Agent and Principal-Agent's Responsibili ties to Principal - Misrepresentation by Agent to Principal that Contract Concluded-Warranty-Damages -- Measure of Damages. Where an agent represents to the principal for whom he acts that he has authority from the other principal -whether he also acts for such other principal or not—and such representation is to the agent's knowledge erroneous, then the agent is liable to the principal to whom the representation was made for the loss resulting from the contract not being enforceable, and the measure of damages is the difference between the profit which would have been made from the abortive contract and the best terms which could be obtained in the market when the misrepresentation was discovered. Held also upon the preliminary correspondence passing between the parties that the agents were liable for the expenses incurred by the principals to whom the representation was made in raising an action against the other principals for breach of contract and prosecuting it up to the closing of the record. Held further, that although the principal, who had refused to go on with the contract, had done so, not on account of the misrepresentation made by the agents, but for other reasons altogether, the agents were not entitled to take any benefit from this fact, because in any view they had by their misrepresentation furnished a good defence against any action to enforce the contract. Rederi Aktiebolaget Nordstjernan v. Chr. Salvesen & Company, p. 305. See Shipping Law. Agreement. See Master and Servant. Agreement to Insure. See Contract. Allocation of Sittings. See Church. Alteration of Line of Footpath. See Burgh. Alteration of Memorandum of Association. See Company. Amendment. See Justiciary Cases. Amendment of Record. See Process. Annuity to Widow. See Succession. Antenuptial Trust-Deed by Wife. See Husband and Wife. Appeal. See Bankruptcy-Process-Master and Servant. Appeal for Jury Trial. See Expenses— Process. Appeal from Sheriff Court. See Process. Appeal to House of Lords-Competency— Appeal on Question of Expenses only. An appeal to the House of Lords on the question of expenses only is not competent. Barrie v. Caledonian Railway Company, p. 600. See Process. Appeal to Quarter Sessions. See PublicĤouse. Appeal under Summary Jurisdiction Acts. See Process. Application by Procurator-Fiscal for Stated Case. See Justiciary Cases. Application for Rectification of Register. See Process. Application for Review. See Master and Servant. Apportionment of Damages by Jury. See Process. Appropriation of Funds of Incorporation by Surviving Member. See Burgh. Arbiter. See Arbitration. Arbitration-Reference "to Arbitration Application to Court to Name ArbiterNumber of Arbiters not Specified-Arbitration (Scotland) Act 1894 (57 and 58 Vict. c. 13), secs. 2 and 3. Where the parties to a contract agreed to refer disputes "to arbitration," but there was no provision as to the way in which the arbitration was to be carried out, and one of the parties refused to proceed to arbitration, held (aff. Lord Stormonth Darling, Ordinary), in a petition under the Arbitration (Scotland) Act 1894 for the appointment of an arbiter by the Court, that the Court had no jurisdiction under that Act to name an arbiter or arbiters where the contract provides simply for reference "to arbitration,' and not for reference either to a single arbiter or to two arbiters. M'Millan & Son, Limited v. Rowan & Company, p. 265. 66 Claim Partly Relating to Matters Outside Reference-Reference Clause in Partnership Contract-Interdict of Arbiter before Decision. By a clause in a contract of copartnery it was provided that should any difference arise between the partners as to the meaning or the implement of these presents, or in the prosecution of the business of the firm or in the winding-up of said business, or in any way touching the premises," the same should be referred to arbitration, and that parties should be "debarred from resorting to any court of law on any pretext whatever." Disputes having arisen between the partners, one of them called for the intervention of the arbiter, and submitted a claim by which, inter alia, he asked the arbiter to declare that it was necessary that the business should be wound up. Answers were lodged to this claim by the other partners, in which they maintained, inter alia, that some of the questions raised were not covered by the arbitration clause. The arbiter repelled certain of these pleas so far as preliminary, and allowed a proof. The respondent partners then brought a note of suspension and interdict to restrain the arbiter from.dealing with the items of the claim to which they objected. They did not aver that the arbiter had not jurisdiction to deal with some of the questions submitted to him. Held that even on the assumption that some of the items of the claim related to matters which fell outside the arbitration clause, no grounds had been shown for the interference of the Court before the arbiter had pronounced any final decision on the matter. Bennet v. Bennet, p. 341. Arbiter-Disqualification - Arbiter becoming Member of Corporation which was one of the Parties--Effect of Resignation of Office. By a reference clause in a contract between a town council and a builder, all disputes arising under the contract were to be referred to A as arbiter. In May 1898 the arbiter was called upon to act, and settled the question which had then arisen. In November 1898 A became Dean of Guild, and as such ex-officio a member of the town council. He continued to hold that office until November 1902, when he resigned, and thereby ceased to be a member of the town council. Another dispute having arisen under the contract, the builder, in July 1902, called upon A to act as arbiter. In a note of suspension and interdict at the instance of the town council, held that A became disqualified to act as arbiter by accepting the office of Dean of Guild, and that his disqualification was not removed by his resignation of that office. Held also (per Lord Low, Ordinary) that A was disqualified to act as arbiter notwithstanding his resignation of the office of Dean of Guild, upon the ground that while he was Dean of Guild he was consulted by and advised and reported to the town council with regard to the execution of the contract. Magistrates of Edinburgh v. Lownie, p. 471. Arbitration - Arbiter - Disqualification con Arbiter Engineer to One of the PartiesOpinion Expressed by Arbiter as Engineer in Reply to his Employers. A contract for the erection of a pier contained an arbitration clause whereby the tractor and his employers agreed to refer any question arising out of the contract to the employers' engineer as arbiter. A question arose under the contract, with regard to which the employers' engineer expressed a definite opinion in reply to his employers, who had consulted him in the course of negotiations with the contractor for the settlement of his claim. Thereafter the contractor raised an action against his employers for the determination of the question at issue. The defenders pleaded that the question fell to be determined by the arbiter appointed under the contract. The pursuer maintained that the arbiter appointed under the contract had acted and expressed himself with regard to the question that he was disqualified from acting in the capacity of arbiter. Held (aff. judgment of Lord Pearson) that the arbiter was not disqualified. Halliday . Duke of Hamilton's Trustees, p. 628. SO Interdict of Arbiter before Decision -Order Claimed ultra vires of ArbiterObjection to Form of Claim -Claim for Damages. A claim having been lodged in an arbitration, the respondent, before the arbiter had considered the claim or pronounced any decision thereon, presented a note for interdict against the arbiter proceeding with the reference, on the ground that the form of the claim was such that the arbiter was asked to pronounce an order which would be ultra vires. Held (reversing judgment of Lord Pearson) that although it might be the claim as stated could not be competently sustained, yet, as the matters in question fell prima facie under the clause of reference, and the claim might be amended so as to be competent, the objections raised resolved into a question of pleading, which fell primarily to be dealt with by the arbiter; that it could not be assumed that the arbiter would pronounce incompetent orders; and that in these circumstances the complainer was not entitled to have the arbitration interdicted ab ante. Moore v. M'Cosh, p. 691. Arbitration. See Compulsory Powers. Assignation. See Superior and Vassal. Auditor. See Burgh. Authority to Elect between Testamentary Provision and Legal Rights. See Judi cial Factor. Average Weekly Earnings." See Master and Servant. Averment of Custom to Extend Time Limit. See Proof. Averments of Defective Apparatus and Failure to Provide Skilled Management. See Reparation. Averments of Malice. See Reparation. Award of Sequestration of Estate of Deceased Debtor. See Bankruptcy. Bank. See Fraud. Bankruptcy-Sequestration AwardingDeath of Debtor after Petition for Sequestration Presented-Award of Sequestration of Estate of Deceased Debtor-Process. The Bankruptcy Act 1856 (19 and 20 Vict. c. 79), sec. 34, enacts-"If the debtor shall die after the petition for sequestration has been presented, the proceedings shall notwithstanding be followed out in terms of this Act so far as circumstances will permit.' A creditor presented a petition in the Bill Chamber for the sequestration of a debtor's estate. On September 30th an order for service was pronounced and commission granted to recover evidence of the debtor's notour bankruptcy, October 1st the debtor was duly cited to appear and show cause why sequestration of his estates should not be awarded. On October 4th the debtor died. Lord Ordinary on the Bills (Trayner) on October 14th, without ordering citation of the representatives of the deceased debtor, found that the debtor was notour bankrupt at the date of his death, and awarded sequestration of his estates de plano. Younger & Son, Limited, Petitioners, p. 102. On The Sequestration Summary Decree Ordaining Bankrupt to Hand over Sums of Money - Competency - Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. c. 79), sec. 81-Debtors (Scotland) Act 1880 (43 and 44 Vict. c. 34), sec. 12. A trustee on a sequestrated estate presented a petition craving that the bankruptshould be ordained, under penalty of imprisonment, to hand over to him certain sums of money which he alleged that the bankrupt had in his possession in loose cash. Held that the petition, being for a summary decree ordaining the payment of money, was not authorised by section 81 of the Bankruptcy Act 1856, or section 12 of the Debtors Act 1880, or otherwise, that an interlocutor pronounced thereon, ordain ing the bankrupt within forty-eight hours to hand over the sums of money referred to was incompetent. Bannatyne v. Thomson (Bannatyne Trustee), p. 184. Bankruptcy Sequestration Appeal Review of Prior Interlocutors Declared Final by Statute-Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. c. 79), sec. 71. In the Sheriff Court the Sheriff-Substitute by interlocutor confirmed the appointment of a trustee on a sequestrated estate. Thereafter on a petition presented by the trustee the Sheriff pronounced an interlocutor against which the bankrupt appealed. Held that while the appeal was competent as an appeal against the lastmentioned interlocutor, it did not competently also submit to review the interlocutor confirming the appointment of the trustee, which is declared final by the Bankruptcy (Scotland) Act 1856, sec. 71. Bannatyne v. Thomson (Bannatyne's Trustee), p. 184. Cessio-Illegal Preference-Title_to Sue-Right of Trustee in Cessio to Reduce Illegal Preferences. A trustee in cessio has no title as such to reduce illegal preferences. Forbes' Trustee v. Forbes, p. 369. Illegal Preferences-Act 1696, c. 5Cash Payment by Insolvent Debtor-Sums in Receipts Granted to Daughters-Loan -Proof. A husband who from time to time had received from his wife certain sums, partly her own and partly savings out of her housekeeping, on his undertaking to credit her in his books with principal and interest, within a fortnight after his wife's death in 1896, and in accordance with a promise made to her on her deathbed, granted to each of his daughters receipts for certain sums, amounting together to the sums at his wife's credit, as received by him from them respectively, and at the same time opened accounts in their names in which these sums were put to their credit, and in which interest was regularly added in subsequent years. At that time he was solvent. In 1902 the father found himself in difficulties, and on 3rd May he was unable to meet bills amounting to £1600. He subsequently cashed through his sons and son-in-law certain cheques which he had collected, and on 7th May he applied the proceeds to payment of the amounts due to his daughters, who were at the time aware that he was in difficulties. On 9th May the father granted a trust-deed, and on 17th May the trust-deed was suspended by sequestration. Held that the trustee on the sequestrated estate was not entitled to recover the amounts paid to the daughters, these being payments in cash of debts duly constituted and resting - owing. Thomas v. Thomson, January 13, 1865, 3 Macph. 358, and Coutts' Trustee v. Webster, July 8, 1886, 13 R. 1112, 23 S. L. R. 810, followed. Pringle's Trustees v. Wright, p. 396. Illegal Preference-Act 1696, c. 5Security Granted in Exchange for Another Security - Novum Debitum. Bankruptcy (Scotland) Act 1856 (19 and Vict. c. 79), sec. 6. Where the holder of a security surrenders it and takes from the debtor a new security over different subjects, this transaction, even although it takes place within sixty days of the bankruptcy of the debtor, is not reducible under the Act 1696, c. 5. In consideration of a loan, A granted to B a disposition and assignation of his pro indiviso right in a trust estate which had vested in him but was subject to a liferent, and particularly conveyed his rights in heritable subjects at X, which formed part of the trust estate. This disposition was not recorded. Subsequently, with the knowlehge and consent of B, who acted as law-agent in the transaction, A granted a disposition and assignation of his rights in the said trust estate to C, which was recorded in the Register of Sasines. On the expiry of the liferent the trust estate was realised, the heritable subjects at X were assigned to another beneficiary, and A obtained certain other heritable subjects at Y. B, in the knowledge of this realisation, did not oppose it, but obtained from A an ex facie absolute disposition of the Y subjects. The former disposition and assignation was not discharged, and remained in B's hands. The disposition of the Y subjects was recorded in the Register of Sasines, but within sixty days of the date of recording A became bankrupt. Held (aff. judgment of Lord Low, Ordinary) that the disposition of the Y subjects was not reducible under the Act 1696, c. 5, and sec. 6 of the Bankruptcy Act 1856. Roy's Trustee ". Colville & Drysdale, p. 530. Bankruptcy - Sequestration -- Bankrupt's Petition Presented after Presentation of Creditor's Petition-Procedure-Recal Expenses. After a petition for sequestration had been presented in the Bill Chamber by a creditor and an interlocutor granting warrant to cite had been pronounced, the debtor (before the expiry of the inducia in that petition) presented a petition for sequestration in the Sheriff Court. Neither Court was informed of the proceedings in the other Court, and awards of sequestration under both petitions were granted, the award upon the debtor's petition being granted immediately and being consequently first in date. The creditor presented a petition for recal of the sequestration awarded on the debtor's petition. The Lord Ordinary recalled as craved and found the petitioner in the debtor's petition and the trustee elected thereunder personally liable, conjunctly and severally, in the expenses of the petition for recal. Barns Graham v. Bowie, p. 588. Sequestration Valuation and Deduction of Security-- Withdrawal of Claim by Creditor after Assignation of Security Demanded by Trustee-Bankruptcy (Scot land) Act 1856 (19 and 20 Vict. cap. 79), sec. 65. A bankrupt's estate was sequestrated on 23rd June 1900. The creditor in a heritable bond for £1000, granted by the bankrupt, lodged a claim under section 65 of the Bankruptcy (Scotland) Act 1856, valuing the security at £850, and claiming to be ranked for the balance of £150. On 31st December 1901 that claim was admitted to a ranking. On 22nd January 1902 the trustee on the sequestrated estate intimated to the creditor that he desired an assignation of the security in terms of section 65. On 25th January, before any dividend had been paid, the creditor withdrew his claim. The trustee maintained that it was too late for the claim to be withdrawn, and raised an action for declarator that he was entitled to an assignation. Held that the creditor, by valuing the security for the purpose of ranking, virtually offered the security to the sequestrated estate at the value put upon it; that the trustee's intimation that he desired to take over the security at that value was an acceptance of the offer; and that the creditor could not after such acceptance withdraw his claim for a ranking to the effect of disentitling the trustee to an assignation. Macdougall's Trustee v. Lockhart, p. 655. Bankruptcy-Sequestration-Specification of Debt upon which Award Proceeds-Entail-Entail (Scotland) Act 1882 (45 and 46 Vict. c. 53), sec. 18. The Entail (Scotland) Act 1882 enacts--"If the estates of such heir of entail in possession of an entailed estate shall be sequestrated for debt incurred after the passing of this Act, the trustee on his sequestrated estates shall be entitled to apply to the Court for authority to disentail the estate." . . A petition was presented for sequestration of the estates of an heir of entail in possession of an entailed estate, proceeding upon debts incurred partly prior and partly subsequent to 18th August 1882, the date of the Entail (Scotland) Act 1882. The heir of entail prior to the presentation of the petition had offered to pay the portion incurred subsequent to that date, and in his answers repeated that offer, and by minute of amendment further offered to consign the amount of it. He asked that the award of sequestration should contain a special declaration of the particular debt upon which it proceeded. The Lord Ordinary on the Bills granted sequestration in common form upon the petition as presented. Braby, Petitioner, p. 859. See Process-Contract. Bankrupt's Petition. See Bankruptcy. Bequests in Subsequent Codicils. See Suc for a cheque, signed by three persons as drawers, and left blank in the name of the payee, the bank upon whom the cheque was drawn, by way of advance to the drawers, paid the sum in the cheque to one of them, and opened an account in name of the three drawers which was debited with the sum so paid and advanced. Held that the cheque was a bill of exchange, and that the three persons who signed the cheque as drawers were liable singuli in solidum to the bank as holders for the amount advanced on the cheque. Laurence Henderson, Sons, & Company, Limited, and Liquidator v. Wallace & Pennell, 70. Bill of Exchange-Proof-Parole-Competency of Parole Proof of Agreement to Renew Bill during Definite Period on Certain Conditions-Bills of Exchange Act 1882 (45 and 46 Vict. cap. 61), sec. 100. In defence to an action brought by a firm of brewers against a public-house keeper for the amount due under a bill drawn by the pursuers upon the defender and accepted by him, the defender averred that the pursuers had advanced him money upon bill under an agreement, in terms of which interest was to be paid on the amount, and the bill was to be renewed from time to time during the currency of the defender's lease of his public-house, provided the business continued profitable and certain conditions were fulfilled by the defender; that for nine years the bills had been renewed from time to time under this agreement; that the bill now founded upon was a renewal of the original bills, and although ex facie payable three months after date was subject to the agreement as to renewal; but the defender's business had been profitable and the conditions of the agreement had been observed by him, and that his lease had still five years to run, but that the pursuers had refused to renew. Held that under section 100 of the Bills of Exchange Act 1882 the defender was entitled to a proof by parole of the alleged agreement, being an agreement to renew for a definite period upon conditions, although the effect would be to contradict his written obligation as appearing on the face of the bill. National Bank of Australasia v. Turnbull & Co., March 5, 1891, 18 R. 629, 28 S.L.R. 500; and Gibson's Trustees v. Galloway, January 22, 1896, 23 R. 414, 33 S.L.R. 322, distinguished. Dryborough & Company, Limited v. Roy, 591. Black List. See Reparation—Process. Blench-Holding. See Superior and Vassal. Bondholder and Trustee for behoof of Creditors. See Heritable Security. Bond of Guarantee. See Writ. Bond over Lands subject to Entail. Entail. Boundary. Property. The See See River-Sea - Harbour— Breach of Certificate. See Justiciary Cases. Breach of Contract. See Contract-PublicHouse. Breach of Faith. See Contract. Breach of Interdict. See Process, Building. See Superior and Vassal. Building on Subjects Originally Agricul Buildings Erected on Back Green. See Burdens Imposed or to be Imposed. See Burgh-Audit-Appointment of BurghAuditor-Statute-General and LocalNothing in General to “Supersede, Prejudice, or Affect" Provisions of LocalTown Councils (Scotland) Act 1900 (63 and 64 Vict. cap. 49), secs. 94, 95, and 117 -Irvine Burgh Act 1881 (44 and 45 Vict. cap. xxi.) The provisions of the Town Councils (Scotland) Act 1900, relative to the appointment of auditors of burgh accounts by the Secretary for Scotland, do not apply in cases where the audit of the burgh accounts is provided for by a local Act. Smith v. Magistrates of Irvine, p. 76. Election of Town Councillors Councillor Representing One Ward Elected for Another Ward-Acceptance of New Office and Resignation as Representative of Original Ward Mode of Filling up Vacancy Town Councils (Scotland) Act 1900 (63 and 64 Vict. c. 49), secs. 12, 13, 36, and 47-Glasgow Corporation (Tramways and General) Order Confirmation Act 1901 (1 Edw. VII. c. lxxiv.), sec. 25. In a city and royal burgh divided into wards a person who was already a member of the council as a representative of the 6th Ward, and whose term of office had not expired, was nominated as a candidate and was elected as a councillor for the 17th Ward. He accepted office without either having previously or at the same time resigned office as councillor representing the 6th Ward, but he resigned office as a representative of the 6th Ward a few days later. Held (1) that he was now entitled to sit as a member of council for the 17th Ward; (2) that there was now a vacancy in the 6th Ward, but not in the 17th Ward; and (3) that the vacancy in the 6th Ward should be filled up by an election held under the provisions of section 25 of the Glasgow Corporation (Tramways and General) Order Confirmation Act 1901, being the provisions of a local Act as to filling up vacancies "occurring in the Corporation in the course of the year by the death, disability, or resignation of any member," and not in accordance with the provisions of the Town Councils (Scotland) Act 1900, sec. 36. Town Clerk of Glasgow, Petitioner, p. 114. Trade Incorporation Appropria tion of Funds of Incorporation by Surviving Members - Burgh Trading Act 1846 (9 and 10 Vict. cap. 17)-Judicial Factor-Title to Sue-Right of Judicial Factor to Recover Sums Appropriated before his Appointment. Held (1) that a corporation recognised by statute must subsist till dissolved by statutory authority, and that its funds can only be administered by the corporators, whether many or few, for the purposes recognised by its existing regulations; (2) that consequently the surviving members of a burgh trade incorporation, whose exclusive privileges were abolished by the Burgh Trading Act 1846, were not entitled to divide among themselves any part of the funds of the incorporation; and (3) that a judicial factor appointed by the Court upon the estate of the incorporation had a good title to sue the members of the incorporation, and the representatives of deceased members, for funds so appropriated prior to his appointment. Tait v. Muir, p. 242. Burgh-Dean of Guild-Street-Powers of Corporation-Alteration of Line of Footpath Glasgow Building Regulations Act 1900 (63 and 64 Vict. c. cl.), sec. 25 -Improvement of Footpath or StreetCompensation. By section 25 of the Glasgow Building Regulations Act 1900 it is provided that "in order to secure as far as possible a regular line and satisfactory width and level for the footpaths in any street," the Corporation may, after notice to the person responsible for the maintenance of the footpath, "alter the line and level of the footpath, increase or lessen the width thereof, and carry out such other operations as may be necessary or desirable for the improvement of the footpath or street." In 1899 a builder purchased a block of buildings extending for 300 feet along one side of a street in Glasgow, made certain alterations on the buildings, and added to the existing footpath of 8 feet in width a plot of ground 10 feet in width in front of the buildings, thus increasing the width of the footpath to 18 feet. In 1900 the Corporation of Glasgow resolved that the street would be improved by taking a strip of 6 feet in width off this footpath and adding it to the carriageway, thus reducing the width of the pavement to 12 feet and increasing the width of the carriageway from the centre of the road to the edge of the pavement to 18 feet. Held that in virtue of the provisions of section 25 the Corporation were entitled to lessen the width of the footpath in the manner proposed without paying any compensation to the builder. Renwick v. Neilson, p. 250. -Public Official - Town Clerk - Dismissal of Town Clerk by_Resolution of Town Council-Action of Declarator that Resolution of Town Council Dismissing Town Clerk Valid. By resolution at a special meeting the Town Council of a Royal Burgh dismissed the Town Clerk from his office on account of alleged drunkenness and gross neglect of duty. As the Town Clerk refused to recognise their right to dismiss him the Town Council raised an action against him for declarator that the resolution was valid and that the defender had been duly dismissed from office at its date. The defender pleaded that the action was incompe |