Trs. v. Inland Mrs Cormack stipulated had, so far as appears, no relation of any kind to the value of the benefits which she surrendered. It was stated at the bar, and was not contradicted by the counsel for the Inland Revenue, that Mrs Cormack was eighty years of age at the date of the agree ment. Accordingly after making a fair allowance for the various stipulations the value of which does not appear on the face of the instrument, and which the Commissioners did not think it necessary to determine-stipulations which counsel on both sides appeared to regard as negligible--the result of the whole matter is that Mrs Cormack inay be said to have discharged her right to the immediate payment of a capital sum exceeding £136,000, and also her liferent interest in one-third of the rents of her husband's heritable property in return for benefits which will cease upon her death, and the annual value of which during her life will probably not exceed the annual income which she would have enjoyed if she had claimed her jus relicta and had purchased trust investments, which at the then current rate of (say) 4 per cent. would have provided an annual income of £6120, to which say (£50) would have fallen to be added annually during her life in respect of her terce, without encroaching on her invested capital. The Commissioners have implicitly decided that this transaction was in its nature one of purchase and sale, or that it must be deemed to fall within that category in respect of some statutory enactment. If this view is well founded I should hesitate to say that the Commissioners were not entitled to proceed as they actually did, viz., to hold (as I understand them to have held) that Mrs Cormack sold her legal rights to her husband's trustees, that those legal rights were "property" or an "interest in property" within the meaning of the Stamp Act 1891, and that the agreement which carried this sale into effect must be stamped in terms of the First Schedule to the Act as a "release or renunciation . . . upon a sale" with ad valorm conveyance-onsale duty upon the value of the consideration, viz., an annuity of £4100 capitalised as directed in section 56 (3) of the statute. In justification of the course adopted by the Commissioners it may be admitted that a testator who in his will makes conventional provision for his widow, which he declares to be in satisfaction of her terce and jus relicta, is occasionally said to have offered her these conventional provisions as the price of a discharge of her legal rights as his widow. I have always regarded such language as rhetorical and inaccurate, and I do not know of any section of the Stamp Acts which makes it necessary to take a different view of the matter. Wills containing provisions of this kind are very common, and I confess that I was ignorant that discharges granted in pursuance thereof attracted an ad valorem stamp duty as conveyances on sale. As an alternative view it was suggested in the Stated Case on behalf of the Commissioners that the transaction with which we are concerned might be regarded as a purchase by Mrs Cormack 27, of a life annuity of £4100, in which case ad valorem stamp duty would in the view of the Commissioners be calculated upon the sum of £136,000 as the consideration for the sale, thus increasing the stamp duty from £492, 10s. as assessed by the Commissioners to £1360, 10s. This alternative contention seems to me to be quite inadmissible. Nothing is more common than for a person who is a creditor for a debt which is immediately exigible to agree with his debtor to accept payment of the debt in the form of annual instalments during a certain period of years, or again, during the life of the debtor. Further, if the creditor is generous, or possibly ordinarily prudent, he may agree to accept in satisfaction for his debt an annual sum during his debtor's life which does not exceed the interest on the debt. I never before heard it suggested that such transactions must necessarily be regarded as purchases by the creditor of an annuity for a term of years or for life, and I reject the suggestion that any such contract of purchase and sale was made between Mrs Cormack and her husband's trustees. The Commissioners refer to section 60 of the statute, but this section does not apply unless there has been a "sale" of an annuity or other right, in which case by a legal fiction an instrument containing a mere personal obligation is "deemed " to be an instrument of conveyance on sale. In my judgment the transaction was not one of purchase and sale, but was one by which a body of family trustees who had presumably no legal power either to invest the trust funds except on trust investments or to traffic in the sale of life annuities compounded a claim against the trust estate upon exceedingly favourable terms, and thereby, as was said by Lord President Inglis in City of Glasgow Bank v. Geddes's Trustees (1880, 7 R. 731, p. 734), exercised a "discretionary power which must be vested in all trustees." If I am right in this opinion, it was not argued on behalf of the Inland Revenue that the stamp duty ought not to be assessed at the sum of £102, 10s., as contended for by the appellants. LORD CULLEN--I concur. LORD SANDS-By the testament of the late Mr James Cormack, shipowner, Leith, certain provisions were made in favour of his widow. These provisions were of much less value than her legal rights, and she made a claim for the latter, which were of very large value. After certain negotiations an agreement, embodied in a deed which is printed in the Stated Case, was concluded between Mrs Cormack and the testamentary trustees. Under this agreement Mrs Cormack discharged her "whole rights of aliment, mournings, terce, and jus relictæ." In consideration of this discharge she agreed to accept (1) an annuity of £4100 per annum for her life free of income tax and super tax; (2) the liferent of a dwelling-house to be provided by the trustees; and (3) the liferent of certain furniture. A question has now arisen as to the amount of stamp duty exigible upon this Trs. v. Inland 27, deed. The testamentary trustees maintain that the amount of the duty is determined by its character as being a "bond, covenant, or instrument . . . being the only or principal or primary security for any annuity (except upon the original creation thereof by way of sale or security. . .)"-Act of 1891, Schedule I. The Commissioners of Inland Revenue, on the other hand, have determined that the deed here in question falls under the exception "except on the original creation thereof by way of sale,' and that the stamp duty chargeable is the duty chargeable upon the release or renunciation of any property upon a sale. The question accordingly arises whether the transaction embodied in the deed involved a "sale" within the meaning of the statute. Sale is a form of exchange in which the consideration on one side is money, or something that by law or practice is treated as equivalent thereto. In this view it is important to observe what was the consideration here hinc inde. In the narrative of the deed an indication is given, very naturally as I think, of the approximate estimated amount of the value of the money rights which the lady surrendered. But there had been no realisation, and, in the view I take, the consideration, even on the lady's side, was not a sum of money, but, as the operative part of the deed bears, the surrender of her "whole rights of aliment, mournings, terce, and jus relicta." On the other side, apart from sentiment which in view of the inadequacy must have bulked largely in the matter, the consideration given by the trustees was an annuity, the liferent of a house, and a liferent of furniture. Now, but for the terms of the statute, it might have appeared that an annuity is not money. But under section 56 (3) it is provided, "Where the consideration, or any part of the consideration, for a conveyance on sale consists of money payable periodically during any life or lives, the conveyance is to be charged in respect of that consideration with ad valorem duty on the amount which will or may, according to the terms of sale, be payable during the period of twelve years next after the day of the date of the instrument." This seems to make it clear that when property is conveyed solely in consideration of an annuity, the transaction is to be treated as a sale, the annuity supplying the place of the money element in a sale It has to be observed that the Act does not consistently treat an annuity as money. For it seems clear under the terms of the schedule already quoted that where money is given as the consideration for the grant of an annuity, this may be treated as the sale of the annuity. In considering whether this transaction whereby on the one hand the widow surrendered her legal rights, and, on the other hand, obtained an annuity, a liferent in a house, and the liferent of certain furniture was a sale, the whole transaction must, I think, be considered in relation to the surrounding circumstances. The arrangement was not a sale in form, nor was it, in my view, a sale according to popular understanding and terminology. These considera tions, however, are not conclusive if a transaction, though not in the form of a sale and, owing to some incidental peculiarity, not a sale according to popular terminology, is truly in substance a sale, that is, an exchange in which the consideration upon one side is money. Did Mrs Cormack sell her rights as widow in her husband's estate for a sum of money, or, on the other hand, did she buy an annuity for a sum of mouey or what was so immediately or definitely commensurable with a sum of money as to be equivalent thereto? In my opinion this was not the real nature of the transaction. In reaching this conclusion I have special regard to two considerations. In the first place, apart from sentiment to which I have already alluded, there were elements other than money on either side. These elements may not bulk very large, but they are not elusory, and there is of course no suggestion that they were introduced to disguise the real nature of the transaction. In the second place, there was such a disparity in value between what was given and what was received as to exclude the idea of sale as a commercial transaction with so much property on the one side set against so much money on the other. It is clear, I think, that if the widow had discharged her legal rights without consideration, no other duty than a discharge stamp would have been exigible. I am unable to accept the suggestion that if the lady had stipulated that as part of the arrangement a family portrait, worth say £3000, should be handed over to her, this could have been treated as a sale to her of a portrait for £136,000 or thereby, and liable to stamp duty as such. I do not indeed go so far as to suggest that a transaction is not to be treated as a sale wherever it appears that, though all other conditions are satisfied, the consideration on the one side is somewhat inadequate. But such gross inadequacy as appears in the present case is, in my view, a legitimate element to be taken into consideration in determining whether, in the light of the whole circumstances, the transaction was truly of the nature of a sale, or was, on the other hand, a family arrangement into which the considerations peculiar to sale of something for money did not largely enter. I come accordingly to the conclusion that the amount of duty exigible is the duty chargeable upon a deed embodying a covenant for the creation of an annuity otherwise than on the original creation of it by way of sale. The Court found that the instrument was not liable to be assessed and charged with the duty of £492 and 10s., and that the duty liable to be assessed was £102, 10s. and 10s., and ordered repayment to the appellants of £389, 10s. Counsel for Appellants-D. P. Fleming, K.C.-Normand. Agents-Boyd, Jameson, & Young, W.S. Counsel for Respondents - Hon. W. Watson, K.C.-Skelton. Agent-Stair A. Gillon, Solicitor of Inland Revenue. Judicial Factor Friday, July 11. FIRST DIVISION. [Lord Morison, Ordinary. GORDON'S JUDICIAL FACTOR v. GORDON'S EXECUTRICES AND OTHERS. Administration of Justice - Procedure Title to Plead Husband Claiming to Plead Case for Wife. A husband of a woman of full age being in consequence of the Married Women's Property (Scotland) Act 1920 no longer her administrator-in-law nor her curator is not entitled to plead in Court in support of his wife's case. James Harold Macdonald, Writer to the Signet, Edinburgh, judicial factor on the estate of the late Charles Gordon, sometime of Halmyre in the county of Peebles, pursuer and real raiser, brought an action of multiplepoinding against (first) the executrices of the late Charles Gordon, (second) Mrs Eleanora Gordon Cumming or Nakeska, otherwise Nakeski - Cumming, wife of Michael Naake Nakeska, otherwise NakeskiCumming, and (third) the trustee on Mrs Nakeski-Cumming's sequestrated estate, defenders. Mrs Nakeski-Cumming lodged a claim, which she signed herself. When the case was called in the procedure roll Mr Nakeski-Cumming appeared at the bar and maintained that he was entitled to be heard in support of his wife's claim. The Lord Ordinary (MORISON) reported the cause to the First Division. Opinion.-"The Lord Ordinary reports this cause for the direction of the Court on a question of some general importance. The action is one of multiplepoinding and exoneration raised by the judicial factor on the estates of the late Mr Gordon of Halmyre for the purpose of distributing certain assets among the parties entitled to them. The defenders called are (1) the executrices-dative of the late Mr Gordon, (2) Mrs Cumming or Nakeska, and (3) the trustee on her sequestrated estate. "When the case was called in the procedure roll the husband of the claimant Mrs Cumming or Nakeska appeared and maintained that he was entitled to be heard in support of his wife's claim. He explained that he had resided in Edinburgh for the last 17 years and that his domicile was Scottish, and contended-(1) That at common law the husband had the right to appear in Court and argue questions affecting his wife's estate; (2) that this right was not affected by the Statute 10 and 11 Geo. V, cap. 64, sec. 1, and in particular that this statute did not apply because the question at issue in the action arose prior to 1920; (3) that his right of jus relicti in his wife's estate gave him a title to appear. "The Lord Ordinary is of opinion that it has hitherto been the practice of the Court to hear the husband in support of his wife's claim or in a suit to which she is a party. 11, 1924 The reason for the practice is that until 1920 the husband was also a party to the wife's suit. Prior to 1920 a wife could not in general sue an action in court without the consent of her husband, and it was necessary for a pursuer to convene the husband as his wife's curator and administratorin-law in any judicial proceeding raised against a wife regarding her estate. This arose from the husband's common law rights-thejus mariti and the jus administrationis. He was a 'party' to the cause, and thus had the right of audience in court which a party to a suit invariably has. The jus mariti was abolished by statute in 1881. The jus administrationis was wholly abolished' by section 1 of the Married Women's Property (Scotland) Act 1920 (10 and 11 Geo. V, cap. 64). It appears to the Lord Ordinary that the effect of this statute is from its date to deprive a wife of the protection which the common law of Scotland afforded to her as regards her property, and that it is now incompetent to convene the husband to any suit which relates to her separate estate. The Lord Ordinary is therefore of opinion that the basis upon which the Court has hitherto permitted a husband to plead his wife's cause in a civil suit has entirely disappeared. "It may be that the Court can now permit the practice to continue, but in view of the comprehensive terms of section 1 of the statute the Lord Ordinary is not disposed without the direction of the Court to initiate this procedure. It is true that the husband's jus relicti remains, but this claim is purely contingent and does not arise until his wife's death. "The claimant Mrs Nakeska is an undischarged bankrupt and, the Lord Ordinary was informed, is unable to argue her claim. She may, however, apply for the benefit of the poor's roll, and if she has a probable cause her case will be conducted in accordance with the usual practice, which is in the Lord Ordinary's opinion entirely satisfactory. The Lord Ordinary is inclined to think that in the present case the process should be sisted in order to enable the claimant Mrs Nakeska to apply for the benefit of the poor's roll." When the case came before the First Division, Mr Nakeski-Cumming appeared in person, and argued that he was entitled to plead on behalf of his wife in respect of his natural duty to support his wife and in respect that he could be made liable for expenses as dominus litis. He referred to M'Ilwaine v. Stewart's Trustees, 1914 S.C. 934, 51 S.L. R. 831. Counsel for the other parties did not submit any argument. LORD PRESIDENT (CLYDE) - This is an action of multiplepoinding, the pursuer and real raiser of which is the judicial factor on the estate of the late Charles Gordon. The defenders called include Mrs Eleanora GordonCumming or Nakeski-Cumming, described in the summons as the wife of Michael NakeskiCumming and as residing with her said husband at his home address, and also the trustee on the sequestrated estates of the Judicial Factor 11, 1924 said Mrs Nakeski-Cumming. Mrs NakeskiCumming has lodged a claim in the action and it is signed per party in her own name. The Lord Ordinary informs us in his report that when the case appeared in the procedure roll Mrs Nakeski-Cumming's husband appeared and maintained that he was entitled to be heard in support of his wife's claim. The question is whether he is so entitled especially in view of the provisions of the recent Married Women's Property (Scotland) Act 1920. The right of audience in the Court of Session is part of the original constitution of that Court, and is expressly defined in the legislation of 1532 [Scots Acts (duodec. ed.) i, pp. 217-227, where the legislation is attributed to the year 1537, the chapters being 36-38 inclusive; see also the final Parliamentary ratification, at p. 242], which established the College of Justice. Chapter 51 [Scots Acts (duodec. ed.) i, p. 221] of the said constitution of the Court of Session, which so far as the present question is concerned has never been altered or departed from in practice, is in the following terms:"That na man enter to pley bot parties conteined in their summoundes and their procuratoures gif they will ony have." The procurators in question were the advocates, whose office was instituted by chapters 64, 65, and 66 [Scots Acts (duodec. ed.) i, p. 224], and whose admission and duties are still regulated accordingly. The right of audience before this Court is thus equally shared by the parties litigant before it and by duly admitted advocates who appear on their behalf, but it belongs to noone else. Pleadings in cases called before this Court are accordingly presented to it either per party or per procuratorship of counsel and in no other way. Until the recent Married Women's Property Act of 1920 the husband of a married woman was a proper and competent, usually a necessary, party to any litigation in which her estate was concerned or as the result of which her estate might be affected, whether such estate was heritable or moveable. (I omit any reference to the older state of matters when the jus mariti was operative.) The reason of course was (first) that the husband was the legal administrator of his wife's estate; and (second) that even though his legal administration had been excluded (for example, by antenuptial marriage contract) he was none the less her legal curator. The husband was therefore regularly made a party to an action such as this multiplepoinding in the double capacity of curator and administrator-in-law of his wife, or at any rate in the capacity of curator. The Lord Ordinary points out that under section 1 of the Married Women's Property (Scotland) Act of 1920 the husband's administratorship-at-law is wholly abolished. But it is necessary to add that by section 2 the powers and duties of the husband as curator of his wife are also removed except and unless in the case in which the wife is a minor. It is not suggested that the present case falls within the exception. The action before us was therefore properly presented to the Court without calling the husband as a defender in any capacity, and indeed without any reference to the husband except in so far as Mrs Nakeski-Cumming is designed as his wife and living with him. The husband is not in any sense a party "contained in the summons.' He is not even, as the law now stands, a competent party to the action at all. That is, no doubt, why in the written pleadings before the Court (comprised in the closed record) Mrs Nakeski-Cumming herself signs her claim per party. The common law of Scotland was jealous to preserve to married women the protection to to which the marriage status entitled them in defending their property and interests, and if the husband was absent or incapacitated the practice was to appoint a curator ad litem in his place. But the modern order of ideas, of which the Act of 1920 is an expression, supersedes all this, and the married woman (being major) is in the same position as an unmarried woman (who had attained majority) always was. It would be difficult to draw a line between the right to plead in writing and the right to plead orally. It would have been incompetent for the husband to sign his wife's claim. He could not do so per party, for he is not a party, and he could not do so as administrator or as curator, for he is no longer such. How then can he be entitled to plead his wife's case orally any more than a father, son, brother, or other relative or friend? I think it is impossible to give the husband right of audience in the present case. LORD SKERRINGTON-I concur. LORD CULLEN-I also concur. LORD SANDS-I do not differ, but I acquiesce with some reluctance. It appears to me that under the constraint of recent legislation we are drifting away from a conception of the marriage tie which rests upon a plane higher than that of any rules of jus administrationis or curatory. The Court directed the Lord Ordinary that the husband of the claimant Mrs Nakeski-Cumming was not entitled to be heard in support of his wife's claim, and remitted the cause to the Lord Ordinary to proceed. Counsel for the Pursuer and Real Raiser Macintosh. Agents Morton, Smart, Macdonald, & Prosser, W.S. Counsel for the Executrices of the late Charles Gordon-Carmont. Agents-Mackenzie, Innes, & Logan, W.S. For Mrs Nakeski-Cumming-Mr NakeskiCumming. Parish Council Saturday, July 19. SECOND DIVISION. [Sheriff Court at Duns. MELROSE PARISH COUNCIL v. GORDON PARISH COUNCIL. - Poor Relief - "Able-bodied" One-armed Man-Poor Law (Scotland) Act 1845 (8 and 9 Vict. cap. 83), sec. 68. The Poor Law (Scotland) Act 1845, section 68, enacts "All assessments imposed and levied for the relief of the poor shall extend and be applicable to the relief of occasional as well as permanent poor: Provided always that nothing herein contained shall be held to confer a right to demand relief on able-bodied persons out of employment." A parish council which had given relief to a destitute one-armed man brought an action under the Poor Law (Scotland) Act 1845 against the parish council of the parish in which the man had a settlement to recover the amount of the payments they had made. Prior to obtaining relief the man had for several years, in various occupations, earned wages sufficient to maintain himself and his family, but having become unemployed applied for and obtained the relief after the unemploy ment benefit he received under the Unemployment Insurance Acts had ceased. Held (diss. Lord Hunter) that the man was able-bodied" within the meaning of section 68 of the Poor Law (Scotland) Act 1815, and accordingly not entitled to relief under the Act, and defenders assoilzied. 66 Query-Is the test of a person being "able-bodied" within the meaning of the Poor Law (Scotland) Act 1845, ability to earn his own subsistence, or to earn subsistence for himself and his family? The Poor Law (Scotland) Act 1845 (8 and Vict. cap. 83) enacts-Section 68-[quoted in rubric]. Section 71-"Where in any case relief shall be afforded to a poor person found destitute in a parish or combination, it shall be lawful for the parochial board of such parish or combination to recover the moneys expended in behalf of such poor person from any parish or combination within Scotland to which he may ultimately be found to belong. The Parish Council of the Parish of Melrose, pursuers, brought an action in the Sheriff Court at Duns against the Parish Council of the Parish of Gordon, defenders, for payment of £44, 16s. 11d., with interest, being the amount of sums expended by the pursuers for the relief of George Darrie and his children, whose settlement was in the the defenders' parish, and for relief from all further advances on behalf of George Darrie. After a proof the Sheriff-Substitute made the following findings in fact:-"(1) That George Darrie, who was born in 1882 in Eccles parish, Berwickshire, sustained an 19, injury in 1910 by which he lost his left arm from a point an inch or two below the elbow; (2) that he was working then as a shepherd on his father's farm in Eccles parish; (3) that when his injured arm had healed he returned and did odd jobs upon said farm; (4) that his father died in 1911 and bequeathed to him £1200; (5) that in May of 1913 he left said farm and took up residence within defenders' parish at East Gordon, and there acquired a settlement; (6) that while there he was engaged in several forms of occupation such as hawking, crofting, rabbit catching -in some cases on his own account, in others under an employer; (7) that in May of 1917 the sum which he inherited, as well as other sums which he had regularly earned, was finished, and in December 1919 he changed his residence again and went to live at Langlee in pursuers' parish; (8) that from May 1917 until October 1921 he was engaged in occupations such as stoking engines, supervising timber felling, and night watching, to which he brought a fair amount of physical capacity by which he was enabled to maintain himself and family on wages ranging from 30s. to 65s. per week; (9) that from 17th October 1921 to 12th May 1922 he, being an insured person under the Unemployment Insurance Acts, received a benefit thereunder of 26s. per week as (er hypothesi) a person physically fit for work but unable to obtain a suitable employ. ment; (10) that when this benefit had ceased in May of 1922 he applied on 22nd May to Melrose Parish Council for relief, and on their medical officer's certificate that he was not able-bodied but could do fight work received from them the sums sued for, amounting to the total sum of £44, 16s. 11d.; (11) that Darrie's settlement was then still defenders' parish. The pursuers pleaded, inter alia—“1. The pursuers having made the said advances, and being liable to make further advances on behalf of the said George Darrie and his wife and family, and the defenders' parish being the parish of settlement of the said George Darrie, the defenders are bound to relieve the pursuers of said advances, and decree should be granted as craved." The defenders pleaded, inter alia-"1. Darrie not being under such disability to work as to prevent him earning his subsistence, is not a fit subject for parochial relief, and the defenders should be assoilzied with expenses. 2. Darrie having been afforded assistance by the pursuers as an unemployed man and under the provisions of the Poor Law Emergency Provisions (Scotland) Act 1921, they are not entitled to be reimbursed sums paid by them by any other parish, and the defenders should be assoilzied with expenses. On 28th March 1924 the Sheriff-Substitute (MACAULAY SMITH) pronounced the follow ing interlocutor:-[After the findings supra] Finds in fact and law that Darrie was within the period of the payment of said sums an able-bodied man and had no legal claim to payment of said sums conform to the provisions of the Poor Law Act of 1845, and that said sums could only have |