v. Cairns

1354

When the Border Burghs were created in 1868 there is no reason to suppose that a different rule was intended to apply from that which applied to the burghs under the Act of 1832. We may reasonably suppose that the intention was to prevent disputes, and that being so, we have to consider whether under the Act of 1868 the houses and buildings in Schedule A of that Act were brought under the imperative rule of the Act of 1832.

The Act of 1832 provides by sec. 5, sub-sec. 4, that "every building through which or through any part thereof any boundary hereby established shall pass shall be considered as within such boundary." Therefore if that rule is to be read into the Act of 1868, then the claim is bad, for it is a claim in respect of subjects within the burgh. By sec. 56 of the Act of 1868 it is provided[His Lordship here read section 56 as quoted supra in Lord Craighill's opinion]. opinion that on a fair construction of that section the effect of it is to read the provision of the Act of 1832 into the Act of 1868, and that this boundary line running through the subjects places the whole within the burgh.

I am of

The Court sustained the appeal, reversed the judgment of the Sheriff, and disallowed the claim.

Counsel for Appellant (Objector)-Dickson. Agent-Sir John Gillespie, W.S.

Counsel for Respondent (Claimant)-Brand. Agent-William Archibald, S.S. C.

Monday, November 3.

[Sheriff-Substitute of Lanark

shire.

JACK V. PATRICK.

Election Law-County Franchise—Proprietor— Title Building Society.

A member of a building society claimed to be entered on the roll as owner of a house allotted to him by the society. The houses were held under a long lease taken in name of trustees for the society, and the claimant was entitled to an assignation on payment of the full price. It was admitted that the price, which was payable by instalments, was fully paid up in May of the year preceding that in which the claim was made, but no receipt was produced. The Court rejected the claim on the ground that there was no writing to instruct the ownership.

At a Registration Court for the Southern Division of the County of Lanark, held at Wishaw on 25th September 1884, David Patrick, writer, Hamilton, mandatory of William Annan, a voter on the roll, objected to George Jack, traveller, Glasgow, being entered on the roll as a voter for the said division of the county, on the ground that he had not been proprietor for six months prior to 31st July.

The Sheriff-Substitute (BIRNIE) sustained the

objection. The objector took a Case, in which these facts were stated-"Mr Jack was a member of the Stonehouse Building Society No. 10. That society several years since obtained a long lease of certain subjects in Stonehouse from LieutenantGeneral Lockhart of Cambusnethan, the lease being taken in the name of trustees for the society. Several houses were erected by the society on the ground let by said lease, and these were allotted to the various individual members. The houses referred to, being part of those erected as aforesaid, were allotted to Mr Jack, he being entitled to an assignation to the same in payment of the full price thereof. A sum calculated as rent, with an additional sum to account of the price, was paid by Mr Jack quarterly, and it was admitted that the full price was paid by him in May 1883, but no receipt was produced therefor at the hearing. Soon after said month of May, and prior to 31st January last, an application on Mr Jack's behalf was made to General Lockhart's law-agents for an assignation to said house, but such assignation was not obtained until 26th July 1884. The delay arose not from any doubt as to Mr Jack's right to demand such assignation, but from his desiring a lease direct from General Lockhart, instead of an assignation to the society's lease. It was admitted that General Lockhart's agents acted for both parties in the preparation of the assignation.

"Mr Jack was entered on the valuation rolls of 1883, 1884, and 1884-1885, as proprietor of the house, and was rated for poor-rates, county rates, and feu-duty in November 1883 and January 1884 respectively. He also paid a half-year's feu-duty at Whitsunday 1884. The annual value of the subjects entered on the valuation roll is sufficient to afford the qualification."

The question of law for the decision of the Court was, "Whether Jack was proprietor of the houses within the meaning of the Representation of People (Scotland) Act 1868, for six months prior to 31st July 1884 ?"

The appellant argued that there was here sufficient evidence of ownership-Gow v. Watson, Dec. 2.1865, 4 Macph. 115; Kinniburgh v. Donaldson, Dec. 2, 1865, 4 Macph. 119; Stewart v. Flett, Dec. 19, 1868, 7 Macph. 294; Stewart v. Flannigan, October 21, 1869, 8 Macph. 13; Howden v. Blackwood, Nov. 14, 1881, 9 R. 1.

At advising

LORD FRASER-There can be no doubt that to entitle a man to be put on the roll he must produce a written title. It is not necessary that the title shall be a formal one, but there must be something by which he can establish his right. There are many cases which decide that receipts for feu-duties do not establish ownership, and all that we have here is an admission that the instalments of the price were paid up. No receipts were produced. Mr Campbell suggested, and perhaps properly, that it must be assumed receipts were granted, but even that would not advance this case beyond the cases in regard to feu-duties. Receipts for instalments are not enough, and it must be observed that in all these cases in which the Court has sustained the right of persons claiming through building societies, something more than receipts were produced. There must be minutes of the society produced, binding themselves to grant a conveyance to the

Where the pursuer of an action of damages for slander was bankrupt, and the action was not raised for two years after the slander complained of, without any good reason being stated for the delay, the Court refused to allow him to proceed with his action without finding caution for expenses.

James Collier, formerly tenant of Dunecht Sawmill, Aberdeenshire, thereafter residing at Daldowie Lodge, Broomhouse, near Glasgow, on 23d April 1884 raised the present action against John Ritchie & Co., printers and publishers of the Scotsman newspaper, concluding for £500 in name of reparation, damages, and solatium in the following circumstances:-In the Scotsman of Monday, February 27, 1882, in an article headed "The Dunecht Mystery-Arrests in Aberdeen," the following paragraph appeared :-" Aberdeen, Sunday Night-Inspector Cran left here for Dunecht on Saturday to arrest a man named Collier, but the latter could not be found."

The pursuer averred that the statements published in the said paragraph were absolutely false, and were calumnious of and injurious to him, and that he was thus represented not only of being suspected of a crime but of absconding to escape the consequences. He further averred that no such warrant was issued at that time, and that he was at home at the Dunecht Sawmill at the time in question. The statements made in the Scotsman were copied into, among others, the Aberdeen Evening Express, aud were very injurious to him in his business. Important and valuable contracts were, he alleged, in consequence thereof, taken from him, and upon 7th August 1882 he was compelled to execute a trustdeed for behoof of his creditors, and his profitable business was destroyed. He was also obliged to seek employment elsewhere.

The defenders, while admitting the publication

of the paragraph of 27th February 1882, explained that the information was supplied to them by the Central News Association of London, that it was published by them in good faith, and in pursuance of their business to keep the public informed of what was being done by the authorities in the

case.

The pursuer had written through his agent to the defenders upon the said 27th February, intimating on the authority of the procurator-fiscal that no warrant against him had ever been applied for, and requesting the defenders to withdraw the paragraph and to pay him twenty guineas in reparation. A statement on which the defenders relied as a contradiction of the statement reported upon the 27th February was inserted in the Scotsman of the following day but no money compensation was made. The defenders averred that the pursuer at the time accepted the statement in the issue of 27th February as a complete and sufficient contradiction, and that no attempt was made to reopen the matter till January 1884, when a new demand was made.

The defenders also alleged that upon 27th July 1882 the pursuer was arrested in Glasgow on a charge of having been concerned in the removal of the body of the late Earl of Crawford and Balcarres from the family vault at Dunecht House, that he was taken to Aberdeen, where he emitted a declaration, and was thereafter liberated.

The pursuer pleaded, inter alia, that he was entitled to the sum concluded for, as the statements of the defenders were false and calumnions.

The defenders pleaded, inter aliu—“(2) The pursuer having been divested of his estate by his subsisting trust-deed of 7th August 1882, he is not entitled to pursue this action, or at least not without finding caution for expenses." They also pleaded that the pursuer was barred by the contradiction which they had published the following day, and by his waiver thereupon and for two years thereafter of all claims against them.

The Lord Ordinary appointed intimation of the process to the pursuer's trustee, and he having failed to sist himself, sustained the defenders' second plea above quoted, and ordained the pursuer to find caution for expenses within fourteen days. The time was thereafter prorogated for six days, and the pursuer having failed to find caution in that time, the Lord Ordinary, on 19th July, in respect of the pursuer's failure to find caution, dismissed the action.

The pursuer reclaimed, and argued, that after the opinions expressed in Clarke v. Muller, January 16, 1884, 11 R. 418, the question of caution in a case like the present was one for the discretion of the Court. Here the circumstances were special-the paragraph which was libellous was admitted, it had been the cause of the pursuer's bankruptcy, and the defenders on that account were barred from pleading the bankruptcy which they themselves had caused as necessitating the pursuer's finding caution. The pursuer's true position was like that of a defender, as his prima facie case had been admitted by the defenders.

Authority M'Alister v. Swinburne & Company, November 7, 1873, 1 R. 166.

Argued for defenders-The pursuer was barred by mora. No demand had been made for two years. In such a case the Court would not be inclined to grant the pursuer any indulgence.

The Court called upon the pursuer to explain the cause of the delay in bringing the action. No satisfactory explanation was offered.

At advising

LORD PRESIDENT-After giving this matter my most careful consideration I am disposed to agree with the course which the Lord Ordinary has taken. He has appointed the pursuer to find caution as a condition of his being allowed to proceed with the action of damages in respect of his bankruptcy, and that order not having been fulfilled, he has by the interlocutor of 19th July dissmissed the action. All the circumstances of the case are rather favourable to the pursuer being allowed to proceed without finding caution except one, but that one, I think, is sufficient to turn the balance against him. The slander complained of was published upon the 27th February 1882, and this action was not raised until the month of April last. That delay is entirely unexplained. We have asked for an explanation from the pursuer's counsel, but he has not been able to give any. Upon that ground-and that ground alone -I think the Lord Ordinary has done right in dismissing the action in respect of no caution.

LORDS MURE and SHAND concurred.

Counsel for Pursuer-Gardner. Agent--J. A. Trevelyan Sturrock, S.S. C.

Counsel for Defenders-R. V. Campbell. Agents --Henderson & Clark, W.S.

Tuesday, November 4.

SECOND DIVISION. [Lord Adam, Ordinary. KIDD AND ANOTHER (Kidd's trustees) v.

HANDYSIDE & COMPANY AND OTHERS.

Ship-Accounting by Co-owners-Trust.

K. bought on joint-account of H. & Co. and himself ten shares of a ship, H. & Co. advancing the price, and the shares being conveyed to A., one of the two partners of H. & Co., who held them in trust for K. and H. & Co. K. died, and after his death A., who was one of his trustees, conveyed five of the shares to H., the other partner of H. & Co., the transfer being intended to include one-half of the five shares belonging to K's trustees. In a subsequent action by K's trustees, in which they claimed to be entitled to profits on the footing that five shares had all along belonged to them, H. maintained that the five shares had been conveyed to him as an individual at the desire of the trustees, because K's trust estate could not pay the price of them. Held that, assuming this to be the true account of the transaction, it was not a relevant answer to the claim of the trustees, because it was not proved that A. had authority from his co-trustees to make such a conveyance of the shares.

This was an action at the instance of David Kidd and Thomas Aitken, the surviving trustees and executors acting under the trust-disposition and settlement executed by the deceased John Kidd,

merchant in Leith, dated 23d April and recorded in the Books of Council and Session 14th May 1880, against A. G. Handyside & Co., merchants and shipowners in Leith, and Alexander George Handyside, as a partner of the said firm of A. G. Handyside & Co. and as an individual, and also against the said Thomas Aitken, the other partner of the said firm, as such partner and as an individual, for any interest he might have, concluding for payment of £571, 2s. 6d. as one-half the profits of five shares of the ship "Danube earned between September 1879 and August 1882.

The defence to the action was that the shares in question were the property of the defender Handyside as an individual.

The following were the facts of the case as narrated by the Lord Ordinary :-"In September 1879 the late Mr Kidd purchased 10-64th shares of the steamship 'Danube 'on behalf of himself and the defenders A. G. Handyside & Co. The arrangement between the parties is set forth in a letter addressed by the latter to Mr Kidd, of date 8th October 1879, which is in the following terms :— 'According to our verbal agreement, it is, we understand that the 10-64th shares of s.s. Danube," lately purchased from Mr C. W. Anderson for eight hundred pounds, advanced by us, are on joint account, we debiting the shares with 5 per cent. on outlay, and crediting you with half of the nett proceeds.'

"Of the same date Mr Kidd executed a bill of sale of the shares in favour of Mr Aitken, which was registered on the 9th of October. Mr Aitken and the defender Mr Handyside were sole partners of the firm of A. G. Handyside & Co., whose firm were to manage the Danube.' It appears to me, therefore, that Mr Aitken held these shares in trust both for Mr Kidd and for A. G. Handyside & Co., who had advanced the price. "Mr Kidd died on the 29th April 1880. appointed his widow, Mrs Kidd, the late Mr Ennson, and the pursuers, Mr Kidd, his brother, and Mr Aitken, his trustees and executors. They all accepted, but Mrs Kidd resigned on 10th August 1881, and Mr Eunson died on 2d September 1881.

He

"On 28th February 1881 Mr Aitken executed a bill of sale of five of the ten shares in favour of Mr Handyside, which was registered on the 4th of March following.

"The parties are at issue as to the reason why this bill of sale was executed by Mr Aitken.

"Mr Handyside alleges that Mr Aitken informed him, shortly after Mr Kidd's death, that his trustees had not money to pay the price of the shares which had been advanced by A. G. Handyside & Co., and that they wished them taken over by Mr Aitken and himself; that he agreed to this, and that hence the bill of sale came to be executed by Mr Aitken-he, Mr Handyside, believing that Mr Aitken, who was then, and is still, one of the trustees, had authority from the trustees for acting as he did.

"Mr Aitken, on the other hand, says that it was executed, not with the view of in any way affecting the rights or beneficial interest of Kidd's trustees in the shares in question, but because he thought it was just to Mr Handyside that as he had advanced half the money he should have half the property.

"Whatever is the truth of the matter, it is

clear that it was understood by both parties that the transfer included one-half of Kidd's trustees' five shares.

"There can be no doubt that the books of A. G. Handyside & Co. were subsequently kept in conformity with Mr Handyside's view of the matter. At the preceding balance, on 15th January 1880, there stood at the debit of the joint-adventure account a balance of £813, 5s. 2d., being the price of the shares and interest. This account was closed in January 1881 by a credit entry of a like amount, while each of the partners was debited with a sum of £406, 12s. 7d., and the profits arising on the shares were on four several occasions thereafter, down to February 1883, placed in the books to the credit of the individual partners, while no account of these profits was sent to Kidd's trustees, although a statement of the profits arising on three other shares held by them was periodically sent.

"The Danube' adventure was brought to an end by the sale of that vessel in August 1882, the price being payable in August 1883. The sum now sued for, £571, 2s. 6d., does not appear in any account in Handyside & Co.'s books prior to the dissolution of the firm in January 1883, but is one-half of the profits (including a share of the price of the vessel) which would be due to the pursuers Kidd's trustees on the footing that five shares had all along belonged to them, and that there was no valid transfer of the shares to Mr Handyside in February 1881. If that be so, I do not understand that any question is raised as to the sum sued for being the amount due.

The pursuers deny that Kidd's trustees ever authorised or consented to the sale of the shares to Mr Handyside.

"Mrs Kidd, who was a sine qua non, and Mr Kidd, who were two of the four trustees then acting, deny that they ever knew or heard of the transaction, and I see no reason to disbelieve them. Mr Eunson, who took charge of the trust matters, is now dead, but there is no evidence to show that he knew anything about it, while Mr Aitken, the fourth trustee, also denies it. It is no doubt true that in the inventory of Mr Kidd's estate given up for confirmation in November 1880, the amount of Mr Kidd's interest in the 'Danube' was stated to be three shares, being shares which he held in his own name, and that the same was stated to be the amount of his trustees' interest in a circular sent to the trustees by Messrs Handyside & Co. on 26th April 1882 with respect to a proposal to convert that into shares in a limited company, and was approved of by them without observation, but I do not think that any inference that might be drawn from these facts to the effect that the trustees knew that the five shares in question were no longer their property can prevail against the distinct evidence of the trustees that they did not know of or authorise the sale to Mr Handyside. In these circumstances, accordingly, I do not think that it is proved that Mr Aitken had any authority to transfer Kidd's trustees' shares to his partner Mr Handyside, and therefore I think that the trustees were entitled to challenge the sale when it came to their knowledge. I think, therefore, that the rights of parties must be dealt with as if no such transfer had taken place, and that A. G. Handyside & Co. and the individual partners are bound in terms of their letter of 8th

October 1879 to credit or pay Kidd's trustees with half of the nett proceeds of the ten shares.

"The firm of A. G. Handyside & Co. was dissolved in January 1883. Mr Aitken, one of the partners, has paid one-half of the share of the proceeds of the Danube' due by the firm, and I think Mr Handyside, the other partner, is bound to pay the other half. It cannot be disputed that Mr Handyside knew that the transfer of the five shares to him was intended to include one-half of Mr Kidd's share or interest in the joint adventure, and that he is now in possession of the profits or proceeds effeiring to that one-half share or interest.

"I do not think that it is necessary or desirable to determine in this action whether the account given by Mr Handyside as to what took place between him and Mr Aitken at the time of the transfer of the shares, and the object of that transfer, is proved, because I do not think that, assuming it to be proved, it would be a relevant defence to the action, seeing that in my view, Mr Aitken had no authority from the trustees to act as he is said to have done. It is obvious, on the other hand, that serious questions may possibly arise between Mr Handyside and Mr Aitken out of that transaction, which are not raised in this action, and which it is not advisable to prejudge."

The Lord Ordinary pronounced this interlocutor:-"Decerns in terms of the conclusions of the action, but under reservation of the claims, if any, of the defender Alexander George Handyside against the defender Thomas Aitken in the premises."

The defenders reclaimed, and argued that the form of judgment was wrong, for no action could lie against Handyside unless breach of trust were established against Aitken. If that were established, Aitken was the party against whom to proceed. The letter was not a document of trust, but prescribed only the method of management of the ship. The only title was the bill of sale. Aitken was therefore vested in ten undistinguishable shares, of which he conveyed five to his partner. He never divested himself of his other five. The conveyance as against his own shares was good, whether good against the trust or not.

Argued for pursuers and respondents-Handyside knew that he was purchasing trust property. The letter was an acknowledgment of trust.

Authority for pursuers and respondents Aberdeen Railway Company v. Blaikie Brothers, 1 Macph. 461.

The Court, without delivering opinions, adhered to the judgment of the Lord Ordinary.

Counsel for Pursuers (Respondents)-Pearson -Low. Agents Tods, Murray, & Jamieson,

W.S.

Counsel for Defenders (Reclaimers)-Trayner -Graham Murray. Agents-Macandrew, Wright, Ellis, & Blyth, W.S.

-Dowager of

6, 1884

Thursday, November 6.

FIRST DIVISIO N. [Bill Chamber. BAIN V. THE COUNTESS-DOWAGER OF

SEAFIELD.

Church Churchyard Mausoleum Burial Grounds (Scotland) Act 1855 (18 and 19 Vict. cap. 68), sec. 11.

Held that the erection of a mausoleum upon private property is not an appropriation of ground for a burial-ground, or an addition to a burial-ground, within the meaning of sec. 11 of the Act 18 and 19 Vict. cap. 68.

Glebe Churchyard, Conveyance of- Dispositive Clause-Personal Bar.

A presbytery, with consent of the parish minister, excambed the site of the church, the churchyard, and a portion of the glebe to the proprietor of the contiguous lands, on the narrative that they were to be conveyed with a view to their being planted and improved. No condition was inserted in the dispositive clause. The minister thereafter sought interdict against proposed operations on the portion of the glebe excambed. Court refused the interdict craved, on the grounds that the conveyance was absolute in its terms, and that whether the conveyance by the presbytery was effectual or not, the minister was barred, in respect of his concurrence in the disposition, from objecting, in the process of interdict, to the validity of the conveyance of the portion of the glebe.

The

Observed, that so far as regarded the churchyard and site of the church the conveyance was quite ineffectual.

By deed of excambion, dated 3d, 5th, and 6th May 1882, entered into between the Earl of Seafield and the Presbytery of Abernethy, with consent and concurrence of the Rev. James Bain, ninister of the parish of Duthil in the presbytery of Abernethy and county of Inverness, on the narrative "that the said Earl of Seafield sometime ago signified to the Reverend James Bain his desire to acquire part of the lands forming the glebe of Duthil, lying to the east and north of the churchyard, and extending to about one acre and one-half of an acre, with a view to plant and improve the said ground, which is in the immediate vicinity of the buryingground of the family of Grant, and the said Reverend James Bain had expressed his readiness, subject to the sanction of the presbytery of the bounds, and on receiving an equivalent therefor, to concede for the object in view the said parcels of ground, and also that the said Earl should at the same time acquire right to the ground occupied by the church and churchyard of the said parish, to the exclusion of the right of the said Reverend James Bain and his successors in the said cure, to graze with cattle or sheep the said churchyard," the said .presbytery, with consent of the said Reverend James Bain, disponed to the Earl of Seafield "All and Whole the following pieces of ground forming parts of the present glebe lands of Duthil, and consisting of

three small parcels, the first forming the triangle between the Grantown and Carr Bridge Road, the road from Duthil Mill to Grantown, and the churchyard, and extending to two roods and two poles or thereby; the second forming a triangle, and lying between the said Grantown and Carr Bridge Road, the north wall of the churchyard, and a straight line between the said road and the churchyard, the said straight line being a continuation of the boundary of the churchyard on the west, and extending to about thirty-two poles; and the third bounded on the west by a continuation of the said straight line last mentioned, extending to the plantation fence, on the south by the said Grantown and Carr Bridge Road, and on the north and east by lands belonging to the said Earl of Seafield, and extending to three roods and thirty-nine poles or thereby; as also the ground forming the churchyard of Duthil, and the site of the parish church thereof, extending to three roods and one pole or thereby; and the land occupied by the Grantown and Carr Bridge Road so far as it traverses the said glebe of Duthil, extending to two roods ten poles or thereby, making in all three acres and four poles imperial measure or thereby, all as delineated and coloured red on the foresaid plan hereto annexed, and signed as relative hereto; together with all right, title, and interest which the said presbytery of Abernethy or the said Reverend James Bain or his successors in the said cure had, have, or any wise might claim or pretend thereto in all time coming, and specially including the right of the minister of the said parish to graze with cattle or sheep the said churchyard, which right is hereby for ever renounced and discharged, the said Earl of Seafield and his foresaids being by acceptance hereof bound to cut the grass in the said churchyard, and to keep it in the order in which it has hitherto been kept by the minister." In return for this disposition the Earl of Seafield disponed to the presbytery a piece of ground extending to three acres and four poles imperial measure or thereby.

This was a note of suspension and interdict at the instance of the Rev. James Bain against the Countess-Dowager of Seafield, who succeeded her son in the estates of Seafield, to have the respondent interdicted from-(2) Erecting or constructing a mausoleum, family vault for burial of the dead, or any such building or erection, in or upon any part of said ground; (3) using or devoting any part or portion of the said ground for extending the area of the churchyard of the parish of Duthil; and (4) devoting the said ground, or any part or portion thereof, to any other use or purpose than that set forth in the said contract of excambion-viz., planting and so improving the same.

The complainer averred that he "only consented to the said excambion on the express condition that the portions of the ground conveyed to the Earl of Seafield should be used solely for planting and for the purpose of improving the amenity of the manse and the privacy of the churchyard;" but that since the respondent succeeded to the Seafield estates she had, "in breach of the arrangement condescended on, resolved to use the ground for building purposes, and was now cutting down trees of old standing and uprooting plants of a few years' standing in the triangle between Grantown Road and the