perhaps since the Common Carriers (by land) Act, and 'the Railway and Canal Act,' were founded on, the S.-S. may point out that the result to the pursuer would have been the same, even if they or either of them had been applicable to this case. The land Carriers Act expressly provides that there shall not be responsibility on the carrier for glass and other specified articles, when the value thereof shall exceed £10, unless at the time of delivery the value shall have been declared, and an increased rate of carriage paid and a receipt given. Here the value is admitted to have been about £14, and the pursuer, finding the objection which was in his way to success under this Act, as he did not declare the value, &c., attempted to get over this by reducing his originally restricted demand of £12 to £10, but that would not have made his case better, for the statute has express reference to the value of the goods, and the pursuer's invoice shows that that was above £10, or indeed about £14. A case illustrative generally of the Common Carriers Act is mentioned by Chitty on Carriers, page 49, decided in England, Owen v. Barnet, 2 Cr. and M. 353, thus :-'A looking-glass exceeding the value of £10 was packed up in a case and sent to a carrier's office, where a notice was fixed up pursuant to the second section of the Act. Upon the case were the words "plate-glass looking-glass-keep this edge upwards," but no declaration of the value and nature of the contents was made, and no increased rate of carriage paid. When the glass was unpacked at its destination, it was found to be broken, and in an action against the carrier for damage for the injury, it was held that he was not liable. And then the Railway and Canal Act, 17 & 18 Vict. c. 31, expressly sanctions special contracts on this subject, but with the provision that the conditions therein shall be adjudged by the court before which any question relating thereto shall be tried to be just and reasonable. The S.-S. has the opinion that it was just and reasonable to make the contract here entered into for the conveyance of these mirrors. Their fragility is undoubted, as is the difficulty of packing several in one box so as to make their carriage perfectly safe and beyond common hazard. It was held in England, in Peck v. North Stafford Railway, 10 H. L. C. 473, and 32 L. J. 2 B. 241, that a stipulation against liability for damage to fragile inaterials such as statuary or sculptured marbles was a reasonable contract, and in the same case it was said by Mr. Justice Blackburn that the condition was not unreasonable, if the company offer the consignor a bona fide practical choice either to have his goods carried in the usual way at a reasonable rate, or at his own risk at a lower rate, and he elects the latter. No doubt if it be proved that the damage was caused by the culpable negligence of the company's servants, or any gross negligence or wilful malfeasance on the part of the company itself, or any one for whom they are responsible, no such contract would protect them. (See Addison, p. 483, and Chitty, pp. 69 and 235.) But to make the company liable when there is a special contract these should be shewn, And if it be left in doubt what the cause of the injury was, or it may as well be attributable to the perils of the seas as to negligence, plaintiff would not be allowed to recover.' See further the Scotch cases of Rain v. Glasgow SouthWestern Ry. Company, 29th Jan. 1869, and Finlay v. N. B. Ry. Company, 8th July 1870. But it is only in the Railway and Canal Act that it is left for the Court to decide whether the special contract is just and reasonable (Addison, 469), and although there may be circumstances regarding contracts with other carriers such as Carron Company, where it would be the duty of the Court to interfere and protect the merchant, there is nothing in the present case which in the least seems to make it proper for this Court to do other than give effect to the special contract set up by the defrs. They will both be assoilzied and get their expenses. "After the foregoing Note was prepared and extended, the attention of the S.-S. was drawn to the report in the newspapers of a case decided this week in the Court of Session, where the owners of a steam vessel were found liable in damages for the loss of a passenger's luggage arising from the vessel being wrecked. But the foregoing note points out, as in anticipation, the difference in fact and consequently in result between this case and that. 1. Here there was a special contract signed by the parties sending off the goods, taking the risk of transit on themselves or on the owner, with a full knowledge of what they were signing; while in the other case, all that the proprietors of the vessel could found on was a printed unsigned note on the back of the passenger's ticket, and which his oath was he had neither read nor seen. 2. The articles here damaged were of a fragile nature, easily susceptible of injury from the perils of the sea or from accident, including accident in packing; while there the article lost was ordinary luggage, and in itself having no element of risk in its conveyance. 3. While there was, therefore, reason in the stipulation in the signed contract here for the risk being thrown upon and assumed by the sender or owner, there was no such reason there. And here there was the further element that by the senders agreeing to pay a higher, but not too high, rate of carriage an absolute insurance might have been effected. And 4. here no culpability whatever was shown to exist on the part of the defrs, or any one for whom they were responsible, while there the shipwreck and loss of the luggage was proved to have arisen from the fault of those in charge of the steam vessel. The S.-S. would finally add, that coinciding as he humbly does in the dicta of the judges, as reported in that other case, nothing they have said makes it necessary for him to alter any view expressed in the foregoing note. R. S." Agents-For Pursuer- Alex. Jenkins, writer, Stirling. For Defenders (Carron Company)-Russell & Aitken, Falkirk; (N.B. Railway) J. & J. Mathie & MacLuckie, Stirling. Notes of Cases in the Court of Session. OUTER HOUSE. Before Lord MURE. DOWNIE v. SCHOOL BOARD OF ANNAN-November 18, 1873. Education Act-First Election of School Board-Returning Officer--Agent and Clerk.—The L.-O. has issued the following interlocutor in the action by Alexander Downie, writer and town-clerk, Annan, against the School Board of that burgh :-" 18th November 1873.-The L.-O. having heard parties' procurators, and considered the closed record and productions, finds that the pursuer is entitled to payment from the defrs. of all expenses properly incurred by him in the discharge of his duty as returning officer for the election of the School Board for the burgh of Annan in February and March 1873, and incident to the said election, including a fair remuneration to himself for his trouble; and before further answer, remits the account sued for to the auditor to tax and report, reserving all questions of expenses." His Lordship appends a lengthened note to the interlocutor. He says "Although there is no express provision in the Education Act of 1872 to the effect that returning officers are to be paid out of any particular fund, or in any particular manner, the expenses incurred by them in conducting the election of school boards, as there is in the Act 35 and 36 Vict. cap. 33, relative to the expenses of returning officers under that Act, it cannot, in the opinion of the L.-O., admit of doubt, upon a fair reading of the Education Act, that all expenses properly incurred by returning officers under it were to form a charge on the school fund under the provisions of the 43d section as to expenses 'incident to the election of school boards.' This was not disputed by the defrs. as regards the outlay incurred relative to the election. But it was maintained in argument by them at the debate as a reason why professional men, acting as returning officers, should not be allowed professional charges, that the duties of such officers were in the ordinary case, and more particularly under the Parliamentary and Municipal Elections Acts, discharged gratuitously, and that it consequently never could have been_intended that professional men, acting as returning officers under the Education Act, should make professional charges, but that all that could in any case be demanded by them for personal trouble was a slump fee, fixed on the principle of quantum meruit. The L.-O., however, has not seen his way to adopting this view, and he does not think that it is borne out by the provisions either of the Parliamentary or of the Municipal Elections Acts, because under both these statutes the parties selected to do the duty of returning officer are permanent officials; they are therefore selected ex officio—viz., the Provost or chief magistrate in burghs, who are understood to do their official duties gratuitously, except in so far as an allowance may be made to them out of the burgh funds, and the sheriffs in counties, whose duties as returning officers are held to be covered by their fixed salaries. But even there, if the sheriff acts as presiding officer at any of the polls, he is understood to be entitled to the ordinary professional remuneration, 2d and 3d Will. IV. cap. 65, sec. 40. If, therefore, it had been the intention of the Legislature that returning officers under the Education Act were not to be entitled to charge for trouble, the course would, it is thought, have been adopted of declaring the Provost to be the returning officer at the first election ; but instead of this, the duty is devolved on the Town Council, by sub-division 4 of the 12th section of the Act, of appointing a 'fit and proper person to be returning officer at the election.' And if, in making this appointment, a professional man is selected, the L. O., as at present advised, sees no good reason why, if the duties which he is required to discharge under the Act and relative rules and directions framed by the Board of Education, in accordance with the provisions of the statute, are substantially of a description which are generally discharged by professional men, he should not be allowed to make his claim for remuneration in the shape of professional charges. As the precise nature, however, of these duties, and of the relative charges, will probably be more distinctly seen upon a taxation of the account with reference to the rules and regulations of the Education Board, the L. O. has remitted the account to the auditor for taxation before finally disposing of this question." His Lordship, after taxation of the account, sustained an objection to the auditor's allowance of a charge for drawing and extending "Minutes of Election," in respect that the return made to the Board of Education, and advertised in terms of the Board's regulations, had been made and charged for. The L.-O. decerned for the amount of the taxed account after deduction of this item. We understand that no reclaiming note has been lodged. Act.—Mr. J. H. A. Macdonald. Agents-T. & R. B. Ranken, W.S.Alt.-Guthrie. Agent-Wm. Steele, S.S.C. THE JOURNAL OF JURISPRUDENCE. JUDICIAL STATISTICS. IN our October number we dealt with the Statutory Report of Police, Criminal and Prison Statistics for the year 1872. We now proceed to review the tables applicable to civil suits, both in Supreme and Local (we abjure the name of Inferior) Courts. We, of course, give precedence to the Court of Session. The volume commences, as in the previous year, with a Retrospective Table of the business in the Outer House for the years 18711872 (p. 68). Were we censorious, we might here inquire how any statistics can be otherwise than "retrospective"? Prospective, or prophetic, we cannot as yet expect any series of tabulated facts to be. In the previous Report for 1871 we had the results of three years, from 1869 to 1871 inclusive. In the one now issued we generally have only the two years 1871 and 1872. But the results are again sadly marred by the expressive note-" No return for 1871 from the office with the mark R. R." In the immediately preceding report (1871) this office was marked as rebellious for the whole three years then retrospected. From the note now appended we are glad to understand that the recreant officer has at length become obedient, and has reported for the year 1872, but has not atoned for his dereliction of duty in the previous two years. This defalcation has now rendered a separate column necessary, and shows that the omission in the previous years very materially affects the whole series of results in this table, as well as in the three years given in the Report of 1871, during all which time this office was blank. In point of fact the results, as afterwards shown, are far from being made reliable, even with the aid of the auxiliary column. The first item of retrospect is the "number of causes initiated within the year in the Outer House." In order to give a fuller area for comparison, we shall draw on the previous report, and so give the results of the four years instead of the two reported for 1871 in the last volume (p. 68): 824 cases. 1869 The table states that there were, in the commencement of 1872, of causes in dependence 529, and there were left in the same state at the close of the same year 546, showing a remarkable coincidence in unfinished work. The table dealing with "Disposal of causes," within the two years 1871-72, but subject always to the disturbing element occasioned by the defaulting R. R., gives some important results (p. 68): Final judgments within the year Cases taken out of Court otherwise than by final judgment. It is so far satisfactory for the character of claimants to learn that the great preponderance of final decisions in the Outer House are in favour of pursuers, thus The preference given to decisions from the bench over those of the jury-box is strongly attested by the fact that 1871. 1872. But pursuers appear not so successful with juries as with judges, for verdicts were given 1871. 1872. We now enter the inner shrines of Themis. Whilst the Outer House is inter-retrospected for only two years, 1871-2, the higher tribunal is subjected to a triennial scrutiny. As the previous report included 1869, it would have been a mere reprint to have given that year in addition. There are some very remarkable coincidences in the figures, all proclaiming most unmistakeably the uniform working of the Court and its meritorious despatch of business. Thus the number of causes in dependence at the commencement of each year are next to uniform (p. 69), namely― |