presented against this interlocutor. On 19th March 1910 the judicial factor lodged a claim in which he founded on an assignation by A, in favour of the testamentary trustees whom he represented, prior in date to that in favour of the bank, and claimed to be ranked and preferred to a certain extent on any sum to which the bank should be found entitled. Held that the interlocutor of 22nd January 1910 having become final, the claim for the judicial factor could not be received either by the Lord Ordinary, or in the Inner House on a reclaiming note against the interlocutor of the Lord Ordinary rejecting the claim. Dymond v. Scott, &c., November 23, 1877, 5 R. 196, 15 S. L.R. 96; Hall's Trustees v. Macdonald, March 8, 1892, 19 R. 567, 29 S. L.R. 465, distinguished. Steele (Ramsay's Judicial Factor) v. Ker and Others (Smith's Trustees), p. 743. Process Divorce Oath de Calumnia Commission. A ship steward, the pursuer in an action of divorce, before the action was called in Court had to start on a voyage which would necessitate his absence for at least a year. In an application at his instance the Court granted commission to take his oath de calumnia (and also his evidence) to lie in retentis-previous notice of the commission being given to the defender and proof thereof exhibited to the commissioner. Neill, Petitioner, p. 830. Vacation Bill Chamber-PetitionCompany-Statute-Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 69), sec. 135. The Companies (Consolidation) Act 1908, sec. 135, enacts-"The Court having jurisdiction to wind up companies registered in Scotland shall be the Court of Session in either Division thereof, or in the event of a remit to a permanent Lord Ordinary, that Lord Ordinary during session, and in time of vacation the Lord Ordinary on the Bills." In a petition for the winding up of a limited company under the above section, held (1) that a special adjournment of the Court on account of His Majesty's coronation was equivalent to vacation, and (2) that the Lord Ordinary on the Bills had therefore jurisdiction to entertain the petition. The London County and Westminster Bank, Limited, Petitioners, p. 884. Jury Trial-Issue. In an action of damages by a tenant against his landlords for injuries alleged to have been caused by the defective condition of the premises let, an issue of fault in common form was proposed. The Court allowed an issue "Whether the pursuer, while tenant under the defenders, was injured.. through the fault of the defenders." Dickie v. Amicable Property Investment Building Society, p. 892. Multiplepoinding Trust Competency-Double Distress. A father died survived by a widow and a daughter. Thereafter his widow, who had been his executrix, died. The curator bonis of the daughter raised an action of count and reckoning and payment against the widow's trustees and executors, in which he averred that the widow had immixed her husband's estate with hers, and that it formed the bulk of the estate of which she died possessed. This action was signeted after, but called before, an action of multiplepoinding whereby the widow's trustees and executors, as real raisers, threw into Court the whole estate under their administration as such, and called as defenders the daughter and her curator bonis and the whole individual beneficiaries under the widow's settlement. They maintained that this procedure was justified on the ground that they were threatened with legal proceedings by the beneficiaries under the widow's will if they admitted the claim of the curator bonis. The Lord Ordinary (Dewar) repelled the defender's plea to the competency of the multiplepoinding, and sisted the action of count, reckoning, and payment in hoc statu. The Court sustained the defender's plea to the competency of the multiplepoinding, and recalled the sist of the action of count, reckoning, and payment. Glen's Trustees v. Glen and Others. Miller (Glen's curator bonis) v. Glen's Trustees, p. 931. Process. See Company. Professional Charges. Client. See Agent and Profits of Trade. See Inland Revenue. Proof-Admissibility of Parole Evidence to Explain Written Document - Ambiguity-Assignation in Security of Advances- -Assignee Acting as Individual or as Agent. Robertson granted an assignation of two policies of insurance on his life in favour of "James Riddell, agent, Clydesdale Bank, Leith Walk, Edinburgh." The assignation was ex facie absolute, but it was accompanied by a letter addressed by Robertson to Riddell which bore that the assignation was granted in security of advances made or to be made by Riddell to Robertson. Robertson subsequently conveyed his estate to a trustee for behoof of his creditors. The trustee brought an action to have Riddell ordained to re-transfer the policies to him. Riddell averred that the assignation was granted to him as agent of the bank, and that advances had been made by him as agent to Robertson on the faith of the assignation, and he maintained that he was entitled to hold the policies until the debt due to the bank had been repaid. The Court allowed a proof pro ut de jure (per the Lord Justice-Clerk, Lord Ardwall, and Lord Dundas-Lord Salvesen reserving his opinion) on the ground that the assignation and back-letter were ambiguous, and that Riddell was entitled to prove the facts averred by him with a view to showing that the assignation was granted in his favour as agent of the bank, and (per Lord Salvesen) on the ground that Riddell was entitled to retain the policies until all advances made by him on the faith of the assignation were repaid, whether the advances were made by him out of his own funds or out of the funds of the bank. Martin (Robertson's Trustee) v. Riddell, p. 29. Proof-Contract — Innominate Contract – Writ or Oath-Promise-Mandate-Rei interventus-Agreement to Leave Money by Will. The finance committee of a church, as trustees for behoof of it, raised an action against the executor-dative of a deceased lady for declarator that he was bound to pay them a sum of £6000 odds. They averred that the deceased, by representing that she would be responsible for the increase in cost, had induced them to give orders for the erection of a church on a more expensive scale than they had originally proposed; that she had given money from time to time towards the increased cost; that she had, however, been unable to give out of her capital owing to it being settled in England, and consequently had undertaken to leave the necessary money by her will. Held that these averments did not amount to an averment of mandate, or of any onerous contract, but merely of a promise to pay or leave by will, and could only be proved by writ. Millar v. Tremamondo, January 29, 1771, M. 12,395; and Edmonston v. Bruce or Edmonston, June 7, 1861, 23 D. 995, followed. Smith and Others v. Oliver, p. 86. Evidence-Admissibility of Evidence as to Representations — Evidence of a Party to whom Representations Made Similar to those Alleged to have been Made to Another. In an action raised for implement of a contract for the purchase of the furniture of a hotel by the defender, an incoming tenant, from the pursuer, an outgoing tenant, parties gave conflicting evidence as to representations by the pursuer on the subject of the furniture. The Lord Ordinary preferred the evidence of the defender, finding it corroborated by the evidence of B, who acted for the proprietor of the hotel in finding a new tenant, and who deponed that with reference to the furniture he received from the pursuer a statement which coincided with the representations deponed to by the defender. Opinion (per Lord President) that the evidence of B was inadmissible. Oswald v. Fairs, p. 279. The Right in Security-Loan-Writ or Oath. A builder acquired certain subjects in feu, the title to which he took in his son's name. The builder became bankrupt, and his trustee raised an action against the son to have him ordained to convey to him these subjects. pursuer averred that the bankrupt was insolvent at the time of the conveyance, that he, the trustee, represented a prior creditor, and that the conveyance was without price or other consideration. The defender averred that the conveyance was in security of certain advances for buildings to be erected and since erected on the ground, and further, that he had undertaken the personal obligation in a bond and disposition in security over the subjects, the money being advanced to his father by the lender. The defender accordingly maintained that he was entitled to retain the subjects until these advances were repaid, and he was relieved of the obligation under the bond. The pursuer maintained that the alleged loans could only be proved by writ. The Court before answer allowed the parties a proof habili modo of their averments. Opinion (per the Lord President)-"It seems to me that while it is perfectly well settled by the law of Scotland that when a loan is put forward as an isolated transaction it can only be proved by writ or oath, yet that when you have a going series of transactions between parties, then there are many cases in which the proof is not necessarily so limited as it is in the case of an isolated transaction. I do not think we can say more, because I am far from saying that the moment you get into a series of such transactions the door is thrown open, and everything may be proved by parole. I think it all becomes a question of circumstances, and it becomes, I am glad to say for the credit of one's own law, a question, not of absolute rule, but almost of common sense that is to say, whether the proof is such as would be the natural proof under the circumstances of the transaction alleged." Chrystal (Smith's Trustee) v. Smith, p. 578. Proof - Foreign Law – Allowance of Proof Averment of Foreign Law Relevancy of Averment. A firm of New York stockbrokers wrote the following letter to a Scottish insurance company:-"Dear Sirs, We beg to advise you that we are holding for your account an interest of 13,000 dols. in the Louisville and Nashville, Atlanta, Knoxville and Cincinnati Division, 4 per cent. Bond Syndicate, on account of which 95 per cent. has been paid." The assignees of the insurance company having brought an action against the New York firm for delivery of the bonds above mentioned, the latter made this averment-"The said letter is not under seal and does not express that the defenders received any consideration for the same. Upon these grounds the said letter is invalid according to the law of the State of New York." The Lord Ordinary allowed a proof of this averment. Opinion (per Lord Salvesen) that in order to entitle a party to proof on a question of foreign law he must make distinct and pointed averments as to the alleged difference between the foreign law and the law of Scotland, and that accordingly the above averment was irrelevant and should not have been remitted to probation. Stuart v. Potter, Choate, & Prentice and Others, p. 657. See Contract-Interdict-Husband and Wife-Justiciary Cases-Process. Property-Title-Bounding Title-RoadMedium filum. In a feu charter the ground feued was described as "on the west side" of Q. street, and also as bounded by Q. street "on the east parts." Held (1) that if Q. street was a private road, then, following the general rule of construction applicable to feu charters, 66 the whole of the street was excluded from the grant, and (2) that if Q. street was a public road, in which case the general rule was not absolute, then the presumption stated in Dobbie v. Ayr Magistrates, May 18, 1892, 19 R 791, 29 S.L.R. 670, viz., that the grant was ad medium filum of the road, did not apply owing to the special indications in the case, viz. (a) the statement that the ground was on west side" of Q. street, (b) that the measurement given in the charter pointed to the western line of the road being the limit, and (c) that when a railway company was altering the road by carrying it over the railway on a bridge no claim for land was made against the railway company, and the whole of Q. street was therefore excluded from the grant. Houston v. Barr, p. 262. Property-Exclusive Right and Use-Contract-Notes-Searcher-Public Records Interdict Confidentiality - Original Notes by Searcher Employed to Examine and Take Excerpts from Public Records. A searcher of records who was employed to make searches in public records in order to obtain and furnish excerpts of all entries relating to persons of a certain name, made shorthand notes of the entries, and subsequently transcribed these notes and delivered these transcriptions to the person who employed him. In an action by the latter against the searcher for delivery of the shorthand notes and for interdict against communication of them to any person without the pursuer's permission, held, after a proof, (1) that the notes belonged to the defender, and (2) that no actual or apprehended injury to the pursuer being involved by any use the defender proposed to make of the notes, interdict ought not to be granted. Earl of Crawford v. Paton, p. 870. Real Burden-Disposition of School to School Board under Condition as to Use Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), sec. 38. A kirksession transferred a parochial school to a school board, under section 38 of the Education (Scotland) Act 1872, by disposition which bore to be granted "under the real lien and burden of the use by the said kirk-session . . . of school-rooms at such times and for such purposes as may be deemed necessary when said rooms are not required for the ordinary purposes of education." Held that the condition as to use by the kirk-session was not a real burden on the subjects disponed. Kirkintilloch Kirk - Session v. Kirkintilloch School Board, p. 926. See Husband and Wife. Public Burdens. See Succession. land) Act 1845 (8 and 9 Vict. cap. 33), sec. 70. "The Court has to find what the parties must be taken to have bought and sold respectively, remembering that no definition of minerals' is attainable, the variety of meanings which the use of the word 'minerals admits of being itself the source of all the difficulty. It must be taken that what the Railway Company intended to get and the landowners intended to give was the landunder the line, for the object was to give, not a wayleave, but a support. I say this, speaking generally. Upon the other hand, if anything exceptional in use, character, or value was thereunder, that was reserved, provided it could be included under the word 'minerals' as understood in the vernacular of the mining world and the commercial world and the landowner."- Per the Lord Chancellor. Circumstances in which a fireclay was held to be a mineral. Caledonian Railway Company v. Glenboig Union Fireclay Company, Limited, p. 526. Railway-Mines and Minerals-Freestone -Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33), sec. 70. The lessee of the freestone in an estate through which a railway passed claimed right to work the freestone under the railway line as being excepted from the grant to the company under section 70 of the Railways Clauses Consolidation (Scotland) Act 1845. He averred--"(1) The said freestone rock does not form the substratum of the soil and is not the common rock of the district in which the respondent's quarry is situated. On the contrary, it is a fine red sandstone of exceptional character both in point of evenness of grain and composition. Besides being adapted for the finest kinds of building work, it is specially suitable for use in the form of grindstones and for many other commercial purposes for which ordinary or common sandstone is unsuitable. It is thus of great commercial value." And (2) Such rock as that here in question was at that time" (1852, the date when the company acquired the subjects)" universally recog nised and admitted in the mining and commercial world and by all railway companies, and by all proprietors in or through whose lands railway companies had occasion to construct railway lines and relative works, to be a mineral within the meaning and for the purpose of the statute." Held that it had been decided by the case of the North British Railway Company v. Budhill Coal and Sandstone Company, 1910 S. C. (H. L.) 1, 47 S. L. R. 23 (rev. Court of Session, 1909 S.C. 277, 46 S. L. R. 178), that freestone was not within the exception contained in section 70 of the Railways Clauses Consolidation (Scotland) Act 1845, and that the averments were irrelevant. Caledonian Railway Company v. Symington and Others, p. 539. Mines and Minerals-Notice of Inten tion to Work, with Counter-Notice to Leave Unworked, as Constituting Contract to Pay Compensation - Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33), sec. 71. The lessee of the freestone in an estate through which a railway passed gave notice to the company in terms of sec. 71 of the Railways Clauses Consolidation (Scotland) Act 1845 that he intended to commence working the freestone under the line. The company gave notice that they desired certain areas to be left unworked, and expressed their willingness to pay compensation. By nomination and submission arbiters and an oversman were appointed to settle the question of compensation. The lessee ceased or altered his quarrying operations. Held, in an action of suspension and interdict, that the notice and counternotice did not constitute a contract entitling the lessee to compensation and debarring the railway company from claiming that they themselves were the owners of the freestone under their line, inasmuch as it did not fall within the exception of "mines of minerals" contained in section 70 of the Railways Clauses Consolidation (Scotland) Act 1845. Caledonian Railway Company v. Symington and Others, p. 539. Railway--Railway & Canal Commissioners -Demurrage on Waggons-Siding Rent -Liability of Traders for Demurrage and Siding Rent. In an application by traders against certain railway companies, brought in consequence of claims made by the railway companies against the traders for undue detention of the companies' waggons and sheets, and for undue occupation of their sidings by waggons belonging to traders, held that the railway companies were entitled to charge for such detention of their own waggons and sheets and occupation by traders' waggons, both before conveyance by the railway company and after such conveyance, on certain conditions as to free time for loading and unloading, and at certain rates prescribed by the Court, but that traders were not liable for delay during the period of conveyance due to fog or snow or any similar cause, or to fault or error of the railway companies' servants. Caledonian Railway Company and Others v. Coltness Iron Company and Others. John Watson, Limited, and Others v. Caledonian Railway Company and Others, p. 1065. Railway and Canal Commissioners --Traders' Waggons-Reasonable Facilities-Right of Traders to Put Waggons on the Line irrespective of the Sufficiency of Company's Waggons Available-Railway and Canal Traffic Act 1854 (17 and 18 Vict. cap. 31), sec. 2. Held, in an application at the instance of certain traders, that the applicants were not entitled to place on the railway companies' lines such a number of waggons as they considered necessary for their traffic irrespective of the sufficiency of the supply of waggons provided by the company for that purpose, but that the number of traders' waggons allowable on the line, as a reasonable facility for the traffic of any particular trader, was a question of circumstances in each case. Caledonian Railway Company and Others v. Coltness Iron Company and Others. John Watson, Limited, and Others v. Caledonian Railway Company and Others, p. 1065. Railway. See Arbitration Burgh Reclaiming Note. See Expenses-Process. Reference to Man of Skill. See Contract. Remit to Court of Session. See Sheriff. Removing Notice of Termination of Tenancy - Validity of Notice-Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 37, and First Schedule, Rule 112, Form J-Removal Terms (Scotland) Act 1886 (49 and 50 Vict. cap. 50), sec. 4. The Sheriff Courts (Scotland) Act 1907, sec. 37, enacts-"In all cases where houses, with or without land attached, not exceeding 2 acres in extent, . . . are let for a year or more, notice of termination of tenancy shall be given in writing to the tenant by or on behalf of the proprietor, or to the proprietor by or on behalf of the tenant,..: Provided that the notice provided for by this section shall be given at least forty days before the fifteenth day of May, when the termination of the tenancy is the term of Whitsunday, and at least forty days before the eleventh day of November when the termination of the tenancy is the term of Martinmas." Rule 112 of the First Schedule enacts-"Notices under section 37 of this Act shall be as nearly as may be in the Form J hereto annexed. . . .' Form J is-"You are required to remove from at the term of Whitsunday [insert year] [or Martinmas, as the case may be, inserting after the year the words, being the 15th day of May or the 11th day of November, or the 28th day of May or the 28th day of November, as the case may be]." Held (diss. Lord Johnston) that a notice of removal given to a tenant under section 37 of the Sheriff Courts (Scotland) Act 1907, forty days before 15th May 1910, requiring him to remove "at the term of Whitsunday 1910," but which did not specify that Whitsunday meant the 28th and not the 15th of May, was a good notice, no special paction between the tenant and the proprietor with regard to notice of removal being averred. Campbell's Trustees v. O'Neill, p. 115. See Process. Rent or Value. See Valuation Cases. Reparation-Actionable Wrong-AssaultRemoval of Objectionable Person from Hotel Premises Violence Necessary Violence-Degree of Violence Allowable. Opinion (per the Lord Justice-Clerk) that violence used by a hotelkeeper or his servants in removing from the premises a person who was misbehaving was not an assault, or contrary to law, unless used in a degree which was excessive or unnecessary. Cook v. Paxton, p. 7. Reparation-Negligence-Personal Injury Ice on Street Failure to Regulate Flow of Fountain-Relevancy. A woman slipped on a piece of ice which had formed on the pavement near a fountain, and fell, sustaining fatal injuries. Her husband and certain of her children raised an action against the magistrates of the city, who had sole control of the fountain and the cleansing of the streets, in which they averred that it was the defender's business so to regulate the fountain as to prevent an overflow, and that the ice must have been caused by an overflow. Held-rev. the decision of the Lord Ordinary (Dewar) that the pursuers' averments were irrelevant. Per the Lord President-"In such a case I can only imagine negligence coming under one or other of two heads-either that there was some structural defect in the fountain, which made overflows probable, or that the fountain having for some temporary or fortuitous cause overflowed, this dislocation of the ordinary arrangements had been brought to the knowledge of the authorities or had existed for such a length of time that they ought to have known, and that they had failed to remedy the temporary defect." Statement of law by Baron Pigott in Shepherd v. Midland Railway Company, 25 L.T. 879, approved. O'Keefe v. The Lord Provost and Magistrates of Edinburgh, p. 50. Negligence Relevancy Boy of Twelve Ordered to Yoke Horse Alleged to have been Known to be Addicted to Kicking, and Fatally Kicked while doing 80. In an action of damages the pursuer averred that his son, aged 12, was occasionally employed by the defender and was ordered by him to help in yoking horses to a threshing machine driven by horse power, and to yoke a certain horse to a beam, for which purpose it was necessary to stoop between the horses heels and the beam; that in performing this operation the boy was killed by a kick from the horse; that the defender knew the horse was addicted to kicking; that "the defender in ordering the deceased to yoke the said horse as aforesaid was negligent, and the deceased was killed owing to the defender's negligence." Held (aff. judgment of Lord Dewar) that the pursuer's averment of negligence though in general terms was relevant, and issue approved. Observations (per the Lord President and Lord Kinnear) upon liability for negligence being set up by failure to perform a duty. Clelland v. Robb, p. 205. Slander-Issue-Innuendo. A milkman brought an action of damages for slander against his employers. He averred that there had been a dispute between their manager and him as regards a balance alleged to be due by him, that in consequence thereof he did not return to his work the next day, and that a foreman, acting on the manager's instructions, came to his house and addressed him in the following words"I'll give you a piece of advice. If you are wise you'll turn out to work, because I have been instructed by" the manager "to place the matter in the hands of the police." He maintained that these words were relevant to support an innuendo of embezzlement on his part. The Court refused an issue, holding that the words complained of were not slanderous. M'Adam v. City and Suburban Dairies, Limited, p. 318. Reparation-Slander-Master & ServantLiability of Master for Slander Uttered by Servant-Scope of Employment. A milkman brought an action of damages for slander against his employers. He averred that there having been a dispute between their manager and him as regards a balance alleged to be due by him, a foreman, on the manager's instructions, had addressed him in the following words:-"I'll give you a piece of advice. If you are wise you'll turn out to work, because I have been instructed by" the manager "to place the matter in the hands of the police." There was no averment as to what the manager's powers and duties were, but the pursuer averred that the foreman in making the statement, on the manager's instructions, was acting as the defender's servant for the purpose of intimidating him into remaining at his work, and thereby preventing him from disclosing their system of trading which was unfair to their customers. The Court, assuming that the words complained of were slanderous, held that the foreman in uttering them, upon the instructions of the manager, was not acting within the scope of his employment, and that accordingly the action against his employers was irrelevant. M'Adam v. City and Suburban Dairies, Limited, p. 318. Negligence-Master and ServantCommon Law Relevancy - Defective System. A workman was employed in the superintendence of a travelling steam crane which ran on rails, and was used for transporting timber from one end of a woodyard to the other. While endeavouring to steady some timber which the crane was carrying he was injured by being crushed between the crane and the stopblock at the end of the rails. In an action of damages at common law he averred that the accident was caused by the fault of his employers in having too few men to work the crane, and especially by the want of a banksman, who, he averred, was invariably employed to scotch such cranes. (rev. judgment of Lord Cullen, Ordinary) that the action was irrelevant in respect that there was no sufficient averment of the way in which, or the time when. the banksman could have acted so as to avoid the accident. M'Manning v. Easton Gibb & Son, Limited, p. 323. Held |