. Ree

1885

to have opportunity allowed to him to instruct this, and the charge should be suspended."

The respondent pleaded-"(1) No relevant case for suspension. (2) The sums contained in said decree being justly due by complainer to respondent, the suspension should be refused, with expenses. (3) The whole proceedings having been orderly and regular, and the complainer's averments being unfounded in fact and in law, the suspension should be refused, with expenses."

The note having been passed, the process was marked to Lord M'Laren. His Lordship refused the suspension, and found the charge orderly proceeded.

The complainer reclaimed.

At advising

LORD YOUNG-I think there can be no question that the Lord Ordinary's decision is right here, and it is not necessary to say anything even in explanation of it. It is ridiculous to say that while if a registered letter is delivered to the person to whom it is addressed, and he grants a receipt, that is sufficient citation under the Act, yet if it is delivered to a man whom he sends for it, and he grants a receipt for it, that is not sufficient citation. It is a question here about a citation in what might, as far as the value of it goes, as well have been a small-debt action in a Small Debt Court. The Act provides that a citation made by registered letter shall constitute a legal and valid citation, unless the parties cited shall prove that such letter was not left or tendered at his known residence or place of business." That is not quite accurate language, but it does not mean that if a small-debt citation is proved in the Court of Session or the House of Lords not to have been tendered at the person's known residence or place of business it shall be invalid. It means proved in the Court from which the citation flows. If the party says he was not cited he may go the Sheriff and prove that to his satisfaction, but I repeat that "proved" does not mean proved here, but proved there.

LORD CRAIGHILL and LORD Rutherfurd CLARK concurred.

The LORD JUSTICE-CLERK was absent.

The Court adhered.

Counsel for Complainer - Scott. AgentsMaitland & Lyon, W.S.

Counsel for Respondent-Shaw. Agent-Geo. Andrew, S.S.O.

LANDS VALUATION COURT.

Tuesday, January 27.

(Before Lord Lee and Lord Fraser.) GOSNELL AND THE MARR TYPEFOUNDING

COMPANY (LIMITED).

(See ante, vol. xx. p. 431 (10 R. 665), and vol. xxi. p. 396 (11 R. 563).

Valuation Cases-Lease-Annual Value-Consideration other than Rent-Power to Build.

Premises were let to a tenant under a lease for twenty-one years, with power to him to erect buildings additional to those already on the ground, under the conditions that these buildings were to be of a stipulated value, and to be erected within a certain time, and The to be the property of the landlord. tenant erected valuable buildings upon the ground under this lease. Held that these stipulations were equivalent to an obligation on the tenant to build, that such an obligation was a consideration other than the rent conditioned in the lease, and that therefore the assessor was entitled to value the subjects apart altogether from the conditions of the lease.

At a meeting of the Magistrates and Town Council of the burgh of Edinburgh for the purpose of disposing of appeals against the assessor's valuations of property in the burgh for 1884-85, an appeal was made at the instance of both proprietrix and tenants against the valuation of £180 put upon the premises known as Whiteford House, Canongate. Mrs Gosnell, residing at Reigate, Surrey, was the proprietrix, and the Marr Typefounding Company (Limited) were the tenants. The lease stated that the subjects were let to the company for twenty-one years from Whitsunday 1878 "in consideration of" the rent of £120. Under this lease the company had "power and liberty" (for the purpose of the business only) to erect such buildings in addition to those already on the ground as they may see fit;" that the buildings so to be erected "shall be erected within two years" from the date of the lease, be kept up by the tenant, and left in good condition at the end of the lease, and be the property of the proprietrix, and be of the value of £500. No further rent was to be paid for these buildings.

In virtue of this power given in the lease the tenants had erected buildings on the ground of the annual value of £60.

On the ground that this power to build was truly an obligation to build, and was a consideration other than the rent conditioned in the lease, in the sense of the 6th clause of the Lands Valuation (Scotland) Act 1854, the assessor had disregarded the lease, and valuing the property independently, had fixed it at the said sum of £180.

The Magistrates confirmed the valuation.

Mrs Gosnell and the Marr Typefounding Company took a Case.

Argued for the appellants-The assessor was bound to take the rent conditioned in the lease as the fair annual value of the subjects. There was

no consideration other than the rent in the lease in the sense of the Act; there was merely power or liberty given to build, but there was no obligation. The fair test was this, Mrs Gosnell could not force her tenants to build additional buildings upon her ground, and if they attempted to do so after two years she could interdict them. The rent in the lease was the fair annual value of the subjects, and the assessor could not go behind it-North British Railway Company v. The Assessor for Leith, February 9, 1884, 21 Scot. Law Rep. 398, 11 R. 558; Lawson's Representatives v. The Assessor for Edinburgh, February 24, 1883, 20 Scot. Law Rep. 432, 10 R. 663.

The respondent was not called upon.

At advising

LORD FRASER-The property of the appellant Mrs Gosnell, situated in the Canongate of Edinburgh, and tenanted by the Marr Typefounding Company, is here made the subject of a Special Case for the third time. On the first occasion, in 1883, the Special Case set forth that the tenants were bound to pay a rent of £120, and that they had power to build upon the ground, but were under no obligation to do so. The sole question that was then argued was, whether the assessor was entitled to value the subjects with additions thereto voluntarily made by the tenants without being under obligation to build, or must enter the annual value at £120, being the rent stipulated in the lease? The Court held that as, according to the statements in the Special Case, the only consideration given by the tenants for the subject let was £120, that sum must be entered in the valuation roll as the annual value-Gosnell, 20 Scot. Law Rep. 431, 10 R. 665-irrespective of the additional value derivable from the tenants' alleged voluntary additions.

The second Special Case that was presented was in the year 1884, and was disposed of on 9th February of that year-The Marr Typefounding Company, 21 Scot. Law Rep. 396, 11 R. 563. From the Special Case it appeared that the assessor had entered the tenants as proprietor and occupier of the additional buildings that had been put up by them, and in this way the assessor thought that he could obtain an entry upon the valuation roll of the additional buildings to the amount of their value, £60. The Court held that this was erroneous, they not being proprietors and occupants, but merely tenants. In the Special Case it was again stated that there was no obligation imposed upon the tenants to set up the additional buildings. But the lease was produced to the Court, and it was then found that this statement was inaccurate. There was no dispute in the Case as to the annual value of the additional buildings that had been put up (which was £60), and therefore if the Court could have pronounced judgment in that Case against both proprietor and tenant the valuation would have been then corrected. But unfortunately the only party before the Court was the tenant, and as an increased value could not be put opposite the tenants' name without also putting an increased rent against the proprietor, who was not a party to the Special Case or to the appeal, we were obliged once more to hold that the annual value was the money rent of £120.

In the third Special Case, which is now before us, the statement is, that besides the rent of £120

payable to the landlord there was this other consideration for the lease, viz., that the tenants should within two years erect buildings upon the ground to the value of £500, and the lease stipulates (which is not set forth in the Case) that the buildings so erected shall become the property of the landlord. The lease has been produced, and I consider that this is its plain import and meaning. There is given a power which is to be executed not merely at the will of the tenant, but the power to erect subjects of a specific value so as to secure to the landlord buildings of the value of £500. This obligation the tenant has fulfilled, and buildings of the value contracted for have been built and added to the original subject of the lease. I therefore hold that this was a case where there were other considerations for the lease besides the money rent, and the assessor was consequently bound, under the 6th section of the statute, to value the property as it stands, with all the additions made thereto by the tenant, and without being restricted by the stipulated rent of £120. No objection has been made to the valuation by the assessor so far as regards the annual money value of the property if the whole subjects originally let, along with the additions of the tenants, be taken into account. The determination of the Magistrates therefore was in my opinion right.

[Sheriff of Fife and Kinross. SHARP V. THE PATHHEAD SPINNING

COMPANY (LIMITED).

Reparation-Master and Servant-Culpa-Girl under Fourteen Years Employed in Dangerous Work-Factory-Factory and Workshops Act 1878 (41 and 42 Vict. c. 16), sec. 26.

A girl under fourteen was employed as a full-timer at a carding-machine in a factory. She was instructed not to touch or attempt to clean the machine while it was in motion, and she was given a stick with which, at a proper time, to clean off tow which might collect on the rollers. She attempted to clean it off with her hand while the machine was in motion, and sustained severe injuries in consequence. Held that, considering her age, the work was of a dangerous character, and that the injuries were attributable to the fault of the employers in setting her to such work.

Jane Sharp, a minor, with consent of her father, raised this action against the Pathhead Spinning

Company (Limited), Kirkcaldy, for the sum of £250 as damages in respect of injuries received by her while in their employment. At the time of the accident she was within a few days of being fourteen years of age. The work which she was set to do, which is fully described below, included the cleaning away from the teeth or heckles of a carding-machine the tow which collected thereon. She was doing this (contrary to orders) when the machine was in motion, and the sleeve of her dress was caught in one of the heckles. Her left arm was drawn between the rollers and so badly injured that it had to be amputated a little below the elbow. The ground of action was thus stated in the pursuer's pleas-in-law:-"(2) The defenders having failed to provide for the pursuer proper appliances for the cleaning of said machine, and thereby compelling her to use her hands for this purpose, and the pursuer in so doing having received the injuries condescended on, the defenders are liable for the consequences. (3) The pursuer being a young and inexperienced girl, the defenders in employing her must be held to have contracted to keep her free from all injury she might sustain in assigning to her such a dangerous duty as the charge of a carding-machine. (4) Pursuer being a child within the meaning of the Factory and Workshops Act of 1878, and she, in contravention thereof, having been employed to clean machinery in motion, and in the course of which she received the injuries condescended on, she is entitled to compensation."

The defenders stated that the pursuer had represented herself to them to be above the age of fourteen, and that the accident occurred through her unnecessarily and against their orders and rules interfering, while the machine was in motion, with a part thereof at or near to one of the lower wheels at the side of it, where she had no occasion or right to be, her injuries being thus due to her own fault.

They pleaded-" (2) The defenders not having been to blame for the said accident, and the same having been caused by the pursuer's own fault, the defenders are entitled to absolvitor."

The nature of the work which the pursuer had to do, as it appeared at the proof, is thus explained in the note of the Sheriff-Substitute :-"From the evidence as a whole, and his own observation, the Sheriff-Substitute thinks, that while the work at which the pursuer was engaged is somewhat hard and trying work, and that consequently careful managers generally avoid employing such young girls at it, it is not of itself dangerous. It consists in attending to eight cases which feed the machine with tow, and another case into which the machine discharges. In addition to this, when the machine gets clogged with the tow which is continually flying about it, the worker must 'setoff' the machine—that is, disengage it from the general motive power-which is done by pulling out a handle, and then take off the tow. Besides this there are stated times in the day when the machinery is stopped for the purpose of more thorough cleaning. Now, in none of these operations (except possibly in pulling out the handle, which is perhaps nearer a driving-belt than it ought to be) has the worker to put her hands or any other part of her person near going machinery. Evidence was led to show that the pursuer had been told not to attempt to clean the machine while in motion, and that she had been found

VOL. XXII.

fault with for touching it while in motion. She denied that she had.

The Sheriff-Substitute (GILLESPIE) pronounced this judgment :-" Finds in fact that the accident which resulted in the loss of the pursuer's arm was caused by her attempting, contrary to express orders, to clean part of the carding-machine while it was in motion: Finds in law that she is not entitled to recover damages from the defenders Assoilzies the defenders from the conclusions of the action.

"Note. The pursuer was a month under fourteen years when she was engaged by the defenders, and eight days under fourteen when the accident occurred. It is not alleged that she had an educational certificate in terms of the 26th section of the Factory and Workshops Act 1878. The defenders therefore committed a breach of the statute in employing the pursuer as a fulltimer. The proof shows reprehensible laxity on the part of the defenders and another employer in taking on a girl as a full-timer without any proper inquiry as to her age. Still, the breach of the Act did not of itself make the defenders responsible for every accident that might befall the pursuer in her work, although it may create a certain presumption against them. [His Lordship then explained the nature of the work (as above given), and stated his grounds for concluding on the evidence that the pursuer had been told not to touch the machine when in motion.] The Sheriff-Substitute is very sorry (because it is impossible to prevent one's sympathies being with the pursuer) to be obliged to come to the conclusion that the pursuer was doing a thing which was not only obviously dangerous, but which she had been expressly forbidden to do. Great allowance must be made for the pursuer's youth, and the Sheriff-Substitute feels hesitation whether he has made enough allowance, but still, after carefully reading the decisions cited, he inclines to think that even a girl of the pursuer's age, who acts as she did, cannot make her employers liable for the consequences. Although the pursuer was new to that particular machine, she had worked in factories for some time, and ought to have known the necessity of strict adherence to the rule of not touching a machine in motion."

On appeal the Sheriff (CRICHTON) adhered to the judgment of the Sheriff-Substitute.

"Note. In the pleas-in-law annexed to the petition several grounds for holding the defenders liable to the pursuer are set forth. At the discussion which took place before the Sheriff the grounds of liability stated in the second and fourth pleas-in-law were not insisted in, but it was maintained that the fault on the part of the defenders which rendered them liable to the pursuer was their having employed so young a girl to work at a dangerous machine. In support of that contention reference was made to the opinions of the Judges in the case of Ross v. Thomson & Company, November 2, 1882, 20 Scot. Law Rep.

46. The pursuer at the time of the accident was within a few days of fourteen years of age, and the proof shows that it is not usual to employ girls under the age of sixteen or seventeen to work at a carding-machine. Notwithstanding what is stated by some of the witnesses, the Sheriff, after inspecting the machine, concurs with the SheriffSubstitute in thinking that working at a cardingmachine is not dangerous employment. What

NO. XXIV.

titled to expenses in the Inferior Court and in this Court," &c.

Counsel for Appellint-Armour. Agent-N. J. Finlay, W.S.

Counsel for Respondent-Dickson. AgentsRhind, Lindsay, & Wallace, W.S.

Friday, January 30.

SECOND DIVISION.

[Sheriff of Dumfries and Galloway. GALLOWAY V. COWDEN.

Lease-Service Road-Lease of Farm as Possessed by Outgoing Tenant.

Two farms, the property of the same proprietor, were let by him "as previously possessed" by the outgoing tenants. A service road ran along close to the march within one of the farms, but formed a short route between the steading of the other farm and certain fields near the march. In an action to prevent the tenant of the latter farm from using the road, held that the road had been so used during the previous tenancy of the farms, and therefore (distinguishing from Duncan v. Scott. June 20, 1876, 3 R. (H. L.) 69) that it might still be lawfully used as an accessory of the defender's farm; and (2) that no case for regulation of the road had been established.

Peter Cowden and James Galloway entered at Martinmas 1874 and Martinmas 1880 respectively as tenants of the adjoining farms of Cardrain and East Muntloch, in the county of Wigtown, both the property of the Earl of Stair. Galloway's lease of East Muntloch provided that the farm was to be let to him "as presently occupied by David M'Kitterick," while Cowden's lease of Cardrain provided that it was let to him as " presently possessed by Alexander Drynan." The farms lay between the two public roads known as the Cardryne Road and the Cairngaan Road, and were separated by a march-fence extending nearly the whole way between these two public roads. On the north side of this fence there was a service road from the Cardryne Road on the west to the Cairngaan Road on the east, passing wholly through Galloway's lands. About 200 yards from its junction with the Cairngaan Road it struck northwards through a field of Galloway's.

Galloway raised this action to have Cowden interdicted from making any breach or opening in the march-fence between the farms, and from driving carts through these openings on to the cross road. He averred that the cross road was wholly on the lands let to him, and was kept up by him alone, and that the defender was wrongfully making an opening in the march-fence and carting turnips from one of his fields along the service road and out on to the public road to the east of his farm, and was thus cutting up and injuring the service road.

"" 66

The defender averred that under his lease he became tenant and occupant of his farm "as then possessed by Alexander Drynan.' "(Stat. 2.) The defender's predecessors in said farms or lands regularly used the road condescended on by the pursuer both as a footway and for the passage of

horses and wheeled vehicles by making openings from time to time in said fence as occasion required, and otherwise, and the defender has since his entry to the foresaid subjects used and enjoyed the said road in a similar way and to a similar extent up to the intimation of the interim interdict granted against him at the pursuer's instance in this action. The defender is entitled, in accordance with the practice of his predecessors in said farm, and in virtue of his rights and privileges as tenant thereof, to make openings in said fence to enable him to obtain access to said road, and to fill up such openings when such purposes are served. The said road could not be used by the defender for the benefit and uses of his said farm unless access is obtained thereto through said fence as formerly. The public have regularly, continuously, and uninterruptedly used and enjoyed the road condescended on as a footway and for the passage of horses and wheeled vehicles from time immemorial, or for a period of upwards of forty years prior to the present time." He further averred that it would be a serious hardship and inconvenience to him to have to use other routes which made the distance for carting several miles greater.

The pursuer pleaded, inter alia-"(2) The defender as tenant of the farm of Cardrain having no right of passage therefrom, to, or servitude over the road through the pursuer's farm, ought to be interdicted from driving carts or otherwise using said road by means of said communication in the march-fence.'

...

The defender pleaded-"(1) The defender having possessed and enjoyed the use of the road condescended on for upwards of seven years is entitled to a possessory judgment. (3) The defender having leased his farm as held by his predecessors, is entitled to the privileges enjoyed by them, and the use of the road in question being one of these, the interim interdict should be recalled, and he should be assoilzied, with expenses.' He also pleaded, separatim, that the disputed road was a public road.

Proof was led, the import of which appears from the note of the Sheriff-Substitute and the opinion of Lord Craighill.

The Sheriff-Substitute (MAXWELL) pronounced this interlocutor:-"Finds that the pursuer has been tenant of the farm of East Muntloch from Martinmas 1880; finds that the defender has been tenant of the farm of Cardrain from Martinmas 1874; finds that there is a cross road from the Cardryne public road to the Cairngaan public road, along the north side of the march fence between said farms; finds that the defender and his predecessors have for more than seven years prior to November 29, 1882, been in continuous possession, and have used and exercised the right of access along said cross road to their fields on the said farm of Cardrain, south of said march fence; therefore finds, in point of law, that defender is entitled to the benefit of a possessory judgment; therefore recals the interim interdict, assoilzies the defender from the conclusions of the petition, &c.

“Note.- . . . . The real question at issue between the parties appears to be whether the defender is entitled to make openings in the marchfence, and to use the road as a means of access from the two public roads to the three fields on his farm south of the march-fence. The defender,