Heritable Property Unsold and Derelict.
See Company.
Holograph Will ex facie Valid. See
Succession.

Holograph Writing. See Succession.
Husband Claiming to Plead Case for Wife.
See Administration of Justice.
Husband and Wife-Nullity of Marriage--
Refusal of Connection by Wife-Inca-
pacity. A woman, as a condition of her
marriage, stipulated that for the first
year after the marriage there should be
no sexual intercourse, and her intended
husband consented to the condition. The
parties were married on 5th November
1913, the husband being then 29 years old
and the wife 34. On the 16th November
they went to India, where they lived
together till April 1914. During this
period no intercourse was attempted, the
bargain of abstention being kept by the
husband. In April 1914 the wife returned
to Scotland with her husband's consent.
She rejoined her husband in India on
16th December 1914, and the parties again
lived together in India till September
1915. During this period the wife, in
spite of the fact that the period during
which there was to be no sexual inter-
course had expired, refused to consum-
mate the marriage though the husband
made repeated efforts to do so. In Sept-
ember 1915 the wife returned home to
undergo an operation for appendicitis.
The husband thereafter was called up for
military service, and during the next five
years the spouses were never together.
In September 1920 the husband was
released from military duties and rejoined
his wife in Scotland on 13th November of
that year when they came together at the
house of the husband's father in Perth,
sharing the same bed from the 15th to the
20th. During the period from the 15th to
the 20th the husband again attempted to
have intercourse, but his efforts were
repulsed. On 20th November the wife left
for Glasgow and thereafter the parties did
not meet again. On 14th April 1921, after
the marriage had subsisted for upwards
of eight years, during which, however,
owing to war conditions and other rea-
sons, there were only the three periods
referred to of five months, nine months,
and one week during which the spouses
lived together, the husband raised an
action of nullity of marriage against the
wife on the ground that she was incap-
able of consummating the marriage.
Alternatively he asked for divorce on
the ground of desertion, the desertion
being qualified as a wilful and malicious
refusal of carnal intercourse. There was
no structural incapacity on the part of
the wife, and it was not disputed that the
husband was vir potens. Held (rev. the
judgment of the Second Division, Lord
Anderson diss.) that the inference from
the facts was that the wife's refusal of
sexual intercourse was due, not to wilful-
ness but to incapacity on her part to con-
summate the marriage, arising from her
invincible repugnance to the sexual act,
and that accordingly decree of nullity fell

to be granted. A Bv. CB, March 13, 1906, 8 F. 603, 43 S. L. R. 411, approved. G. v. G., p. 445. Husband and Wife - Aliment Interim Aliment-Wife's Obligation to Aliment Indigent Husband Married Women's Property (Scotland) Act 1920 (10 and 11 Geo. V, cap. 64), sec. 4. The Married Women's Property (Scotland) Act 1920 provides Section 4--"In the event of à husband being unable to maintain himself, his wife, if she shall have a separate estate or have a separate income more than reasonably sufficient for her own maintenance, shall be bound out of such separate estate to provide her husband with such maintenance as he would in similar circumstances be bound to provide for her, or out of such income to contribute such sum or sums towards such maintenance as her husband would in similar circumstances be bound to contribute towards her maintenance." In an action of separation by a wife against her husband the latter moved for an award of interim aliment in respect of his own indigence and of his wife's possession of a separate income. Held that the application was competent, and that the averments disclosed prima facie ground for an award. Adair v. Adair, p. 553.

Hydraulic Accumulators. See Valuation Cases.

Hydraulic Cranes. See Valuation Cases.

Illegal Apprehension. See Reparation. Implied Permission by Licensee. See Justiciary Cases.

Import Duty on Motor Cars. See Justiciary Cases.

Incapacity. See Husband and Wife. Incapacity Due to Disease Resulting from Industrial Disease. See Workmen's Compensation.

Incapacity Resulting from Injury. See
Workmen's Incapacity.

Incapax. See Judicial Factor.
Income. See Revenue.

Income Arising from Occupation. See
Revenue.

Income Arising from Ownership. See

Revenue.

for a limited purpose and was registered under the British flag. When the vessel reached Greece she was to revert to the Greek purchaser and thereafter to pass into the hands of Greeks. During the voyage the vessel was to be managed by the Greek purchaser, who, however, was to act without a salary, receive the freight, and be liable for the disbursements apart from the insurance. He was, moreover, interested in the cargo. The vessel was insured by the British transferee, and the cargo by the Greek cargo owner at a time when Greek vessels were only insurable in the marine insurance world at exceptionally high premiums. The Greek interest in the vessel was not disclosed to the underwriters, and she was represented to be British owned. In an action at the instance of the insured against the insurers in respect of total loss, held (1) that the Greek interest in the ship was a fact material to the risk, that the state of the market at the date of the insurance with regard to the insurance of Greek ships imposed on the insured a duty of disclosing this interest, that there was nothing to put the underwriters on their guard so as to impose on them a duty to make inquiry, and therefore that the policy was voided for non-disclosure; (2) that the representation that the vessel was entitled to be registered as British owned was not in accordance with the facts of the case, and that the policy was consequently voided by active misrepresentation on the part of the insured. Borthwick v. British General Assurance Company, Limited. Demetriades v. Northern Assurance Company, Limited. Cambitsis v. Norwich Union Fire Insurance Society, Limited, p. 133. Insurance Marine Insurable Interest -Commission not Specifically Mentioned in Policy. Commission due under a collateral agreement is not covered by a policy on goods. Cambitsis v. Norwich Union Fire Insurance Society, Limited, p. 133.

Scuttled Ship-Doubt as to Privity of Insured-Burden of Proof-Failure to Establish Real Cause of Loss. Opinions per curiam that where in a claim under a policy of marine insurance in respect of the loss of the ship the evidence establishes that the ship was scuttled, but leaves it in doubt whether the insured were privy thereto, the insured had failed to prove their case. La Compania Martiartu v. Corporation of the Royal Exchange Assurance, [1923] 1 K.B. 650, and The "Elias Issaias," 1923, 15 Lloyd's List Law Reports 186, commented on. Borthwick v. British General Assurance Company, Limited. Demetriades v. Northern Assurance Company, Limited, p. 133. Insurance Policy. See Arbitration. Interdict - Interim Interdict Interim Interdict against Public Authority Caution-Interim Interdict Refused on Caution-Unemployment (Relief Works) Act 1920 (10 and 11 Geo. V, cap. 57), sec. 2. A county council having served notices

to enter upon lands in terms of the Unemployment (Relief Works) Act 1920, sec. 2, a note of suspension and interdict was brought by certain proprietors. The Lord Ordinary refused interim interdict, which was craved in the note, until the cause had been heard on answer. A reclaiming note was presented, and thereafter, but before the hearing in the Inner House, answers were lodged. The Court on consideration of the note and answers refused interim interdict hoc statu, but that only on condition of the respondents finding caution for any damage the complainers might instruct in consequence of the entry by the respondents on the complainers' lands. Fergusson Buchanan v. Dumbarton County Council, p. 39. Interdict - Trespass Title to Sue - Infringement of Right of Property Right to Interdict de plano without Proof of Possession-Regalia Minora Rights of Public-Whether Proprietor's Right Exclusive as against the Public Generally-Ferry. In an action of interdict against interference with a right of ferry at the instance of pursuers who produced as their titles ex facie valid conveyances of the right of ferry in their favour, against a defender who produced no competing titles and made no specific challenge of the right of the pursuers' authors, held (1) that the pursuers' titles were sufficient without proof of possession to entitle them to interdict; (2) that the right of ferry being regalia minora, and as such a proprietary right in the Crown or in those deriving right therefrom, the defence that the right of the pursuers was not exclusive of the rights of the public was irrelevant. London, Midland, and Scottish Railway Company v. Macdonald, p. 574. Interest-Action of Damages - Appeal to House of Lords-Judgment of Lord Ordinary Awarding Damages Restored Motion by Successful Appellants for an Award of Interest from the Date of the Lord Ordinary's Judgment - Court of Session Act 1808 (48 Geo. III, cap. 151), sec. 19-Expenses-Expenses Incurred in Court of Session-Question of Modification Reserved. The Court of Session Act 1808 (48 Geo. III, cap. 151) enacts-Section 19 "If upon hearing the appeal it shall appear to the House of Lords to be just to decree or adjudge the payment of interest, simple or compound, by any of the parties to the cause to which such appeal relates, it shall be competent to the said House to decree or adjudge the payment thereof as the said House in its sound discretion shall think meet." Circumstances in which the House of Lords (the Lord Ordinary's judgment awarding damages having been restored) found the successful appellants entitled to interest on the principal sum found due from the date of his Lordship's interlocutor; and ordained the respondents to pay to the appellants their costs in the House of Lords and in the Court of Session under a reservation of the question of modification, if any, of the expenses in the Inner

House as well as before the Lord Ordinary. Standard Oil Company of New York v. Clan Line of Steamers, Limited (Owners of s.s. "Clan Gordon "), p. 15. Interest. See Valuation Cases. Interest on Advances. See Revenue. Interim Aliment. See Husband and Wife. Interim Award of Compensation. See Workmen's Compensation. Interim Interdict. See Interdict. Interim Interdict against Public Authority. See Interdict.

Interim Interdict Refused on Caution. See Interdict.

Interpretation of "Loitering." See Justiciary Cases.

Interpretation of Proviso. See Workmen's Compensation.

Intrinsic and Extrinsic Objections. See Prescription.

Irregularity. See Bankruptcy. Irregularity of Procedure. See Arbitration.

Judgment of Lord Ordinary Awarding
Damages Restored. See Interest.
Judicial Factor-Tutor-Dative-Incapax-
Custody of Person - Appointment of
Nearest Male Agnate-Prior Appoint-
ment of Curator Bonis. In a petition by
the eldest son and two other children of a
widow incapax, who had been removed
without their consent by another of the
children to her (the latter's) own house,
and into her exclusive charge, and on
whose estate a curator bonis had been
appointed, for the appointment of the
eldest son as tutor dative, the Court
granted the petition under reservation,
of consent, of the prior appointment of
the curator bonis. Dick v. Douglas, p.
529.

Jurisdiction. See Reparation.
Jurisdiction of Court. See Contract.
Jury Trial. See Process.

Jus quæsitum tertio. See Property.
"Just and Equitable" Cause. See Com-
pany.

Justiciary Cases-Murder-Culpable Homicide - Drunkenness - Mental Unsoundness not Amounting to Insanity-Degree of Responsibility. In a trial on a charge of murder, direction to the Jury by the Lord Justice-Clerk (Alness) that aberration or weakness of mind at the time of the alleged crime, not amounting to insanity but sufficient to diminish the prisoner's responsibility from full to partial responsibility, and to render him only partially accountable for his actions, was sufficient, if established by the evidence, to reduce the quality of his act from murder to culpable homicide. H. M. Advocate v. Savage, p. 12.

Complaint-Relevancy Specification-Teacher Charged with Assaulting Schoolboy-Whether Necessary to Specify in Complaint the Relationship between the Accused and Person Assaulted, and that the Punishment Inflicted was Excessive-Review-Stated Case or Suspension-Review on Fact-Observations as to the Competency of Review on Fact by Way of Suspension. In a charge of assault against the head teacher of a b

school the complaint set forth that the accused, described therein as "school teacher,' "did on a specified date, in a classroom within the school at M, assault a certain boy aged six years, and did strike him on the face with his hands, and did beat him with a pair of tawse, and with his hands on the hips and thighs, whereby he was injured in his person. In an appeal by way of suspension against a conviction it was maintained that the complaint was irrelevant, on the ground that it failed to set forth that the alleged assault took place in the course of the administration of school discipline, and also that it omitted to state that the punishment given was in excess of that which disciplinary chastisement required and justified. Held that the form in which the complaint was stated was not such as to mislead or prejudice the accused in his defence; that it was sufficient to the relevancy of the complaint that the statement of the modus contained therein would, on criminal responsibility being established, constitute a crime; and suspension refused. M'Shane v. Paton, 1922 J.C. 26, 59 S.L.R. 265, commented on. Brown v. Hilson, p. 76. Justiciary Cases - Statutory Offence-Import Duty on Motor Cars-ExemptionCar to be Used Solely for the Conveyance of Goods or Burden in the Course of Trade or Husbandry - ContraventionEmployment of Car for Conveyance of Domestic Servants and Personal Luggage -Finance (No. 2) Act 1915 (5 and 6 Geo. V, cap. 89), sec. 13 (4). The Finance (No. 2) Act 1915 (5 and 6 Geo. V, cap. 89), enactsSection 13 (4)" Motor cars which are proved to the satisfaction of the Commissioners of Customs and Excise to be constructed and adapted for use, and intended to be used solely, as motor omnibuses or motor ambulances, or in connection with the conveyance of goods or burden in the course of trade or husbandry, . . . shall not be charged with the new import duty.. If it is shown to the satisfaction of the Commissioners of Customs and Excise that any motor car. . . has been and is being exclusively used for purposes which entitle it to an exemption from duty under this provision, the Commissioners may, subject to such conditions (if any) as they think fit to impose, repay any duty paid on the car . . . on importation." A shipbuilder, who was the proprietor of a farm, which he cultivated with the assistance of a farm manager who occupied the farm-house, visited it every year, residing when he did so in the mansion-house on the property. At the farm he kept a ton motor truck, the import duty on which he had recovered upon a declaration and undertaking signed by him that the truck would be used "solely in connection with the conveyance of goods or burden in the course of trade or husbandry.” In an appeal against a conviction under the Act for breach of this undertaking, held that the use of the truck for the convey

ance of his domestic servants and personal luggage between the farm and a pier some twelve miles from it was not a use in connection with the conveyance of goods or burden in the course of trade or husbandry within the meaning of section 13 (4) of the Finance (No. 2) Act 1915, and appeal refused. Lithgow v. Foster, p. 80. Justiciary Cases-Statutory Offence-Title to Sue-Duties on Carriages and Motors and Penalties in Connection therewith

66

Right of Procurator Fiscal to Sue for Fines, Penalties, and Forfeitures"Excise Penalties". Penalties on Summary Conviction"-Finance Act 1920 (10 and 11 Geo. V, cap. 18), sec. 13-Roads Act 1920 (10 and 11 Geo. V, cap. 72), secs. 1, 6, 12, 13. The Roads Act 1920 (10 and 11 Geo. V, cap. 72), sec. 1 (1), provides that the duties on licences for mechanically propelled vehicles shall be levied by county councils, and further enacts-Section 1 (2)

Every county council and their officers shall, as from the first day of January Nineteen hundred and twentyone, have within their county for the purpose of levying the duties aforesaid

the same powers, duties, and liabilities as the Commissioners of Customs and Excise and their officers have with respect to duties of excise, and to the issue and cancellation of licences on which duties of excise are imposed, and other matters under the Acts relating to duties of excise and excise licences, and all enactments relating to those duties and to punishments and penalties in connection therewith shall apply accordingly." The Registration and Licensing Order (7th February 1921), made in pursuance of section 13 (5) of the Roads Act, provides, paragraph (2) (a), that county councils "may delegate to such of their officers as they may select any of the powers and duties now exercised or performed by officers of Customs and Excise"; and also provides, paragraph 1 (2), that the expression "local taxation officer" means the selected officer of the council to whom powers or duties exercisable or performed by officers of Customs and Excise have been delegated by the council. In a summary prosecution in the Sheriff Court at the instance of the procurator-fiscal for a contravention of the Finance Act 1920, sec. 13, the Roads Act 1920, sec. 12, and the Regulations issued in pursuance of the lastmentioned Act, objection was taken on behalf of each of the accused to the procurator-fiscal's title to prosecute on the ground that under the terms of the Roads Act such prosecutions could only be instituted by county councils as coming in place of the Commissioners of Customs and Excise. The objection having been repelled and the accused convicted bills of suspension were brought by the parties found guilty. Held that inasmuch as the penalties for the offences in question were described in the sections of the Roads Act 1920 relating thereto as "penalties summary conviction" and not as "excise penalties," they might be the subject of prosecution at the instance

on

of the procurator-fiscal, and suspension refused. M Millan v. Grant, Rippie v.

Grant, p. 83. Justiciary Cases-Complaint-Competency -Failure to Specify Locus delicti-Summary Jurisdiction Act 1908 (8 Edw. VII, cap. 65), sec. 75. A complaint under the Roads Act 1920 of altering the identification number of a motor car contained no specification of the place where the alleged offence was committed. Held that the entire absence of any specification of the locus, such at least as to determine the jurisdiction of the Sheriff, amounted to a case of incompetency within the meaning of section 75 of the Summary Jurisdiction (Scotland) Act 1908, and conviction quashed. M'Millan v. Grant, Rippie v. Grant, p. 83.

Statutory Offence - Burgh — Magistrates - Powers - Boat Hirer's LicenceCondition--Whether ultra vires--Prohibition of Letting Boats for Hire on Sundays -Discretionary Power to Consider Local Circumstances-Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 304 (1). The Burgh Police (Scotland) Act 1892 enacts-Section 304-"Where and in so far as the seashore and strand of the sea, or of any tidal river so far as the tide flows, are within the boundaries of the burgh, subject to the rights of the Crown, with consent of the Board of Trade, and to any existing rights of property, the following enactments shall be applicable to the burgh:-1. No boat or vessel shall be let for hire by any person for the purpose of sailing or rowing for pleasure from the seabeach or any pier or jetty within the boundaries of the burgh except under licence from the magistrates, who shall have power to require that every boat or vessel let for hire as aforesaid shall be made good and seaworthy to their satisfaction, and to impose such other conditions in granting a licence as they may think necessary for the safety of the lieges. The magistrates of a burgh granted a licence to a boat hirer entitling him to let pleasure boats on hire within the burgh boundaries subject to certain conditions, one of which was that no boat should be let for hire on Sundays. In a prosecution of the boat hirer for breach of this condition it was pleaded that the condition was invalid as being ultra vires of the magistrates, not having been authorised by section 304 (1) of the Burgh Police (Scotland) Act 1892. The objection was repelled and the boat hirer convicted. On appeal, held that the magistrates were entitled in the exercise of their discretion, and in view of the facts which they held proved-(1) that on every day of the week except Sundays motor boats were constantly plying for hire and so immediately available in the event of accident, and (2) that there were other agencies for rescue on week days which were limited on Sundays to regard the condition in question as necessary in the interests of public safety, and conviction upheld, Blair v. Smith, p. 125.

--

Justiciary Cases-Statutory Offence-Food and Drugs-"Butter Mixture"-Article in Window and Labelled "Butter Mixture"- Request by Purchaser for "That Butter in the Window"-Sale of Food and Drugs Act 1875 (38 and 39 Vict. cap. 63), secs. 6 and 8-Butter and Margarine Act 1907 (7 Edw. VII, cap. 21), sec. 13 (1). The Sale of Food and Drugs Act 1875 (38 and 39 Vict. cap. 63) enacts-Section 6"No person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser under a penalty not exceeding £20. . . ." Section 8-Provided that no person shall be guilty of any such offence as aforesaid in respect of the sale of an article of food or a drug mixed with any matter or ingredient not injurious to health, and not intended fraudulently to increase its bulk, weight, or measure, or conceal its inferior quality, if at the time of delivering such article or drug he shall supply to the person receiv ing the same a notice, by a label distinctly and legibly written or printed on or with the article or drug, to the effect that the same is mixed." The Butter and Margarine Act 1907 (7 Edw. VII, cap. 21) enacts-Section 13-"(1) For the purposes of the Sale of Food and Drugs Acts and this Act the expression margarine' shall mean any article of food, whether mixed with butter or not, which resembles butter and is not milk-blended butter." In a complaint charging a grocer with a contravention of the Food and Drugs Acts it was proved that he had exposed for sale in the window of his shop margarine mixed with a certain percentage of butter which was ticketed "Butter Mixture, 1s. 2d. per lb." An inspector under the Food and Drugs Acts having seen the article thus exposed for sale in the window and noticed the terms of the ticket with which it was labelled, entered the shop and asked for "one pound of that butter in the window," which was accordingly supplied to him." The SheriffSubstitute acquitted the accused on the ground that the article which the purchaser had demanded was that with which he had been supplied, and that accordingly no offence under the Sale of Food and Drugs Acts had been committed. Held on appeal (diss. the Lord Justice-General) that the purchaser was entitled to assume that the article demanded was some form of butter, and that inasmuch as the commodity with which he had been supplied was not butter, an infringement of the Act had been committed. Robertson v. M'Kay, p. 129.

Statutory Offence – Betting - Suspected House - Search Warrant - Unopened Letters-Prospective Incompetent Evidence - Suspension Competency Undertaking of Prosecutor to Depart from Charge if Letters Seized Illegally. A warrant was granted authorising the police to enter a house on suspicion that it was being used as a betting-house, and to seize all documents relating to betting

which should be found on the premises. After the warrant had been executed and a complaint had been served upon the occupiers of the house for a contravention of the Betting Acts, a bill of suspension was brought by the accused in which they craved the Court to suspend the seizure and retention of certain letters alleged to have been opened by the police, and further to suspend the use of these letters in any way for the purpose of proceedings in Court. The prosecutor in his answers undertook to depart from the charge if it should be decided by the magistrate in the course of the trial that the seizure of the letters by the police had been illegal. Held that as the question of the admissibility of the letters as evidence could be raised in the police court it was undesirable that the application should be entertained by the High Court at this stage; that in view of the prosecutor's undertaking to depart from the charge if the evidence showed that the letters were seized unopened, the suspension was entirely unnecessary; and bill refused. Question, whether in the circumstances the suspension was competent. Paterson v. Macpherson, p. 155. Justiciary Cases-Suspension and Liberation Summary Procedure Statement by Prisoner before Sentence Duty of Presiding Judge. A bill of suspension and liberation was brought by two young men who had been sentenced to terms of imprisonment for housebreaking on the ground that no opportunity had been given them of making statements on their own behalf before being sentenced. Held that it was a fundamental principle of criminal administration that a convicted person before sentence was pronounced should be asked by the presiding judge whether he desired to say anything on his own behalf, and case remitted to the Sheriff-Substitute for report. Ewart and M'Quillan v. Strathern, p. 328.

Procedure--Summary Complaint— Relevancy-No Objection Taken to Relevancy of Complaint-Charge Dismissed by Sheriff Substitute without Hearing Argument on Question of Relevancy— Competency. In a summary prosecution in the Sheriff Court, in which the complaint specified two charges in connection with the contravention of the regulations regarding the use of limited trade licences for motor vehicles, no objection was taken by the accused, who was represented by an agent, to the relevancy of the charge. The accused pleaded guilty to one of the charges and not guilty to the other. The Sheriff-Substitute, after having made avizandum, dismissed both charges as irrelevant without hearing any argement as to whether they were relevant or not. Held that the SheriffSubstitute was not entitled to dismiss the charges without hearing the prosecutor on the question of relevancy. Waugh v. Paterson, p. 366.

Statutory Offence - Motor CarLimited Trade Licence-Contravention of Terms of Licence-Application of Regula