hand, retained the whole of the rest of the copartnery property, and as matter of form, to make it complete, got it transferred to him by the deed mentioned in the case. Now, that, I agree with your Lordship, is not a conveyance on sale, but is a transfer of a different kind altogether from a conveyance on sale, and in that view I think the duty payable must be fixed accordingly. LORD SHAND-I am of the same opinion as your Lordships. The deed in question narrates that the parties have agreed to a dissolution of the firm. If it had further gone on to say that in view of that dissolution it had been arranged between the parties that the partnership property should be divided, and if I may further suppose that the amount of the estate was precisely £16,000, and it was also so stated, and that £8000 of the partnership property consisted of a sum lent upon a heritable property, for which a bond and disposition in security had been granted, and it had been arranged that that bond should be given to one of the partners, while the remaining estates of the firm should go to the other-I cannot doubt that in that state of circumstances the case would obviously have been one of partition or division of the company's estates, and not a sale by one partner to another of his share of the company's property. Now, although this case is not precisely what I have figured, it is certainly so in substance. The company's property does not happen to amount precisely to the double of the heritable estate, £16,000; it amounts to about £17,800; but the difference which requires that one partner shall, besides the bond over a heritable estate for £8000, receive £981 in cash, does not appear to me to make any difference on the result. As your Lordship has observed, it is scarcely conceivable that in the division of company assets there will not be a money payment to some extent by one partner to another. accordingly it appears that besides the heritable property amounting to £8000, £931 is paid in cash out of the company's assets to one of the partners, the other partner remaining in possession of the other half. It appears to me that that is in substance nothing else but a division of partnership property, and I think it may be tested in this way quite distinctly, that there is a clear withdrawal from the partnership of that which was partnership property. The company while it was going on was possessed of the bond for £8000, and a number of other assets, but the bond which was company property no longer remains so in the person of the remaining partner. It is taken out of the assets by a division of the copartnership property. And so I have no difficulty in holding this to be a case of division of partnership property, and not a case in which one partner is purchasing the other partner's interest in the concern. The English cases to which reference has been made are clearly distinguishable in that respect. In these cases the remaining partner who continued to carry on the business practically retained the whole assets of the company, and if you have a case in which a partner is to go on with the business, retains the whole assets of the company, and merely gives an obligation to the outgoing partner to pay him a certain sum by instalments upon the footing And that he is to go out, or merely gives a mortgage or bond over part of the company's estates, the result of that plainly is, that the company's estates remaining the same, the partner remaining in the business is buying out the partner who goes out of it, and it may fairly be represented that that is the case of one partner purchasing the interest of the other. As was said in the case of Christie, I think that may be represented as practically the same thing as if a third party, altogether unconnected with the firm had purchased the outgoing partner's interest by undertaking to pay him so much for that interest, leaving the assets of the company the same as they had been before. The present is not a case in which the assets of the company are so left. The assets are divided, and it appears to me, therefore, that this is clearly a case of partition, and that it is quite distinguishable from the English authorities which have been referred to. LORD ADAM-I concur, and have nothing to add. The determination of the Court was: "Having heard counsel for the parties, Reverse the determination of the Commissioners: Assess the duty of ten shillings on the assignation mentioned in the foregoing Case, being the duty chargeable on a conveyance or transfer other than a conveyance or transfer on a sale, and ordain the Commissioners of Inland Revenue to repay to the appellant the sum of £44, 5s. Find them liable in expenses," &c. Counsel for MacLeod-Rhind. Agent-R. P. Stevenson, S.S.C. Counsel for Inland Revenue-Sol.-Gen. Asher, Q.C. Moncreiff - Lorimer. · David Agent Crole, Solicitor of Inland Revenue. Tuesday, June 2. FIRST DIVISION. [Sheriff of Lanarkshire. JACK V. NORTH BRITISH RAILWAY COMPANY. Jurisdiction Sheriff-Railway Company · Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. cap. 70), sec. 46-Carrying on Business in Sheriffdom. Held that under the provisions of the 46th section of the Sheriff Courts (Scotland) Act 1876, a railway company is subject to the jurisdiction of the Sheriff of a county in which they have one of their principal places of business, though not the county in which they have their domicile, or in which the cause of action has arisen. This was an action at the instance of Mrs Mary Gray Wilson or Jack, 13 Royal Buildings, Uddingston, widow of the deceased John Jack, commercial traveller, Drymen, against the North British Railway Company, concluding for damages for the death of her husband who had been killed at the defenders' station at Balloch through the alleged fault of the defenders. The action was raised in the Sheriff Court of Lanarkshire at Glasgow, where the defenders have an important but not their chief office. The station at Balloch is in the county of Dumbarton. The defenders pleaded no jurisdiction. The Sheriff Substitute (ERSKINE MURRAY) repelled the plea of no jurisdiction, and allowed a proof. The pursuer appealed to the Court of Session under the 40th section of the Judicature Act for jury trial. Before the case was argued the appellant made the following addition to the condescendence"The North British Railway Company is incorporated by Act of Parliament, and carries on business, and has a place of business, at No. 14 West George Street, Glasgow. The said place of business is one of the defenders' principal offices, and they were duly cited thereat." She also added the following plea-in-law-"(3) The defenders' plea of no jurisdiction ought to be repelled, in respect of the provisions of sections 3 and 46 of the Sheriff Court Act 1876 (39 and 40 Vict. cap. 70)." The appellant admitted that the action would have been incompetent for want of jurisdiction at common law. She argued that it was competent under the 46th section of the Sheriff Court (Scotland) Act 1876, (quoted in the opinion of the Lord President, infra). There was nothing in the terms of the section to make it inapplicable to a railway company. Personal citation on the secretary of a railway company is good-Stewart v. Scottish Midland Junction Railway Company, March 3, 1825, 14 D. 594. Although it was conceded that the domicile of the defenders was not in Glasgow, yet the defenders had there one of their principal places of business. The respondents argued-The section founded on could not have been intended to affect the common law. It was admitted that at common law there was jurisdiction either in the county in which was the locus delicti, or where the company had its domicile, but neither of these was the county of Lanark, and the result of the appellant's argument would be to give jurisdiction in respect of every place of business along the whole line. From the terms of the section it was evident that it was not intended to apply to an incorporation like a railway company. Such an incorporation could not be personally cited. Authorities-Aberdeen Railway Company v. Ferrier, January 28, 1854, 16 D. 422; Edward v. Inverness and Aberdeen Junction Railway Company, 4 Irv. 185. At advising LORD PRESIDENT-This is an action of damages at the instance of the widow of a man who was killed at or near Balloch Station in the county of Dumbarton, and the action is brought in the Sheriff Court of Lanarkshire at Glasgow. An objection has been taken by the defenders that the Sheriff there has no jurisdiction to try this question, as the locus of the delict or quasi delict is not within his jurisdiction, and it is also conceded that the principal domicile of the defenders is not within the county of Lanark. The question has been narrowed by the concession of the appellant to a consideration of the 46th section of The Sheriff Courts (Scotland) Jack June 2, 1885 Jack v. N. B. Rwy Act 1876, which she maintains confers jurisdiction on the Sheriff. Now, keeping in view that under the statute (sec. 3) the term "person" includes not only individual, but also company, corporation, and firm, the provision of section 46 is this-"A person carrying on a trade or business, and having a place of business within a county, shall be subject to the jurisdiction of the Sheriff thereof in any action, notwithstanding that he has his domicile in another county, provided he shall be cited to appear in such action either personally or at his place of business." I understand it to be conceded that the railway company has a place of business within Lanarkshire, and that it is one of their principal places where they carry on business. It appears to me very difficult to say that the words of the statute do not precisely apply to such a case as we have here. railway company are carrying on business, and have a place of business in Lanarkshire, and all that is necessary in order to bring the company before the Sheriff is that they shall be cited personally or at their place of business. The It has been contended by the company that if the 46th section receives this full and extensive effect an action might be brought against them in almost every county in Scotland, though the cause of action has arisen in another county. But I think that when the statute speaks of a corporation having its place of business in a county, that provision must be read in a reasonable way, and in order to ascertain the purpose of the statute we may look to other statutes dealing with the subject. We have various statutes regulating the way in which railway companies must be cited; for example, section 137 of the Companies Clauses (Scotland) Act 1845 provides that "Any summons or notice, or any writ or other proceeding at law or in equity, requiring to be served upon the company, may be served by the same being left at, or transmitted through the post directed to, the principal office of the company, or one of their principal offices where there shall be more than one, or being given personally to the secretary, or in case there be no secretary, then by being given to any one director of the company." Again, the Railway Clauses (Scotland) Act 1845, sec. 130, provides that "Any summons or order, or any writ or other proceeding at law requiring to be served upon the company, may be served by the same being left at, or transmitted through the post directed to, the principal office of the company, or one of their principal offices where there shall be more than one, or being given personally to the secretary, or in case there shall be no secretary, then by being given to any one director of the company." It appears to me that these provisions throw a good deal of light on the question with which we are here concerned. When it is affirmed that a company like this shall be subject to the jurisdiction of the Sheriff of a county if they have a place of business in the county, I do not think that can be read as meaning that they shall be subject to the jurisdiction if they have a roadside station in the county, or even have a station in a larger sense. Therefore I think that in order to there being jurisdiction because the defenders have a station in the county, the station must be one in which an important part of the business of the company . N. B. Rwy 2, 1885 is carried on, and that it was not the intention of the Legislature that the meaning of the expression should be further extended. If the section is so confined in its application, I think it may be very useful and convenient. As for the contention that by the term "person" the framers of section 46 had in contemplation merely persons who are capable of being personally served, I do not think that the section is to be so limited. Therefore, in my view, either personal service or service at the place of business would be sufficient compliance with the terms of the section. But even if there were more in the argument, I think it admits of another answer, for I do not doubt that an incorporated company is capable of being personally cited. That was decided in the case of Stewart V. Scottish Midland Junction Railway Company, 14 D. 594. In that case the only warrant was to cite the defenders personally or at their dwellinghouse, and the citation was by delivery to the secretary personally, which is just the mode recognised by the Companies Clauses Act and the Railway Clauses Act, and the citation was held to be good. Therefore I come to the conclusion that if this company has a principal place of business in Lanarkshire then they can be personally served in Lanarkshire. LORD SHAND-I am of the same opinion, and in the present instance I think that the case admits of very easy decision. It is conceded that the defenders have a principal place of business in Lanarkshire, and I have no doubt that in such a case the 46th section of the statute clearly applies. Possibly we may hereafter have to decide a case as to a place of business of less importance, and with regard to that I should wish to reserve my opinion, for one can see that there is room for maintaining that the section applies to stations of less importance where the company is carrying on business. But there can be no doubt that it was the intention of the Legislature that the statute should apply to this case. I do not think there is any difficulty with regard to the provision that the defender shall be cited personally. That just means that if you are dealing with a person, then the citation is to be personal, and if you are dealing with a company, then the citation is to be at the company's place of business, or personally on their secretary, or one of the directors. No doubt"personal" citation is more directly applicable to persons, but it does not follow that companies are to be struck out of the section, because when one turns to the interpretation it is seen that the term "person" includes " pany, corporation, and firm.” LORD MURE and LORD ADAM concurred. com The Court repelled the objection to the jurisdiction of the Sheriff, and ordered issues. Counsel for Pursuer (Appellant)-Ure. Agents -Dove & Lockhart, S.S. C. Counsel for Defenders (Respondents)-Lord Advocate Balfour, Q. C.-Graham Murray. Agents -Millar, Robson, & Innes, S.S.C. Tuesday, June 2. FIRST DIVISION. [Lord Kinnear, Ordinary. BROWN V. THE NATIONAL FIRE INSURANCE COMPANY. Insurance-Defence of Fraud-Relevancy-Specification-Issue. Averments of fraud on the part of a person assured, which, in an action by him on his policy, were held relevant to support a counter-issue of fraud on the part of the assurance company. Forms of issues adjusted for the trial of the cause. William G. Brown, hotel-keeper, Uddingston, Lanarkshire,raised this action against the National Fire Insurance Corporation, Limited, concluding for payment of £1602, 18s., or otherwise that it ought and should be found that under the policy of insurance over his furniture and other effects the defenders were bound to concur in referring to arbitration the amount of damage occasioned thereto by a fire in his hotel at Baillieston in July 1884. The pursuer averred (Cond. 2)—"On or about the 3rd day of May 1882 the defenders granted to pursuer a policy of insurance against loss by fire to the amount of £1850 over the following property, then situated in the premises occupied by pursuer in Baillieston as a hotel, &c., viz. 1. On household goods, linen, wearing apparel, printed books, plate-glass, and earthenware, including looking-glasses, jewels, watches, and trinkets, musical instruments and printed music, pictures, prints, and drawings, no one picture, print, or drawing, in case of loss, to be valued at more than £10 in the insured's hotel, situated as above .£1000 0 0 2. On stock-in-trade therein, includ- 3. On upfittings and utensils, the 5. On carriages in the coach-house 450 0 0 150 0 0 125 0 0 125 0 0 Amounting in all to the sum of . £1850 0 0" He alleged that the premiums were duly paid, and that the policy was in force on 15th July 1884; that a fire occurred in the premises on that date, by which the buildings and their contents were entirely destroyed, two horses and the carriages and some harness being alone saved; that the value of the furniture, &c., was greatly in excess of the amount insured under the policy, but that the sums claimed were restricted to the amount insured. The sum sued for was thus made up :On household goods On stock-in-trade On upfittings and utensils On harness £1000 0 0 450 0 0 150 0 0 2 18 0 0 £1602 18 The pursuer averred-"(Cond. 5) In terms of the printed conditions of said policy the pursuer gave a due notice to the defenders, and delivered to them a particular account of the several articles destroyed by said fire, with the estimated value of each article, together with all the documents and vouchers in his possession or procurable, and with full explanations and particulars of the goods, &c., destroyed, and he offered further to establish by proof the value of the said goods, &c. He also furnished the defenders with a statutory declaration of the truth of the account. furnished by him. With reference to defenders' statement, it is explained that the defenders have declined to accept pursuer's offer of parole proof, and that the pursuer has given to defenders all other proofs, and all vouchers and explanations as can reasonably be required by them. Reference is made to next article. The defenders' allegation that the pursuer's claim is false and fraudulent, or wilfully and fraudulently overstated, is denied, and the defenders are called upon forthwith to withdraw the same." "(Cond. 6) Shortly after the said fire the defenders, under their powers to that effect contained in said policy, took possession of the premises, including the stables and salvage. They further, however, most unreasonably and unwarrantably stopped the business of the posting establishment carried on by pursuer, and refused to allow him to interfere with or carry on the same. Further, having obtained access to and possession of the premises as before mentioned, they most unwarrantably and unjustifiably refused to cede possession of the same to the pursuer ; and, on the contrary, in spite of the warnings and protests of the pursuer, they retained possession until 5th November 1884, when they gave pursuer intimation that they did not intend longer to retain possession. The pursuer was thus wholly prevented from resuming possession of the premises, and having the same rebuilt, and the business therein resumed. The pursuers' claim for damages thereby caused is specially reserved." The pursuer further averred that the defenders had not paid any part of his losses; that in the course of much correspondence and of many meetings he had furnished all the information as to the value, &c., of the furniture in his power, but that all vouchers, receipts, and accounts had been destroyed in the fire. He alleged that he was ready, and had frequently offered, to refer the matters in dispute to arbitration. The defenders averred-" (Stat. 1) By the 5th article of the conditions of the said policy it is provided that on the occurrence of any loss by fire to the property thereby insured, the insured is forthwith to give notice in writing thereof to the defenders, and within fifteen days to deliver to them a particular account of the articles so damaged or destroyed, and in support thereof to give all such vouchers, proofs, and explanations, and other evidence as may be reasonably required by or on behalf of the corporation, together with (if required) a statutory declaration of the truth of the account, and in default thereof, no claim in respect of such loss or damage shall be payable or sustainable unless and until such notice, account, proofs, and explanations, or evidence respectively shall have been given and produced, and such statutory declaration (if required) shall have been made.' The 6th article of said conditions specially provides that if the claim be in any respect fraudulent, or if any false statutory declaration be made or used in support thereof, or if the fire be occasioned by or through the procurement or connivance of the insured, all benefit under this policy is forfeited." They also averred that the claim the pursuer sent in a few days after the fire stated his loss at £2252, 14s. 6d., including "Money, £141, 7s. 6d.," which was not covered by the policy in question, that this was largely in excess of the sum insured, and that they, in terms of the fifth condition of the policy, called upon the pursuer to make a statutory declaration of the truth of the same, which he did on 5th August thereafter, and which statutory declaration was produced; that on receipt of the declaration they (defenders) made out a list of the pictures enumerated by the pursuer in his said claim, and required him to furnish them with the names of the artists and subjects thereof, as well as the date and place of purchase by him, but he had paid no attention to this request. "The defenders further, through their fire assessor, Mr Langley, have repeatedly required the pursuer to furnish them with any vouchers, proofs, explanations, and other evidence of the existence and value of the other articles of property for which he claims, but have been unable to obtain such from him, except to a very small extent, and for very small amounts. With regard to the amount claimed for furniture, he has informed them that he bought from the proprietor of the Commercial Hotel, Baillieston, when he took it over from its then proprietor in 1882, furniture to the value of £138, and from Mr Quinton the furniture of his house in Uddingston for £130, and that he had also at that time furniture of his own which was then insured for £200-amounting only to a sum of £468. With respect to the item stock-in-trade,' while the pursuer has furnished vouchers for goods purchased by him for twelve months previons to the fire, he has not produced any for goods sold, and he has produced no vouchers or evidence of any kind with regard to the pictures for which he claims. On his policy over the buildings with the North British and Mercantile Insurance Company the pursuer accepted the Company's offer to reinstate, and has since, accordingly, received the sum of £650 as for reinstatement. (Stat. 4) The defenders believe and aver that the said claim is largely in excess of the real value of the articles destroyed, and that the said claim as made is false and fraudulent, or at least wilfully and fraudulently over-stated. In any event, the pursuer is bound to furnish the defenders with reasonable evidence of the existence and value of the articles in respect of which he claims under the policy, in terms of the conditions thereof, and as a condition-precedent to his recovering thereunder." The pursuer pleaded that he was entitled to decree for the sum concluded for under his policy, or otherwise that the defenders were bound to enter into a reference of terms of the policy of insurance. The defenders pleaded—“(1) The pursuer having failed to fulfil and implement the conditions of his policy, is not entitled to recover. (2) The pursuer having made a false and fraudulent claim, and made and used a false statutory declar Fire Insur 2, ation in support thereof upon the defenders in respect of the policy founded on, has forfeited all benefit thereunder. (3) The pursuer not having sustained the loss libelled, is not entitled to recover the sum sued for, and the defenders are entitled to absolvitor, with expenses. The following was the clause of arbitration annexed to the policy :-"Where the corporation do not claim to avoid their liability under the policy on the ground of fraud, but a difference shall at any time arise between the corporation and the insured or any claimant under this policy, as to the amount of any loss or damage by fire, or as to the fulfilment of any of the conditions herein set forth, or as to any question, matter, or thing concerning or arising out of this insurance, every such difference, as and when the same arises, shall be referred to the arbitration and decision of two indifferent persons, one to be chosen by the party claiming and the other by the corporation, or in case of disagreement between them, then of an umpire to be chosen by the arbitrators before entering on the reference, and the costs of the reference shall be in the discretion of the arbitrators or umpire as the case may be, who shall award by whom and in what manner the same shall be paid, and the decision of the arbitrators or umpire, as the case may be, shall be final and binding on all parties, and this condition shall be deemed and taken to be an agreement to refer as aforesaid; and it is hereby expressly declared to be a condition of the making of this policy and part of the contract between the corporation and the insured that where the corporation do not claim to avoid their liability under the policy on the ground of fraud as aforesaid, the party insured or claimant shall not be entitled to commence or maintain any action on this policy till the amount due to the insared shall have been awarded as herein before provided, and then only for the sum so awarded, and the obtaining of such award shall be a condition-precedent to the commencement of any action upon the policy." The defenders obtained leave from the Lord Ordinary to add to their statement of facts after the words "articles destroyed," in article 4 quoted supra, "and also that it includes a considerable number of articles which were not in fact on the premises at the time of the fire;" and after the words "wilfully and fraudulently overstated," "to the knowledge of the pursuer. They also aver that the said statutory declaration, made and used by the pursuer in support thereof, was in material respects false, in the knowledge of the pursuer. The Lord Ordinary adjusted the following issue and counter issues-Pursuer's Issue :-"It being admitted that the defender, by a policy dated 3d May 1882 which was in force in July 1884, insured the household goods, fittings, and utensils, stock-in-trade, horses, harness, carriages, and others situated in the hotel and relative offices in Bailliestown, occupied by the pursuer, to the extent of £1850 against loss by fire; and it being further admitted that on or about 15th July 1884 a fire took place in said hotel and offices, in consequence whereof the household goods, stock-in-trade, fittings, utensils, and harness therein, were destroyed or damaged in whole or in part-Whether the defenders are debted to the pursuer under the said policy in in the sum of £1602, 18s., or any part thereof, for loss and damage sustained by the pursuer in consequence of the said fire ?" Counter Issues:-"It being admitted that the policy founded upon in the action was granted subject to the following condition, viz., 'If the claim be in any respect fraudulent, or if any false statutory declaration be made or used in support thereof, all benefit under this policy is forfeited'-(1) Whether the claim made by the pursuer for loss under the said policy is in any respect fraudulent? (2) Whether the statutory declaration made and used by the pursuer in support of his said claim was false within the knowledge of the pursuer?" The pursuer reclaimed, and argued-The defence was irrelevant, being barred by the arbitration clause in the policy; it was also bad from want of specification. There being no relevant averment of frand on record the counter issues could not be allowed. The defenders argued-The pursuer had not given them the information required in terms of the policy with regard to the particulars of his loss; they were unable to specify what particular items in the pursuer's claim were not actually on the premises, and what were fraudulently overvalued; they were entitled on the 6th condition of the policy [above quoted] to a general issue of fraud; the counter issue proposed was similar to that proposed and approved by the Court in the case of M'Kirdy v. North British Insurance Company, Jan. 28, 1858, 20 D. 463. They also referred to the case of Campbell v. Aberdeen Fire and Life Assurance Company, June 12, 1841, 3 D. 1010. The Court having expressed an opinion that the defenders ought to make their allegations of fraud much more specific, the defenders proposed to make the following addition to their statement of facts:-"The defenders believe and aver that the pursuer paid to Mr Quinton for the furniture purchased from him only £30 or £40; and the articles enumerated in the pursuer's claim (exclusive of pictures and photographs), which they have been able to identify as included in the said purchase, are valued in the said claim at over £100, and are thus grossly and, as the defenders believe and aver, fraudulently over-estimated. The defenders have been unable to identify in the said claim all the articles of furniture and fittings included in the purchase by the pursuer from the former proprietor of the Commercial Hotel. The articles which they have succeeded in identifying (exclusive of show-cards and pictures) are valued in the said claim at about £125, 9s., which the defenders believe to be greatly in excess of their real value. The defenders have further ascertained and believe that the said claim contains other and various items which were not in fact on the pursuer's premises at the date of the fire. So far as the defenders have been able to identify these, they amount in value, as stated in the said claim (but exclusive of pictures as before), to the sum of at least £200. The aggregate value of the pictures claimed by the pursuer is £331, 12s. 6d. The defenders have made every inquiry as to the actual value of the pursuer's pictures, and have failed to find the slightest evidence that he possessed anything like such an amount of property in pictures, or indeed that he possessed any valu |