garden had not come to her by mortis causa disposition, in the sense of the provision of the statute. It was admitted in the Case that the residue of the truster's estate consisted wholly of heritage, and that the right of the daughter to her one-seventh share of the heritable properties which constituted the residue was of a heritable nature. No conveyance of the subjects had been executed by the trustees. Objection repelled, and held that the right of the claimant's wife to the subjects was derived from the trust-disposition and settlement, and had come to her by succession, and that the claimant was therefore entitled to have his name entered in the roll. Main v. Hopper, p. 113.

Election Law. See Burgh.

Elementary Education. See Justicary Cases. Embezzlement. See Theft Justiciary Cases. Employers' Liability. See Master aud Servant. Endorsement of Bill. See Bankruptcy. Entail-Process-Expenses-Expenses Incurred by Curator ad litem to Minor Heir. A petitioner for warrant to disentail is liable to the curator ad litem appointed to a minor heir, for his fee and the expenses necessarily incurred by him in attending to the interest of his ward, and such expenses may, according to the circumstances of the case, include the employment by the curator ad litem of an actuary to value his ward's expectancy. Johnstone, Petitioner, p. 291.

-Sale of Portion of Entailed Estate-Agreements with Third Parties-Protection of Interests -Real Burden-Entail Act 1848 (11 and 12 Vict. c. 36), sec. 25; Entail Act 1882 (45 and 46 Vict. c. 53), secs. 19 to 25. In a petition by an heir of entail in possession for authority to sell a portion of the entailed estate, a railway company who had entered into agreements with the petitioner's predecessor, and who had, in reliance on agreements with him, executed certain works on the lands proposed to be sold, compeared by minute and craved the Court to refuse the prayer of the petition unless the obligations contained in the agreements were made real burdens on the lands. The Court held that it could not, in granting warrant to sell, express any opinion on the true nature of the obligations contained in the agreement founded on, and therefore adjusted, for insertion in the disposition to purchasers, clauses which should give the compearers such protection as they were already entitled to under their agreements. Earl of Eglinton, Petitioner, p. 409.

Consent-Child in utero-Entail Amendment Act 1848 (11 and 12 Vict. cap. 36), sec. 3 -Entail Act 1853 (16 and 17 Vict. cap. 94), sec. 19. An heir in possession presented a petition for disentail, and obtained the consents of the three heirs at the date of the petition and of the consents. Before the disentail was signed a child who was in utero at the time the petition was presented, and who if born before that date would have been second in the succession, was born. Held that this child had no right to the value of

his consent. Campbell v. Campbell, p. 600. Entail-Provisions to Wives and Children-Free

Rent. Terms of a deed of entail which were held to imply, in giving a power to provide for younger children in bonds over the estate for a sum equal to three years' "free_rent," that the "free rent" should be calculated without any deduction in respect of the provision for the widow secured over the estate under the same deed. Lord Lovat v. Fraser and Another, p. 786.

-Entail Amendment Act 1848 (11 and 12 Vict. c. 36), sec. 4-" Such and the like Consents." Sec. 4 of the Entail Amendment Act 1848 provides that an heir of entail in possession of an entailed estate may sell, alienate, dispose, charge with debts or incumbrances, &c., "with such and the like consents" as would enable him to disentail the estate. Held that an heir in possession may avail himself of the provisions of sec. 4 though he is in a position to disentail without consents. Scott Plummer, Petitioner, p. 901.

-See Revenue-Parent and Child. Entry. See Superior and Vassal. Examination of Havers. See Process. Execution pending Appeal. See Process. Executors. See Partnership--Jurisdiction. Exemption. See Valuation.

Expenses. See Process-Entail-Sale.

Expenses against Wife. See Husband and Wife. Expiry. See Partnership.

Explosives. See Justiciary Cases.

Expressio unius exclusio alterius. See Succes

sion.

Factor.

See Master and Servant-Agent and Principal-Reparation.

Failure to Find Caution. See Process.
Failure to Lodge Prints. See Process.
Fee and Liferent. See Succession-Sale.
Fences. See Road.

Feu-duty. See Superior and Vassal.
Fine. See Justiciary Cases.
Fixtures. See Lease.

Foreign-Decree Conform-Proof. An action was brought to enforce the decree of a foreign court awarding to the pursuer a sum as due for salving the defender's vessel. The defence was that the pursuer was not a salvor, but was employed to give his services for a reasonable sum to be agreed on; that there was no proper suit or inquiry in the foreign court, which had no jurisdiction over the defender, whose captain did not know the language of the place, and had never submitted the matter to the foreign court; and that the foreign court proceeded on incompetent evidence, and acted at variance both with the law of Scotland and of the foreign country. The Lord Ordinary allowed a proof of the averment that the captain did not understand the language of the place or agree to submit the question, and there was no proper trial or inquiry. The Court recalled the interlocutor, and allowed the parties a proof of their respective averments. Det Norske Bjergnings og Dykkercompagni v.

M'Laren and Others, p. 861. Foreign. See Jurisdiction. Foreshore. See Property.

Fraud. See Public Company-Insurance-Sale. Fraudulent Bankruptcy. See Justiciary Cases. Free Rent. See Entail.

Friendly Society-Building Society-Liquidation -Effect of Winding-up Order on Position of Members-Power of Liquidators to Call on Advanced Shareholder for Immediate Payment of Advance-Building Societies Act 1874 (37 and 38 Vict. c. 42), sec. 14. Held that “ an advanced shareholder" of a building society who had an advance from the society, repayable by fortnightly instalments during a period of fourteen years, but who did not participate in the profits of the society, was really a debtor of the society, whose contract was to pay his debt by instalments, and could not be called upon by the liquidators, by reason of a winding-up order having been pronounced, to pay up the present value of his future instalments at once. Observations per Lord Justice-Clerk, Lord Craighill, and Lord Kinnear on Brownlie and Others v. Russel, March 9, 1883, 10 R. (H.L.) 17, ante, vol. xx. p. 481. Scottish Property Investment Company Building Society and Liquidators v. Boyd, p. 43.

-Building Society-Building Societies Act 1874 (37 and 38 Vict. c. 42), sec. 13-Powers of Directors-Ultra vires---Right in SecurityBond of Corroboration. The directors of a building society which had lent money on a postponed security, granted to a prior bondholder, in order to induce him to refrain from exposing the subjects to sale under the powers in his bond, a bond of corroboration, by which the society undertook along with the debtor the personal obligation for the debt due under the prior bond. The rules of the society gave no express power to grant such bonds. The society afterwards went into liquidation, and the liquidators sought to reduce the bond on the ground that it was ultra vires of the directors to grant it. Held (aff. judgment of Second Division) that the bond of corroboration fell to be reduced. Small and Others (Shiell's Trustees) v. Liquidators of Scottish Property Investment Company Building Society, p. 139.

-Building Society-Alteration in LawsUltra vires Acquiessence · Arbitration Building Societies Act 1874 (37 and 38 Vict. c. 42), sec. 35. Circumstances in which held (1) that a member of a building society was barred by acquiescence from challenging, on the ground of ultra vires, the legality of a new rule, passed at a special meeting of the society, which provided that a certain deduction should be made in making repayment to withdrawing members; and (2) that the society had not forfeited their right to have a dispute between a member and themselves determined by arbitration because there had been no "application" by the member in the sense of section 35 of the Building Societies Act of 1874, with which they had failed to comply.

Sinclair v. The Mercantile Building Investment Society, p. 820.

The

Friendly Society-Building Society-Winding-up -Effect of Circular by Directors putting Stop to Business--Allocation of Losses--Rights of Borrowing and Non-Borrowing Members. The directors of a benefit building society, which had sustained losses to an extent which absorbed the profits allocated to members of the society, borrowing and non-borrowing, issued on 13th May 1882 a circular to the members which practically brought the business of the society to a close, so that subsequently it only existed for the purposes of liquidation. The society had previously at a general meeting passed a rule that "all payments received from borrowing members due from and after the 11th day of April 1882. . . be attributed, not to their shares, but to account of the sums due under their bonds to the society." A Special Case was presented to the Court in order to determine how the losses were to be allocated amongst the members, and from what point of time it was to be held that they had become chargeable, and ought to be debited to the accounts of the different members. society subsequently went into liquidation, and was allowed, along with their liquidator, to become a party to the case. There were no outside creditors. Held (1) that as borrowing members were, under the rules of the society, entitled to have a share of the profits allocated to their shares, they were bound to share the losses, and that therefore borrowing members who were indebted to the society in any part of their advance on 13th May 1882, were liable to bear a share of the losses of the society in proportion to the sums standing at their credit respectively on their shares at 11th April 1882; (2) that those members whose shares were completed, or who had withdrawn their shares in terms of the rules, before 13th May 1882, became creditors, in a question with other members of the society, for the amount due to them, and were not liable to bear any share of the losses, but were entitled to payment, in the order of their intimations, out of the funds of the society as soon as the liquidator was in funds to make these payments; and (3) that the shares of certain non-borrowing members which were completed according to time, and which, according to the practice of the society, were held as completed although the final payments had not in fact been made by the members, were to be treated as completed. Special Case-Carrick and Others (North British Building Society in Liquidation), p.

833.

Fugitive Offender. See Justiciary Cases.

Gazette Notice. See Bankruptcy. Gift by Client to Agent. See Agent and Client. 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. The 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. Observed, that so far as regarded the churchyard and site of the church the conveyance was quite ineffectual. Bain v. Countess Dowager of Seafield, p. 41. Glebe-Prescription-Ultra vires.

No

In

In 1756 a presbytery resolved to convey to a heritor, at a stipulated rent or feu-duty, the ground forming a glebe which lay in a situation inconvenient for the minister of the parish. deed of conveyance was ever executed. 1884 the minister of the parish and the presbytery sought to vindicate the glebe from the heir of the heritor, who pleaded prescriptive right. Held (assuming the validity of the plea if there had been a deed of conveyance) that a mere resolution of the presbytery to grant a title was not a good ground on which to found prescription. Bain v. Grant, p. 132.

Goods in Transit-Insurance. A deduction allowed (in respect of practice to that effect) from the gross revenue in respect of insurance on goods in transit. Question whether the claim was well founded in principle? North British Railway Co. v. Assessor of Railways and Canals, p. 114.

Goodwill. See Succession.

Greenhouses and Conservatories. See Lease. Grocer's Certificate. See Justiciary Cases. Ground Game-The Ground Game Act 1880 (43 and 44 Vict. cap. 47), sec. 1, sub-sec. 1 (B). Opinions (per Lord Justice-Clerk and Lord Young) that under the Ground Game Act 1880, a visitor who had been invited by the tenant to come and stay for a week with him and shoot the rabbits, was a member of the tenant's household, resident on the lands in his occupation," and duly authorised by him in writing to kill the ground game with firearmis. Stuart v. Murray, p. 87.

66

-Ground Game Act 1880 (43 and 44 Vict. c. 47, sec. 7). Observed that the title to prosecute was also good under the Ground Game Act of 1880, sec. 7. Ferguson v. M'Nab, p.

of the residue after paying debts, &c., and after her death and the majority of the youngest child "to divide the whole residue of my means and estate, and to dispone, convey, make over, and deliver" the same to his children, equally among them, share and share alike, the issue of a predeceasing child taking the parent's share. The trust-deed contained also a power of sale. The truster was survived by his widow and five children. The widow survived him for thirty-four years, and was predeceased by three of the children. The estate consisted both of heritage and moveables, the former being at the date of the widow's death of more than double the value of the latter. After the widow's death a question arose as to whether the quality of the beneficiaries' interest in the heritable estate was heritable or moveable. Held (diss. Lord Justice-Clerk and Lord Young) that a sale of the heritage was not indispensable to the execution of the trust," and that conversion was not operated. Sheppard's Trustee v. Sheppard and Others, p. 801.

Heritable and Moveable. See Succession-Parent and Child-Valuation Cases. Heritable Bond. See Bankruptcy.

Heritage. See Sale.

Heritor's Obligation. See Church.
Holograph. See Writ-Succession.
Horse. See Sale.

Hotel. See Justiciary Cases.

Husband and Wife-Divorce-Process-Expenses against Wife having Separate Estate. Fræbel v. Fræbel and Liddell, p. 22.

of

-Divorce-Divorce for Desertion-Adultery Pursuer-Adherence-Conjugal Rights (Scotland) Amendment Act 1861 (24 and 25 Vict. c. 86), sec. 11-Statute 1573, c. 55. In an un

defended action of divorce for desertion at the instance of a wife against her husband, which action was raised in 1884, it was proved that the defender deserted the pursuer in 1864. During the proof the pursuer admitted that she had a bastard child in 1871. Held that the wife's adultery was a sufficient cause for the non-adherence of the husband, and therefore that the action should be dismissed. Conjugal Rights (Scotland) Amendment Act 1861, sec. 11, has not changed the law as to divorce for desertion, but has only effected an alteration in the forms of procedure. Observations on Muir v. Muir, 19th July 1879, 6 R. 1253, and Winchcombe v. Winchcombe, 26th 1881, 8 R. 726. Auld v. Auld, p. 26.

The

a

Delivery-Husband Custodian of his Wife's Writs-Donation. A husband executed settlement making provisions for his wife, and she signed the settlement in token that she accepted it in lieu of all legal claims against his estate. After his death there was found in his repositories a cash-book containing an account headed, "Note of Sums due by me" to his wife and family. The entries therein corresponded with the amount of the rents of a property which belonged to her, and which he had managed for her before the marriage, and continued to manage after it. The exist

ence of this account had been known to the wife before her husband's death. Held that her right to the sums contained in the account was not affected by her acceptance of the settlement as in full of legal claims. Smith v. Smith's Trustees, p. 145. Husband and Wife-Constitution of MarriageEvidence of Irregular Marriage. In an action for declarator of the constitution of an irregular marriage, the evidence of the alleged constitution of marriage is to be considered with reference to the whole conduct of the parties at the time of and subsequent to the alleged marriage as tending to show what was their real intention and understanding. Maloy v. Macadam and Others, p. 243.

-Reduction of Marriage-Contract on the ground of Minority and Lesion. Held that in considering whether a wife could reduce her marriage-contract on the ground that she was a minor when it was executed, and the provisions of it were to her enorm lesion, her husband's estate at the date of the marriage must be looked to, and not his estate at the dissolution of the marriage by his death. Cooper v. Cooper's Trustees, p. 314.

-Constitution of Marriage-Nullity of Marriage-Impotency. A man of 49 married a woman of 20, and they cohabited for twenty months, occupying the same bed nearly all that time, and then separated finally. During their cohabitation no sexual intercourse took place, though the man had unsuccessfully attempted it during the first two months, and then desisted, owing, as he alleged, to the wife's coldness and lack of affection for him. In an action of declarator of nullity of marriage at her instance, on the ground of his impotency, it was proved that there was no malformation or sign of ill-health in him. No evidence from a physical examination of the wife was available in the circumstances of the case. The House (aff. judgment of Second Division) held that on a consideration of the proof the whole facts and circumstances showed that the non-consummation of the marriage was due to impotency on the part of the man, and gave decree of nullity of marriage accordingly. A B v. C B, p. 461.

-Personal Bar - Incontinence of Spouse seeking Remedy. The action before the House was not raised till after the wife had given given birth to an illegitimate child, and had been served with an action of divorce, to which it was raised as an answer. Held that she was not barred from raising the action, and that there is no doctrine of "sincerity requiring it to be shewn that the only motive for raising the action is the existence of the impotency complained of. A B v. C B, p. 461.

Nullity of Marriage-Presumption-Three Years Cohabitation. The doctrine of the Canon law that impotency will be presumed from non-consummation during a cohabitatation of three years has not been followed in Scotland. Assuming it to be applicable, it is merely presumptive evidence, and other

evidence may be adduced and founded on where there has not been such cohabitation as to raise it. A B v. C B, p. 461. Husband and Wife-Divorce-Adultery-Jurisdiction. A woman raised an action of divorce against her husband on the ground of adultery. The parties were married in Scotland, cohabited there, and a child was born. Less than two years after the marriage she left him on account of ill-treatment. Her domicile of origin was Scottish. There was no proof of the defender's domicile of origin, but some hearsay evidence that he came from England to Scotland as a student, and that his mother lived in England. It was proved that he was living in England in adultery at the date of the action. The summons was served upon him personally. He lodged no defences, but appeared by counsel at the proof and contested the question of adultery, but took no objection to the jurisdiction. The Court (rev. judgment of Lord Lee) sustained the jurisdiction and granted decree of divorce. Watts v. Watts, p. 570.

-See Trust-Proof.

Hypothec. See Landlord and Tenant.

Identification. See Proof.

Imprisonment. See Justiciary Cases.
Impotency. See Husband and Wife.
Incapacity of Partner. See Partnership.
Income Tax. See Revenue.
Incontinence of Spouse. See Husband and Wife.
Indefinite Payment. See Bankruptcy.
Indictment-Relevancy-Specification.

A pri

soner was charged with theft or breach of trust or embezzlement, in so far as he, having as sub-factor received from the tenants of certain heritable subjects in payment of rents sums of money amounting to" a certain specified total sum, and it being his duty, and according to his trust and the instructions of the factor by whom he had been appointed, to pay the rents regularly to him, and in no event to appropriate them to his own use, he did steal the specified total sum, or otherwise did embezzle it. It was objected that the charge was irrelevantly libelled either as one of theft or embezzlement, in respect that there was no specification of the particular sums received by the panel, or of the persons from whom they were received. Objection sustained. H.M. Advocate v. Fleming, p. 435. -See Justiciary Cases. Inhabited-House-Duty. See Revenue. Inhibition. See Teinds.

Injunction. See Jurisdiction. Innuendo. See Reparation. Insanity of Partner. See Partnership. Instalment. See Sale. 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. Brown v. The National Fire Insurance Company, p. 679.

Insurance. See Goods in Transit-Ship.
Invecta et illata. See Landlord and Tenant.
Investment. See Trust.

Interdict, Unjustifiable Application for. See
Reparation.

Interdict-Publication-Private Correspondence -Publication of Judicial Proceedings.

A

society incorporated to aid in preserving the purity of a breed of horses proposed to publish and circulate among its members for their information a report of proceedings taken before a Court in America for the extradition of a party charged with forging false pedigrees to be inserted in their studbook. In these proceedings letters had been read which were the property of a person in Scotland. These letters with the other proceedings had been reported in the American newspapers at the time. He sought interdict against the publication of the letters and the report. Held that the letters as well as the proceedings having been published already in reports of what took place in a public court, and it not being averred that the report complained of was unfair or inaccurate, interdict could not be granted. Observed that the publication of the report along with an averment of malice might give rise to an action of damages. Riddell v. The Clydesdale Horse Society and Others, p. 657.

Trespass-Deer-Forest-Lamb Straying on Unfenced Ground. A pet lamb belonging to a cottar who lived close to a public road which passed through a large deer-forest, and who had no right to graze any animal therein, strayed on various occasions from the roadside, which was not fenced, on to the forest. The Court refused to grant the lessee of the forest interdict against the cottar grazing any animal upon the forest, on the ground that he had not shown that he had suffered any appreciable injury. Winans v. Macrae, p. 692,

-See_Arbiter - Property —— Jurisdiction · Trust-Reparation. Interest--Interest on Open Account for Professional Charges and Outlays-Period from which Interest runs. The outlays in a law-agent's account being of the nature of loans, interest runs on them from their advance, but interest on his open account for services performed, or on a tradesman's open account, does not run until at least a demand for payment has been made. Opinion per Lord Fraser, that interest does not run on an open account till after a judicial demand for payment, Blair's Executrices v. Payne and Others, p. 54. Irregular Marriage. See Husband and Wife. Irritancy ob non solutum canonem. See Superior and Vassal. Issue-Veritas--Justification. A newspaper having published an anonymous letter which supported an innuendo that the person to whom it referred had acted corruptly for his own interest in the pretended exercise of his public position, proposed in an action of damages by him to take a counter issue whether the statement in the letter were true.

Joint and Several Liability. See Lease. Joint Proprietor. See County Franchise-Succession.

Judicial Factor-Cautioner-Public Company— Company incorporated by Act of Parliament. A judicial factor proposed as cautioner a public company registered with limited liability under the Companies Acts, and carrying on guarantee business. The Accountant of Court had some months previously reported that the company was in a good financial position, and it was stated that there was no material alteration in its position. Held (tollowing M'Kinnon, March 8, 1884, 21 Scot. Law Rep. 476, 11 R. 676) that the company might be accepted as cautioner. Observed (1) that in all future applications of this kind the Clerk of Court would require to satisfy himself that the financial position of the company was satisfactory; (2) that only the bonds of associations subject to the jurisdiction of the Court of Session would be accepted. M'Kinnon, Petitioner, p. 144.

See Trust-Partnership. Judicial Reference. See Arbiter. Jurisdiction-Foreign-Court of Chancery-Injunction against Domiciled Scotsman and Order for Costs-Interdict-Preventive Jurisdiction. A trader in England applied to the Court of Chancery for an injunction to prevent a trader domiciled and carrying on business in Scotland, circulating in England and Wales catalogues which he alleged to be pirated from his. The writ was served in Scotland, by leave of the Court of Chancery, under the rules of Court made in pursuance of the Judicature Act 1875, and no appearance having been entered a decree of injunction restraining the publication complained of within the territory of the Court of Chancery was pronounced with costs. An action having been brought in the Court of Session to recover these costs, the defender pleaded that the proceedings in the Court of Chancery were of no effect, since he was not subject to the jurisdiction thereof. Held that the Court of Chancery had jurisdiction to prevent a wrong being done within its own territory; therefore that this plea ought to be repelled. Day and Others v. Bennie, p. 413.

-Appeal-Competency of Review-Clause Excluding Review-Tweed Fisheries Act 1857 (20 and 21 Vict. cap. cxlviii.) Where the sent

ence of the Inferior Court is ex facie illegal, the High Court will grant remedy by suspension notwithstanding a provision in the statute applicable to the offence that review of the conviction shall only be competent in a certain Court and in a certain manner. Walker and Others v. Rodger, p. 567.

-Sheriff— Railway Company—Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. cap. 70), sec. 46-Carrying on Business in Sheriffdom.