursuer stated when examined as a witness that he is willing to receive her, and that he is anxious that she should return to cohabitation. Apparently she is still under the same malign influence that caused the estrangement originally, and will not fulfil the duty which the law declares to .be incumbent upon her of adhering to her husband. The husband cannot obtain from any court of law in Scotland an order directing her to resume cohabitation to be followed up by arrest as was formerly the custom in England if the order was disobeyed. The obligation of adherence is punished not by enforcing it but by dissolving it. There are, however, certain inconveniences which the defender ought to contemplate before continuing to persist in her present resolution.

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A wife who deserts her husband is in general not entitled to the custody of the children of the marriage, and she has the custody of one of them at present; and she can claim no separate maintenance from her husband, and the legal rights in the husband's property which the law confers upon a widow will be denied her; and although she is defender in an action of divorce, yet looking to the peculiar character of this action, and the offer made by the husband to receive her back to his society, the right which the wife has of conducting her defence at the husband's expense may not be held here to exist. All these matters should be kept in mind by this defender.”

The defender reclaimed, and at the discussion in the Inner House the following pleas were added for her—“(3) In the circumstances condescended on the pursuer lost his domicile of origin, and the said domicile has never revived. (4) Even assuming the pursuer's domicile to be now in Scotland, it has not, at least in the circumstances of this case, the effect of giving jurisdiction for divorce on grounds not admitted by English law. (5) The alleged desertion not having continued for four years after such revival, the same is not sufficient to warrant decree under the statute.”

Argued for the defender—The pursuer when he left Scotland in 1857 for Burmah lost his Scottish domicile and acquired (1) an Anglo-Indian domicile and (2) thereafter, on his return to London in 1874, an English domicile, at and after which date, both for business and domestic purposes, London became his home. When a person leaves his own country, and establishes himself in business in another country, he acquires a domicile there, even though his intention may be at some future time, if he prospers in business, to return to the country of his birth. That was the case of the pursuer here. His domicile till 1887 was English, when he took Braco Castle, and again began to acquire a Scottish domicile. [ Lord Pesident—Acquiring a domicile must be animo et facto, but retention is animo, especially if the domicile be that of origin.]—Westlake's Private International Law, p. 277, and cases there cited; Aikman v. Aikman, March 17, 1859, 21 D. 757, aff. 3 Macq. 854, and dictum of L. Chanc. Campbell, p. 858. On the question of intention to be gathered from actions cf. Doucet v. Geoghegan, 1877, L.R., 9 Ch. Div. 441; Bruce v. Bruce, 3 Paton's App. 163, Lord Thurlow's opinion. In point of fact, after 1873 the pursuer had no connection with Scotland except the connection of birth. His father died in England (on a visit) in 1872; his mother went to reside there to live with her sons; his business was in Rangoon and London; he had no partners except in London; and his Scotch business was handed over to Finlay & Company. His marriage was in England; his only residence was in Lancaster Gate. His marriage settlement was English in form, and was not, as was commonly done, executed according to both English and Scottish law. There was nothing to suggest to the defender that her husband was not a domiciled Englishman— Harvey v. Farnie, 1882, L.R., 8 App. Cas. 43. Further, the pursuer made his child a ward in Chancery, and so did his best to prevent it being connected with Scotland. As to the pursuer's actings with reference to taking Braco, the question was whether his coming back to Scotland was in bona fide? He alleged that it was in furtherance of a long expressed intention, and upon that matter he could not be contradicted. It was not suggested that there was anything here of the nature of collusion, but his lease of Braco really came to nothing, as it might be terminated any year, when the pursuer's English domicile would revive. Supposing the pursuer only began to re-acquire a Scottish domicile in 1887, did that subject the defender to the jurisdiction of the Scottish Courts, i.e., could the husband by changing his domicile alter the rights of his wife?— Pitt v. Pitt, December 5, 1862, 1 Macph. 106, and 4 Macq. 627. The defender submitted that it required four years' desertion by one spouse domiciled in Scotland from the other spouse also domiciled in Scotland— Shields v. Shields, December , 1852, 15 D. 142; Jack v. Jack, February 7, 1862, 24 D. 467; Carswell v. Carswell, July 6, 1881, 8 R. 901. The wife was not always bound to appear before the forum of her husband's domicile— Lovey v. Lindsay, 1 Dow, pp. 137, 138, and 140. The pursuer had changed his domicile without any warning, and a month after coming to Scotland had brought the present action against his wife. Thus the defender had only one month and not four years to reflect and make up her mind. As there was no penalty for non-adherence in England, the present action was irrelevant, and proof should not have been allowed— Stavert v. Stavert, February 3, 1882, 9 R. 519, Lord President, p. 527; Niboyet v. Niboyet, November 1878, L.R., 4 Prob. & Div. 1; Goodman v. London and North-Western Railway Company, March 6, 1877, 14 S. L.R. 449; Fraser on Husband and Wife, ii. pp. 1560 and 1573.

Argued for the respondent—The circumstances of the case when taken as a whole showed that the pursuer was, and all along continued, a domiciled Scotsman. The two dates of importance in the case were 1857 and 1873. As regarded 1857, when the pursuer went to Burmah, it was important to recollect that he was a domiciled Scotsman, and it was on the defender to prove that this domicile was changed animo et facto. The mere fact of change of residence was not sufficient, there must be clear proof of an abandonment of the original domicile— Capdevielle, 1864, 2 Hurl. & Colt. 985, and 1010; Moorhouse v. Lord, 1863, 32 L.J., Ch. 295; Udny v. Udny, December 14, 1866, 5 Macph. 164, and 7 Macph. (H. of L.) 89, Lord Westbury's opinion. There must be not merely abandonment of the old domicile, but an intention to remain in the new domicile— Donaldson v. Maclure, December 18, 1857, 20 D. 321. In Jopp v. Wood, 1865, 34 L. J., Ch. 212, the person was absent twenty-five years with only one break, while here the pursuer was three times home in fifteen years, and was inquiring about the purchase of a permanent home in Scotland. From 1873 to 1880 the pursuer's life was unsettled; his time was spent partly in Burmah and partly in London. During this time he continued his inquiries about a Scottish estate. But if the pursuer had at any time between 1857 and 1887 lost his Scottish domicile, it revived in 1887, when he took a lease of Braco with the intention of finally residing in Scotland. As to the effect of the pursuer's coming to Scotland,

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in a question of jurisdiction it had been held that the motive for changing the domicile could not be looked at in judging of its effect— Stavert v. Stavert, February 3, 1882, 9 R. 519—but in the present case the evidence showed that the change had not been made for the purposes of the present action; even if it had, however, the pursuer was a domiciled Scotsman, and was entitled to bring this action. The general rule should prevail, that for all questions of jurisdiction the domicile of the husband is the domicile of the wife. The circumstances in the case of Pitt, relied on by the other side, were so different as to render it of no value in the present case. It had been urged that the marriage-contract of the spouses was entirely an English deed, but three of the trustees were well-known Scotsmen. The object of the pursuer in making his child a ward of Chancery was solely to prevent his wife taking this step, and in order to retain the custody of the child—“ The Halley,” 2 Privy Council App. 193; Phillips v. Eyre, L.R., 4 Q.B. 225; Smith's Leading Cases, i. 667; Bishop on Marriage and Divorce, ii. 142 and 172; Horn v. North British Railway Company, July 13, 1878, 5 R. 1055; M'Larty v. Steel, January 22, 1881, 8 R. 435.

At advising—