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. Jack v. North British Railway Company, p. 677. Jurisdiction-Foreign-Executor-Trust Trust Funds situated partly in England and partly in Scotland-Confirmation and Probate Act_1858 (21 and 22 Vict. c. 56), secs. 9 and 12-Treaty of Union 1706 (6 Anne, c. 11), article 19. Ă domiciled Scotsman died leaving a trust-disposition and settlement executed in Scottish form disposing of his personal property, which was of great amount, and was situated in Scotland, except about one-sixteenth which was in England. He appointed six trustees and executors, all Scotsmen, and four of whom were domiciled in Scotland and two in England. None of the purposes of the trust fell to be performed out of Scotland. The trustees gave up an inventory and obtained from the Commissary of the county in which the deceased died domiciled decree of confirmation under sec. 9 of the Confirmation and Probate Act 1858, and had this confirmation sealed with the seal of the English Court of Probate under section 12 of the same Act. After the English assets, except a very small part thereof, had been transmitted to Scotland, an administration suit was commenced in the Chancery Division of the High Court of Justice in England against the trustees (three of whom were cited in England and three in Scotland) at the instance of an infant residing in England who was one of the residuary legatees, suing by his next friend. The trustees appeared and objected to the estate being administered in England, but ultimately the High Court of Justice and the House of Lords on appeal decided that an administration order should be made, and that complete accounts and inquiries should be taken and made in England. Thereafter the Court of Session, in an action at the instance of the residuary legatees (other than the infant plaintiff) against the trustees, granted a decree of declarator that the trustees were bound to administer the estate according to the law of Scotland, and subject to the jurisdiction of the Scottish Courts alone, and were not entitled to place the funds in the hands of or render accounts to any Court furth of Scotland, and also sequestrated the estate and appointed a judicial factor, suspending the action of the trustees in the meantime, and interdicted the trustees, until the estate should be fully vested in the judicial factor, removing the estate or any part thereof, or any writs belonging thereto, out of the jurisdiction of the Scottish Courts. Held that the declaratory portion of the judgment ought to be reversed, because (1) the trust-disposition and settlement did not contemplate that the investment and administration of the estate must necessarily be in Scotland; (2) while the succession to the estate of a person deceased must be according to the law of his domicile, the forum in which the rights resulting therefrom must be vindicated is not necessarily the Court of that domicile (the dictum of Lord Westbury to that effect in Enohin v. Wylie, 10 Clark, House of Lords Cases, 1, being disapproved); (3) the decisions of the Scottish Courts show that the Courts of Scotland will when necessary sustain their jurisdiction over the parties administering a foreign will when they are resident within Scotland, or the estate they are administering is within Scotland, though the Courts. of Scotland will only exercise that jurisdiction when an accounting cannot be obtained in the more convenient forum; (4) because the terms of Art. 19 of the Treaty of Union relied on in the Court of Session did not apply; (5) because the Confirmation and Probate Act 1858 relied on in the Court of Session has no bearing on a question of jurisdiction. But (II.) held that the sequestration of the trust-estate and appointment of a judicial factor having been ordered by the Court of Session in the exercise of its own independent jurisdiction unaffected by the decision of the House of Lords in the English appeal, and in order that the administration of the estate should proceed in the proper and convenient forum, were right and ought to be supported. Orr Ewing and Others v. Orr Ewing's Trustees, p. Jurisdiction. See Process-Statute-Justiciary Cases-Burgh-Husband and Wife. 911. Jury Trial. See Process. Jus Tertii. See Mines and Minerals. Justiciary Cases. -Salmon Fishing-Competition of Civil Right-Salmon Fisheries Acts, 9 Geo. IV. c. 39, and 7 and 8 Vict. c. 95, sec. 1. A person was accused and convicted in a Sheriff Court, at the instance of a person alleging an exclusive right of salmon fishing, of a breach of the Salmon Fisheries Acts, 9 Geo. IV. c. 39, and 7 and 8 Vict. c. 95, sec. 1. It appeared that the accused had relevantly averred a right to fish for salmon as a member of community of a burgh which had a Crown charter of fishing at the point in question, on which charter immemorial possession of salmon fishing had followed. Held that the conviction must be set aside, since the question was one of competition of civil right. Higgins v. Earl of Moray, p. 8. -Act 8 and 9 Vict. cap. 41 (The Statute Service Act 1845), secs. 26 and 38; Act 27 and 28 Vict. cap. cxxxix (The Zetland Road Act 1864) -Obstruction of Thoroughfare-Jurisdiction— Concurrent Jurisdiction in Road Trustees and Burgh Magistrates. The Zetland Road Act 1864, incorporating sec. 38 of the Statute Service Act 1845, authorises the road trustees to prosecute in the Sheriff Court for offences against the Road Acts. The burgh of Lerwick adopted the Lindsay Act, which gave the commissioners of police power to prosecute for offences committed on streets within burgh. Held that the road trustees and the magis trates of the burgh had concurrent jurisdiction over places forming part of the roads within the limits of the Road Trust, and also of the streets within the burgh, and therefore that a complaint of obstruction at such a place, presented to the Sheriff at the instance of the Procurator-Fiscal, was competent. Galloway v. Leisk and Sandison, p. 84. Justiciary Cases-Poaching-Trespass in Pursuit of Game-Rabbits-Day Trespass Act 1832 (2 and 3 Will. IV. c. 68), sec. 1. A person was charged under the Day Trespass Act with "entering on the farm of O, without leave of the proprietor, in pursuit of...conies." He had been invited by letter by the tenant of the farm to come and stay a week and shoot rabbits. The Court dismissed the complaint on the ground that at common law the tenant had a right (which was not alleged to be excluded by the lease) to shoot rabbits, and to authorise anyone he chose to do so. Stuart (P.-F. of Midlothian) v. Murray, p. 87. -License-Grocer's Certificate Breach of Certificate - "Giving Out Liquor". PublicHouses Acts Amendment (Scotland) Act 1862 (25 and 26 Vict. c. 35), Schedule A, No. 2. Held that a person holding a grocer's certificate, who gratuitously gave a pint of ale to two friends by way of a treat in the kitchen behind the shop (it being part of the licensed premises), to be drunk or consumed there, did not so "give" ale to be drunk on the premises in the sense of the Public-Houses Act 1862 and the certificate as to commit a breach thereof. Kay v. Gemmell, p. 89. -Salmon Fishing-Salmon Fisheries (Scotland) Act 1868 (31 and 32 Vict. c. 103), sec. 21 -Possession of Salmon in Close Time. In a prosecution under the Salmon Fisheries Act 1868, sec. 21, for having in possession fish of the salmon kind on a day after the expiry of net-fishing in the district, but during the legal period of rod-fishing, it was proved that the accused had such fish in their possession on the day libelled, and that the fish had been caught with a net. On a number of other rivers close-time had not commenced. Held that possession of such fish at the time libelled not being illegal, the accused could not be convicted under the section founded on. Opinion (per Lord Young) that the section only applied to possession of salmon during the close-time for every district, and by every mode of fishing. Wilsone v. Harvey and Others. p. 90. Want of Care in Storing Explosives—Explosives Act 1875 (38 Vict. c. 17), secs. 23 and 39-Summary Jurisdiction Act 1881 (44 and 45 Vict. c. 33), sec. 6-Appeal-Competency. A magistrate acquitted a person charged with having failed to take due precautions to prevent unauthorised persons from having access to explosives, the ground of judgment being that he had taken all precautions obligatory or considered practicable at the time. The prosecutor appealed, and argued that a particular precaution ought in the circumstances to have been taken. Held that what the magistrate had decided was a question of fact, and that the decision was therefore not subject to review. Dykes (P.-F. of Hamilton Sheriff Court) v. William Dixon (Limited), p. 406. Justiciary Cases--Indictment--Breach of Trust and Embezzlement Relevancy-Latitude in Time. I. A person who as factor comes into possession of money on behalf of his employer, and feloniously appropriates it, is guilty not of theft but of embezzlement. A person who had as a factor come into possession of a specified sum of money, was charged with embezzlement, in so far as, he having as factor obtained the money under the trust and duty that he should forthwith hand it over to the trustee in a sequestration, and should in no event appropriate it to his own uses, he did fail to hand it over or account for it to the trustee or his constituent, and "did on the said 6th day of January 1881, or on some other of the days of that month, or of the month of February immediately following, or between the said 6th day of January 1881 and the 30th day of June 1882 both inclusive, the time more particularly being to the prosecutor unknown," wickedly and feloniously, in breach of the trust incumbent on you, as aforesaid, embezzle and appropriate to your own uses and purposes the said sum, being the property of his constituent, or of the trustee. It was objected (1) that there was no sufficient specification of the separate acts of appropriation constituting the failure in duty or trust to hand over or to account; and (2) that the latitude of time in libel was unwarranted. Held that the charge was relevant. H. M. Advocate v. Fleming, p. 435. -Indictment — Amendment after Proof— Summary Procedure Act 1864 (27 and 28 Vict. c. 53), sec. 5-Alternative Conviction. By a clerical error in an indictment under the Summary Jurisdiction Acts 1864 and 1881, the date of the alleged offence was said to be 8th November instead of 8th December. After part of the evidence had been led the magistrate allowed the libel to be amended. No prejudice arose to the accused thereby. In a suspension by them of a conviction pronounced on the evidence-held that the amendment was competent. Matheson and Others v. Ross, p. 559. -Taking Salmon Unlawfully-Salmon Fisheries (Scotland) Act 1868 (31 and 32 Vict. cap. 123). A person having a licence to fish for white fish by means of stake-nets in the Solway from the proprietor of the fisheries, had set up stake-nets in certain parts of the river bed. He was convicted of a contravention of the Salmon Fisheries (Scotland) Act 1868, by taking salmon in close time, on evidence that a salmon had been found in one of these nets during close time one morning shortly after the tide ebbed. Held that conviction was not legal, as it did not appear that the accused was wilfully fishing for salmon, and it was admitted that salmon might occasionally get into the net. Haydon v. Cormack, p. 563. Justiciary Cases-Conviction-Fine-Imprisonment. In a conviction for a contravention of the Salmon Fisheries (Scotland) Act 1868, the Justices of the Peace imposed a fine, "and in respect that it is inexpedient to issue a warrant of poinding and sale, order the accused to be imprisoned for fourteen days." Held that the conviction was bad, because ex facie thereof it ordered both fine and imprisonment. Haydon v. Cormack, p. 563. - -——School — Elementary Education Complaint-Summary Jurisdiction Act 1881, sec. 9. The School Board of North Uist brought before the Sheriff-Substitute at Lochmaddy a complaint signed by their compulsory officer, craving an attendance order against Norman Macdonald on the ground that he had failed without reasonable excuse to provide efficient elementary education for his children. The Sheriff-Substitute, having regard to the Summary Jurisdiction Act 1881, sec. 9, dismissed the case, on the ground that the compulsory officer who signed the complaint on behalf of the Board was not a duly qualified law-agent. The Board took a case to have the opinion of the Court. The Court were of opinion that the complaint was good. School Board of North Uist v. Macdonald, p. 564. ——Hotel - Breach of Certificate - PublicHouses Acts Amendment (Scotland) Act 1862 (25 and 26 Vict. c. 35)-Permitting or Suffering Drinking on Sunday by Person not a Lodger or Bona fide Traveller-Master and Servant. A hotel-keeper left his hotel on a Sunday in charge of a servant, locking up the house and bar before he left, but leaving with the servant, to whom he gave strict injunctions to admit none but bona fide travellers, a supply of whisky and beer in the event of such travellers coming to the hotel. During his absence the servant admitted two friends, known by her not to be travellers, and supplied them with whisky, for which they paid, and the price of which the servant accounted for to the hotel-keeper. Held that the hotel-keeper could not be convicted of "permitting and suffering drinking on Sunday" by persons not lodgers or bona fide travellers. Greenhill v. Stirling (P.-F. of Forfar), p. 564. -Grocer's Certificate-Public-Houses Amendment (Scotland) Act 1862 (25 and 26 Vict. cap. 35), Schedule A, No. 3. Held (following Kay v. Gemmell, November 13, 1884, supra, p. 89, and 12 R. (J.C.) 14) that a licensed grocer who gave a friend a glass of ale in his licensed premises did not commit a breach of his certificate. M'Petrie v. Cadenhead (P.-F. of Burgh of Aberdeen), p. 566. --Complaint-Conviction - Tweed Fisheries Amendment Act 1859 (22 and 23 Vict. cap. lxx). A conviction of contravention of the Tweed Fisheries Amendment Act 1859 by taking salmon "by means of a light and leister, or otherwise to the prosecutor unknown," sus-pended, on the ground that taking salmon by rod and line was legal at the date charged, and the conviction did not negative such legal manner of taking. Walker and Others v. Rodger (P.-F. of Selkirk), p. 567. Justiciary Cases--Indictment--Breach of Trust and Embezzlement--Relevancy--Specification--Locus. A person who had, as factor for a sequestrated estate, come into possession of a specified sum of money, was charged with embezzlement, in so far as he having as factor obtained the money under the trust and duty that he should forthwith account for and pay it to the trustee in a sequestration, and in no event appropriate it to his own uses, he did fail so to account, and did, wickedly and feloniously, and contrary to his duty, and in breach of the trust incumbent on him, embezzle and appropriate the said sum to his own uses and purposes. It was objected that the charge was irrelevant in respect of deficient specification, in not stating by whom the panel had been appointed factor, and on whom therefore the alleged fraud was committed. Objection repelled. II. A person was charged with breach of trust and embezzlement, in so far as he having as sub-factor received" on or about the respective dates specified in the first column of the schedule hereto annexed and referred to, from the persons and firms respectively whose names and addresses are set forth in the second column of the said schedule, the respective sums of money set forth in the third column of the said schedule, amounting in all to" a specified sum, being rents of certain heritable properties, and it being his duty and according to his trust from the factor to account for and pay the rents regularly to him, and in no event to appropriate them to his own uses, he did fail so to pay or account and did embezzle the various sums scheduled, amounting in all to the sum specified in the indictment. The Court repelled the objection that this charge was irrelevant as being deficient in specification, (1) either in the indictment or the schedule, of the locus of the receipt of the various sums alleged to have been embezzled, and (2) in the indictment, of the persons from whom the sums were received. H. M. Advocate v. Fleming, p. 591. -Sea Fisheries Act 1883 (46 and 47 Vict. c. 22), sec. 11-Procurator-Fiscal-Title to Prosecute. Held that a procurator-fiscal has a title to prosecute under the Sea Fisheries Act 1883 notwithstanding the provisions of section 11. Nicholson v. Yoole, p. 842. -Public Health Nuisance -Author of Nuisance-Public Health Act 1867 (30 and 31 Vict. c. 101), secs. 16, 18, and 24. The police commissioners of a burgh lodged a complaint. in the Sheriff Court against the proprietors of certain lands divided by a burn or watercourse, to have it found that the burn or water-course constituted a nuisance under the Public Health Act, in consequence of the discharge into it of sewage, and these proprietors were the authors of the nuisance, and to have them ordained to remove it. It was proved that no impure matter was discharged into the water-course by the proprietors, or by any of their tenants or feuars at the part complained of, but that the impurity was caused by sewage discharged into it by other parties higher up its course. The Sheriff-Substitute, in respect that the defenders were the owners of the properties on which the nuisance actually existed, decided that they were the authors thereof under the Public Health Act, and ordained them to abate the nuisance. Judgment of the Sheriff-Substitute affirmed. Police Commissioners of Govan v. Mackinnon and Others, p. 843. Justiciary Cases-Salmon Fisheries (Scotland) Act 1868 (31 and 32 Vict. c. 123), sec. 30-Title to Prosecute--Procurator-Fiscal. Held that under sec. 30 of the Salmon Fisheries Act 1868, the Procurator-Fiscal of the Justice of Peace Court has a title to prosecute for contravention of the Act. Gemmell v. Hadden and Another, p. 843. -Industrial Schools Act 1866 (29 and 30 Vict. c. 118), sec. 38-Claim against Parish for Maintenance of Pauper Child at Industrial School-Title to Suspend Order of Detention. A magistrate granted orders under the Industrial Schools Act 1866 for the detention of three children in an industrial school, as being subject to the provisions of the Act, and the children were detained accordingly. The inspector of industrial schools then made a claim under section 38 of the statute for maintenance of the children against the inspector of poor of the parish to which the children were alleged to be chargeable as paupers. The inspector of poor thereupon presented a bill of suspension in the High Court of Justiciary, of the order of detention, on the ground of irregularity in the proceedings. It was proved that the children were not chargeable as paupers. Held that the complainer had no title to complain, and complaint dismissed. Deas v. Stewart, p. 845. -Summary Procedure Act 1864 (27 and 28 Vict. c. 53), secs. 6 and 11-Procedure-Trial -Right of Panel to Adjournment of Diet in Summary Cases. A man was apprehended on a charge of theft between six and seven p.m. and immediately incarcerated. Shortly before eight o'clock next mornimg he was asked by a police constable if he wished any persons cited as exculpatory witnesses, and on his mentioning several, citations were served upon them. The panel was placed at the bar of the Police Court at ten o'clock without having been given time to communicate with a law-agent, and without anyone having been allowed access to him. The complaint against him and the warrant appended thereto, authorising his apprehension, and authorising the citation of witnesses were signed by the magistrate that morning after he had taken his seat on the bench. All the witnesses cited for the panel did not attend. He was convicted, and sentenced to fourteen days' imprisonment. Held that under secs. 6 and 11 of the Summary Procedure Act the panel was entitled to an adjournment of the diet for forty-eight hours to prepare his defence, and that as he had not been informed of his right in this respect the conviction should be set aside. Pyper v. Walker, p. 847. Justiciary Cases--Process--Sheriff--Appeal--Small Debt Act 1837 (1 Vict. c. 41), sec. 31—Re-hearing. Decree was pronounced by the Sheriff in a small-debt action founded on a tradesman's account. The defender appealed to the Court of Justiciary, and pleaded that no evidence had been led in the Small Debt Court of any contract between him and the pursuer, and that there was no contract between them. He stated that the contract founded on was between him and a third party against whom he had a counter claim of greater amount. The Court remitted the case to the Sheriff for re-hearing, under sec. 31 of the Small Debt Act 1837. Bryce v. Spence, p. 849. Fugitive Offender Fugitive Offenders Act 1881 (44 and 45 Vict. c. 69), secs. 2, 3, 5– Jurisdiction. A prisoner was brought before a magistrate in Scotland under the Fugitive Offenders Act 1881, charged with an offence committed in the Cape Colony. The warrant of the Colonial magistrate, which was endorsed by the Secretary of State under the statute, stated the crime of which the prisoner was accused, but not the place of the alleged crime. The depositions produced with the warrant showed that there was a reasonable presumption that the offence was committed at a particular place within the British dominions. Held that it was not a good ground for objecting to the validity of a warrant to transmit the prisoner to the Colony for trial, that no place was stated in the warrant. Opinion that the warrant being endorsed by the Secretary of State, the magistrate ought not to consider its validity in point of form. Carlin v. Government of Colony of Cape of Good Hope, and Wood, p. 906. -Crinien continuum--Fugitive Offenders Act 1881, sec. 21. The depositions showed that there was a strong presumption that the offence alleged was begun in a British Colony, and completed either therein or in a neighbouring state. Held (1) that there were grounds for granting a warrant to transmit the prisoner on suspicion of a crime committed within the Colony; and (2) that assuming the completion of the crime to have taken place outside the Colony, the doctrine of crimen continuum applied to the case. Carlin v. Government of Colony of Cape of Good Hope, and Wood, p. 906. -Indictment Conviction Alternative Charge. Where a libel was expressed alternatively, but there was no proper inconsistency between the charges, but only a second narrative of the same facts in an alternative form, the Court refused to suspend a sentence proceeding on a verdict of guilty as libelled, on the ground of general conviction following on an alternative charge. Robertsons v. Caird (P.-F. of Kincardineshire), p. 909. -Fraudulent Bankruptcy-Debtors (Scotland) Act 1880 (43 and 44 Vict. c. 34), sec. 13 -"Debtor"-Art and Part A person who was neither a debtor under sequestration or cessio nor insolvent, having been convicted of the offence specified by section 13 of the Debtors Act 1880, on the ground that he had assisted such a debtor, of whose position and fraudulent design he had full knowledge, to conceal his effects from his creditors, the Court suspended the conviction on the ground that only a debtor in the sense of the section could competently be convicted under it. Robertsons v. Caird (P.-F. of Kincardineshire), p. 909. Justification. See Reparation-Issue. Landlord and Tenant-Hypothec-Invecta et illata Piano the Property of Tenant's Daughter. Held that a piano the property of the minor daughter of an urban tenant, and which was kept by her in her father's house, where she herself resided, was not subject to the landlord's hypothec for rent. Bell v. Andrews, p. 640. -See Lease. Lapsed Share. See Succession. Laws, Alteration in. See Friendly Society. -Informal Minute of Agreement · Rent Fixed by Arbitration-Assignation-Homologation. R., the tenant of a farm, sublet by an informal minute of agreement to B., for sporting purposes, with liberty to assign, part of his grazing ground, the rent to be assessed or valued by two valuators, one for each of the above-named parties, with an oversman if required. Possession followed on the agreement. B. offered to W. an assignation of the sublease, the offer to be binding for a certain time. During the currency of this offer, B. and R., by formal minute of reference, nominated arbiters and an oversman, who accepted the reference and fixed the rent by an improbative award. Thereafter W. accepted B.'s offer, and entered on possession under the assignation, and while he was in possession B. paid R. the rent fixed by the award for the period prior to the assignation. In an action by R. against W. for the rent applicable to his possession at the sum fixed by the award -held (diss. Lord Rutherfurd Clark) that the informal award having been homologated by the payment by B., was binding on him, and on W. as his assignee. Robertson v. Boyd and Winans, p. 331. --Landlord and Tenant-Rent-Undue Use of Premises Let. The floor of premises let to a jute merchant gave way under the load placed on it, and he abandoned the premises and refused to pay rent for them. Held, on a proof, that the floor gave way because he had loaded it unreasonably, and that he was liable for the rent. Corrie, Mackie, & Company. Stewart, p. 350. -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. Galloway v. Cowden, p. 371. Lease-Landlord and Tenant-Fixtures-Greenhouses and Conservatories—Implied Agreement. Circumstances in which a tenant of a house and garden was allowed to remove at the ish of his lease valuable greenhouses and conservatories erected by him of substantial nature, and bedded on stone and brick foundations. The proprietrix of a house and garden let them for five years, at a rent of £45 a-year, to a tenant who was taken bound under the lease, inter alia, "not to remove away any of the fruit trees and others in the garden, except to replace the same by others of equal quality and value." The lease was subsequently renewed for two periods of five years. The tenant, who was a great lover of flowers, on entering on the subjects removed some trees in the garden, and built in their place greenhouses and conservatories, bedded on stone and brick foundations, at a cost of between £800 and £900. He used to compete successfully for prizes at flower shows, given for tulips, hyacinths, and orchids, selling the bulbs to florists, and he kept three gardeners at a cost of over £150 a-year. At the ish of the lease he removed the greenhouses, &c. In an action at the instance of the successors of the proprietrix for the value of the erections, the Court assoilzied the defender, being of opinion, on a consideration of the evidence led, that the pursuer's author knew of and acquiesced in the defender's intention to build the greenhouses, and that there was an implied agreement that he was to be at liberty to remove them at the ish of the lease on condition of planting other trees in place of those removed -diss. Lord Rutherfurd Clark, who was of opinion that no such agreement was to be implied either from the transactions and conduct of the parties or from the nature of the tenFerguson and others v. Paul, p. 809. -Landlord and Tenant-Joint and Several Liability. A mineral lease was granted to two tenants and the survivor, the tenants binding "themselves and their respective heirs, executors, and successors, all conjunctly and severally, renouncing the benefit of discussion," for the rent. It was stipulated that if the tenants or either of them should be sequestrated, the lease should, in the landlord's option, become ipso facto void and null. One ure. |