Nominal Damages. See Expenses. Nuisance. See Expenses. Occupation. See Assessment. Parent and Child-Affiliation-Period of - Minor-Contract-Minor in Scotland, with Father Resident in Ireland-Enorm Lesion. A minor whose father was resident in Ireland, and who while employed as a labourer in Scotland had been injured by an accident arising out of and in the course of his employment, agreed, without consulting his father, to accept compensation in ignorance of the fact that he had a ground of action for damages at common law against his employers. Held (1) (rev. judgment of Lord Ormidale, Ordinary) that the minor, being forisfamiliated and with his father resident abroad, was entitled to enter into the agreement to accept compensation, but (2) that he was entitled to reduce the agreement on the ground of enorm lesion. Opinion (per Lord Salvesen) that even if contracts made by a minor which were incident to his employment might be good, the agreement in question was not incident to his employment. M'Feetridge v. Stewarts & Lloyds, Limited, p. 505. Filiation-Proof-Intercourse Subsequent to Date of Conception-Denial by Defender of Intercourse. In an action of filiation where the parties were living in the same neighbourhood at the date of the conception, but no meeting was proved to have occurred, held that proof of intercourse at a date subsequent there. to, together with the defender's denial of such intercourse, was sufficient corroboration of the pursuer's story. Florence v. Smith, p. 776. See Jurisdiction-Succession. Parole Evidence. See Proof. Partnership-Cautioner-Contract-Disso lution-Relief-Extinction and Discharge of Obligation under Partnership Bonds after Withdrawal from Partnership. A became a member of an association, the object of which was to acquire heritable and personal property, and was appointed a trustee for the association. In 1901 A retired, having found a substitute member, in terms of the original copartnership agreement. At the time of his withdrawal the association had existing liabilities to the creditors in certain bonds, for which A was liable as one of the borrowers jointly and severally with the other members of the association. A obtained a bond of relief from the other members, by which they undertook to relieve him from any claim which might be made by any creditor under any bond, &c., signed by him on behalf of the association. After his withdrawal the bonds which he had signed were renewed, and also, by desire of the members of the association, were assigned by the original creditors to new creditors. In 1912 A brought an action against the members of the association and the representatives of deceased members, asking to have them decerned to relieve him by paying up the bonds or by giving him money to pay them. Held (1) that the pursuer having become a party to the bonds as a principal debtor could not escape liability by merely withdrawing from the company, and that he was still a principal debtor and not merely a cautioner; and (2) that the renewal and assignation of the bonds were transactions within the scope of the company's business, and that in any event the question of their validity could not affect A's liability in the original bonds. Action dismissed as irrelevant. Roughead v. White, p. 234. Partnership-Fraudulent Sale by Partner of Partnership Assets-Re-purchase from Party who Bought in bona fide without Notice of Trust. Where in breach of a partnership agreement, and unknown to his copartner, a partner disponed land belonging to the firm to a bona fide purchaser for value and subsequently bought it back for himself, held he was a trustee for the firm and must account to date for his intromissions. Gordon v. Holland, Holland v. Gordon, p. 954. Parts and Pertinents. See Property. Patent-Infringement--Damages--Measure of Damages. In an action of damages brought by a manufacturing firm who held a patent for improvements in centrifugal machines against another manufacturing firm for damages arising out of the sale by them of machines which infringed the pursuers' patent, held that while the measure of the pursuers' damages was prima facie the profit they would have made if they had effected the sales of the pirated articles themselves, that amount was subject to diminution in so far as the defenders had proved that the pursuers could not themselves have effected the sales of the pirated articles at their usual profit, or that the sales of the pirated articles were due to the special exertions of the defenders, and was subject to increase in so far as the pursuers had proved that they had been compelled to sell the patented article at a lower price than usual owing to the unfair competition of the defenders. Observations (per Lords Dundas and Salvesen) on methods of assessing damages in cases of infringement of patents. Watson, Laidlaw, & Company, Limited, v. Pott, Cassels, & Williamson, p. 525. Penalty or Liquidate Damages. See Contract. Personal Injury. See Title to Sue. Police Court. See Justiciary Cases. enacts that "no person shall be held to have acquired a settlement in any parish in Scotland by residence therein unless such person shall . . . have resided for three years continuously in such parish. K., who was born in the parish of W., went to reside in the parish of A. in September 1906. He got a job there as a coal-heaver, which afforded him steady employment except in the summer months of each year. He left A. in July 1907, and went into training with the Militia for three or four weeks, and thereafter was engaged in harvesting work for six or seven weeks at a distance from A. He returned to A. in October 1907 and took up his old employment. In the summer of 1908 he was absent from A. for more than three months, the first three weeks of which he spent in training with the Militia, and during the remainder of the time he was engaged in agricultural labour. He returned to A. in October 1908, and from that date until 27th June 1910, when he became chargeable, he was only absent therefrom for two or three days. Held that K. had not acquired a residential settlement in the parish of A., in respect that he had not resided there for three years continuously within the meaning of the Poor Law (Scotland) Act 1898, sec. 1, and that W., the parish of his birth, was accordingly liable for his support. Wigtown Parish Council v. Ayr Parish Council, p. 21. Poor's Roll. See Sheriff. Powers. See Judicial Factor-Sale. Principal and Agent-Authority Implied -Custom of Trade-Architect's Power to Employ a Measurer. There is no rule of law that by custom of trade an official architect who has received no instructions on definitely settled plans to proceed with a particular work has implied authority from his principal to engage the services of a measurer. Black v. Cornelius, January 24, 1879, 6 R. 581, 16 S.L.R. 475, distinguished. Alexander Knox & Robb v. Scottish Garden Suburb Company, Limited, p. 561. Responsibility of Principal-Fraud of Agent. A principal is liable in damages for the fraud of his agent, whether benefited thereby or not, provided the agent is acting within the scope of his employment. In a case where a clerk, purporting to act on behalf of his employer, a solicitor, obtained control of and embezzled the property of a client, held that the fact that the clerk was apparently invested by his employer with power to act for him was sufficient to make the employer responsible for his fraud. Barwick v. English Joint Stock Bank (1867, L.R. 2 Ex. 259), commented on and explained. Lloyd v. Grace, Smith, & Company, p. 606. Privilege. See Reparation. Procedure. See Election Law. Process-Divorce - Adultery-Intimation of Action to Person with whom Adultery Alleged-Act of Sederunt, 17th July 1908, sec. I. The Act of Sederunt of 17th July 1908, enacts, sec. 1-"In every action of divorce on the ground of adultery in which appearance has not been entered, and in which the person with whom the defender is stated to have committed adultery has not been cited as a codefender, the Lord Ordinary before whom the action depends shall, before fixing a diet of proof, unless cause be shown to the contrary, appoint intimation to be made to such person in the form, or as nearly as may be in the form, contained in the schedule hereto annexed... Intimation was dispensed with by the Lord Ordinary where the woman with whom adultery was said to have been committed was not cited as a co-defender, but where a letter from the woman was produced acknowledging the truth of the charges contained in the summons and intimating her intention not to defend. Thomson v. Thomson, p. 8. Process - Sheriff – Appeal-Competency River-Rivers Pollution Prevention Act 1876 (39 and 40 Vict. cap. 75), sec. 11--Appeal by Special Case against Interlocutory Judgment Leave to Appeal · Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 28 (c). The Rivers Pollution Prevention Act 1876 (39 and 40 Vict. cap. 75), sec. 11, enacts-"If either party in any proceedings before the County Court under this Act feels aggrieved by the decision of the Court in point of law or on the merits or in respect of the admission or rejection of any evidence, he may appeal from that decision to the High Court of Justice. The appeal shall be in the form of a special case to be agreed upon by both parties or their attorneys, and if they cannot agree, to be settled by the judge of the County Court upon the application of the parties or their attorneys. Subject to the provisions of this section, all the enactments, rules, and orders relating to proceedings in actions in County Courts, and to enforcing judgments in County Court and appeals from decisions of the County Court judges, and to the conditions of such appeals, and to the power of the Superior Courts on such appeals, shall apply to all proceedings under this Act, and to an appeal from such action, in the same manner as if such action and appeal related to a matter within the ordinary jurisdiction of the Court. The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 28, enacts-" Appeal to Court of Session.-Subject to the provi. sions of this Act, it shall be competent to appeal to the Court of Session against a judgment of a sheriff-substitute or of a sheriff, but that only if . . . the interlocutor appealed against is a final judgment, or is an interlocutor-... (c) against which the sheriff or sheriff-substitute, either ex proprio motu or on the motion of any party grants leave to appeal: Provided that any exclusion or allowance of appeal competent under any Act of Parliament in force for the time being shall not be affected by this or the preceding section.' Where a party to an action under the Rivers Pollution Prevention Act 1876 applied to the Sheriff to settle a special case, under section 11 of the Act, for appeal to the Court of Session against an interlocutory judgment of the Sheriff, and the Sheriff settled the case, the Court held (diss. Lord Salvesen, who held the appeal competent without the leave of the Sheriff) that the provisions of section 28 (c) of the Sheriff Courts (Scotland) Act 1907 applied to an appeal by way of special case under section 11 of the Rivers Pollution Prevention Act, 1876, that the appeal was therefore incompetent unless the leave of the Sheriff had first been obtained, and that the party had not obtained the leave of the Sheriff by merely applying to him to settle the special case and his settling it. Dumfries County Council v. Langholm Magistrates, p. 209. Process--Record-Amendment-Failure to Pay Opponent's Expenses-Absolvitor. Dougall v. Caledonian Railway Company, p. 220. Mandatory Foreign Appeal Defender Abroad in British Dominions. Where a defender, who had been assoilzied in an action in the Sheriff Court, had since then gone to South Africa on business, but was still within the jurisdiction of a British Court, the Court refused in hoc statu to ordain him to sist a mandatory to defend the action in an appeal. Florence v. Smith, p. 267. Reparation-Proof or Jury Trial— Condescendence Containing Averments of Two Separate Wrongs, Öne Affecting Some only of the Pursuers-Only Issue Proposed Relating to First Wrong-Averments of Second Wrong likely to mislead Jury. The wife and children of а deceased workman brought an action against a doctor for having wrongfully without their consent made a post mortem examination on the body of the deceased. The pursuers also averred that in consequence of the manner in which the defender had performed the examination, particularly in removing and destroying certain parts of the body, some of them had been put to unnecessary expense in obtaining compensation under the Workmen's Compensation Act. The only issue proposed for the trial was whether the defender had "wrongfully made a post mortem examination and dissection of the body" of the deceased. The pursuers having declined to amend their record by deleting these averments, the Court, on the ground that the averments were likely to mislead the jury, sent the case to proof before a judge. Hughes v. Robertson, p. 268. --Reclaiming Note-Competency-Suspension-Caution-Effect of Offer to Find Caution-Personal Bar. In an note of suspension a complainer contended that she was entitled to have the note passed without caution, but offered to find it if so appointed. The Lord Ordinary on the Bills passed the note on caution as offered. Held that the complainer was not barred by her offer from reclaiming. Cumming v. Hendry, p. 308. Process-Sheriff-Remit for Jury TrialProof or Jury Trial-Trifling Character of Cause-Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 30. In an action of damages at common law, in the Sheriff Court, for £100 for personal injury, the pursuer required the cause to be remitted to the Court of Session for jury trial. The Court refused the application and remitted the cause back to the Sheriff on the ground that ex facie of the record the injury averred by the pursuer was not serious, and the case was therefore unsuitable for jury trial in the Court of Session. Barclay v. T. S. Smith & Company, p. 308. Jury Trial-Verdict Set Aside and Judgment Entered for Opposite PartyJury Trials Amendment (Scotland) Act 1910 (10 Edw. VII and 1 Geo. V, cap. 31), sec. 2. The Jury Trials Amendment (Scotland) Act 1910, enacts, sec. 2-"If after hearing parties upon (a) a rule to show cause why a new rule should not be granted in terms of section 6 of the Jury Trials (Scotland) Act 1815, on the ground that the verdict is contrary to evidence, or (b) . . . the Court are unanimously of opinion that the verdict under review is contrary to evidence, and further, that they have before them all the evidence that could be reasonably expected to be obtained relevant to the cause, they shall be entitled to set aside the verdict, and, in place of granting a new trial, to enter judgment for the party unsuccessful at the trial." In an action of damages at the instance of an employee who had been dismissed, the jury found for the pursuer and awarded damages. The Court set aside the verdict and assoilzied the defenders, holding (1) that the jury were not entitled on any reasonable view of the evidence to find for the pursuer; and (2) that the whole evidence that could reasonably be expected to be obtained had been adduced. Mills v. Kelvin & James White, Limited, p. 331. Proof-Diligence to Recover WritsConfidentiality-Letters Passing between Party's Law Agents and Arbiters, Engineers, Contractors, and Officials - Statement of Fact. Arailway company brought an action of suspension and interdict against the lessee of a freestone quarry to interdict him from quarrying the freestone under land which the company had purchased under the Railways Clauses Consolidation (Scotland) Act 1815. The respondent averred-"In selling and purchasing respectively the land in question both the sellers and the complainers treated with each other, in respect of the said freestone rock, on the footing that it was admittedly a mineral within the meaning and for the purposes of the said Railways Clauses Act," and sought a diligence to recover excerpts from the letter books of the complainers' law agents of all letters which contained references to freestone as a mineral, written in connection with similar sales of land and passing between the complainers' law agents and the arbiters in arbitration proceedings relating to such sales, and between the complainers' law agents and the complainers' engineers, contractors, and officials. The complainers objected to the diligence on the ground that the letters were confidential. The Court, in the circumstances, granted the whole diligence, expressly reserving for the Lord Ordinary the question of the confidentiality of any excerpt to be made by the commissioner. Caledonian Railway Company v. Symington, p. 358. Process-Jury Trial - Slander - Latitude in Time of Utterance. In an action of damages for slander the question put in issue was "whether on or about 12th March 1912. . . the defender did falsely and calumniously say of and concerning the pursuer" certain words to the pursuer's loss, injury, and damage. At the conclusion of the trial the jury found that the defender had uttered the slander complained of, but that it had been so uttered in February 1912, whereupon the Lord President directed that the verdict should be entered for the defender. Smith v. Paton, p. 394. a Jury Trial - Verdict for Pursuer Set Aside and Judgment Entered for Defenders Jury Trials Amendment (Scotland) Act 1910 (10 Edw. VII and 1 Geo. V, cap. 31), sec. 2. The Jury Trials Amendment (Scotland) Act 1910, sec. 2, enacts"If, after hearing parties upon rule to show cause why a new trial should not be granted. . . on the ground that the verdict is contrary to evidence.. the Court are unanimously of opinion that the verdict under review is contrary to evidence, and further, that they have before them all the evidence that could be reasonably expected to be obtained relevant to the cause, they shall be entitled to set aside the verdict, and in place of granting a new trial, to enter judgment for the party unsuccessful at the trial. Circumstances in which the Court set aside a verdict for the pursuer, and, in place of granting a new trial, assoilzied the defenders. Macleod v. Edinburgh and District Tramways Company, Limited, p. 418. Sheriff-Remit for Jury Trial-Substantial Character of Cause Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 30. In an action of damages at common law in the Sheriff Court for £300 for personal injury and injury to property the pursuer required the cause to be remitted to the Court of Session for jury trial. The Court refused a motion to remit the case back to the Sheriff and ordered issues, on the ground that ex facie of the record the action was not unsuitable for jury trial in the Court of Session, the injuries averred being serious and the damage sought substantial. Mackie v. Davidson, p. 461. Jury Trial-Transmission of Cause for Trial at Sittings - Act of Sederunt, November 19, 1910, sec. 3-Note Appended to Rolls of Court Appointing Time for Lodging Papers. The rolls of Court issued on 28th February 1913 contained notice of the ensuing sittings for jury trial, the following note being appended to the notice :-"Note.-With regard to the transmission of causes for trial at these sittings, agents are referred to the Act of Sederunt, dated 19th November 1910. A copy of the Lord Ordinary's interlocutor allowing the trial to proceed at the sittings, along with a print of the closed record and of the adjusted issue or issues, must be handed to the keeper of the rolls of the Division in which the cause is to be tried, and that not later than 12 o'clock noon on Wednesday, the 5th day of March, otherwise the cause will not be taken at the sittings." Section 3 of the Act of Sederunt, November 19, 1910, provides-"If the cause is to be tried at the sittings the process shall forthwith be transmitted... to the clerk of the Division. . . . A copy of the Lord Ordinary's interlocutor allowing the trial to proceed at the sittings, along with a print of the closed record and of the adjusted issues, shall also be handed to the keeper of the rolls of such Division." The agent for the pursuer in an action of damages which the Lord Ordinary, on 20th February 1913, had appointed to be tried at the sittings, tendered the necessary copy interlocutor and prints to the Keeper of the Rolls on 5th March 1913 within office hours, but after twelve. o'clock. The case not having been inIcluded in the list of causes for trial at the sittings, and the pursuer having thereupon presented a note to the Lord President for authority to the Keeper of the Rolls to receive the copy interlocutor.and prints and include the cause in the said list, the Court discharged the order for trial and remitted the cause to the Lord Ordinary. Campbell v. Osborne & Hunter, p. 503. Process-Proof or Jury Trial-Action of Damages at Common Law by Workman against Employers for Personal InjuryReduction of Agreement to Take Compensation under Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58). In an action of damages at common law by a workman against his employers for personal injury, where the workman sought to set aside on the ground of minority and lesion an agreement to take compensation under the Workmen's Compensation Act 1906 as affirmed by the Sheriff - Substitute acting as arbitrator, the Court allowed a proof before answer. M'Feetridge v. Stewart & Lloyds, p. 505. ·Consistorial Cause-Decree of Divorce in Absence-Rules of Commissary Court -Year and Day. Held that the rules of the Commissary Court do not apply to the Court of Session, and that it was competent to reduce a decree of divorce in absence even after the lapse of a year and a day. Greenhill v. Ford, February 7, 1822, 1 S. 296, aff. June 16, 1824, 2 Shaw's App. 435, commented on. Corbidge v. Somerville and Another, p. 591. Process-Reclaiming Note-CompetencyFinal Interlocutor-Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 11Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 53. In an action which was settled by joint-minute the First Division decerned against the defenders for payment of a certain sum, found the pursuers entitled to expenses, and remitted the account thereof to the Auditor to tax and to report to the Lord Ordinary, with power to his Lordship to decern for the taxed amount of the account. On 19th March 1913 the Lord Ordinary repelled certain objections stated by the pursuers to the Auditor's report and decerned for payment of the taxed amount. Against this interlocutor the pursuers reclaimed, the reclaiming note being lodged on 24th April 1913, the second box-day in vacation. Held that the reclaiming note was incompetent, not having been presented within ten days from the date of the Lord Ordinary's interlocutor. Cowper v. Callender, January 19, 1872, 10 Macph. 353, 9 S.L.R. 227, followed. M'Alley v. Marshall's Trustees, p. 075. Issue Form of Issue - "Without Reasonable Grounds of Suspicion" Illegal Apprehension by Police Constable -Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii), sec. 88. The Glasgow Police Act 1866 enacts-Section 88-"It shall be lawful for the Chief-Constable or for any superintendent, lieutenant, or constable acting under or appointed by him... without any other authority than this Act, to do any of the following acts within but not beyond the city, viz.They may search for, take into custody, and convey to the police office any person who is either accused or reasonably suspected of having committed penal offence." In an action of damages for wrongful arrest against two police constables who, acting under the Glasgow Police Act 1866, had apprehended the pursuer without a warrant, held that the bona fide belief of the constables that they had acted reasonably was not suffi cient to justify their plea of privilege, and that it was unnecessary to put in issue malice and want of probable cause, and issue approved whether defenders "wrongfully and illegally and without reasonable grounds of suspicion apprehended the pursuer." Shields v. Shearer and Another, p. 794. ..a -Proof-Evidence-Credibility of Witnesses- Weight to be Given to Opinion of Judge of First Instance-Duty of Judge of Appeal. Observations (per Lord Kinnear and Lord Mackenzie) on (1) the weight to be given by a judge of appeal, before whom a question of fact is properly laid, to the opinion of the judge who has seen and heard the witnesses; and (2) the duty of the judge of appeal, taking into account the impression made by the witnesses on the judge of first instance who saw and heard them, to give his own opinion on the evidence in the case. Christie v. Lyburn, p. 882. Process. See Husband and Wife--Sheriff. Profits. See Revenue. Proof-Witness-Admissibility-Action of Damages for Injury by Bites of Dog-Evidence as to Conduct of Dog Subsequent to the Raising of the Action. In an action of damages for injury caused by the bites of a dog, held that the pursuer was entitled to lead evidence of attacks made by the dog on other persons subsequently to the raising of the action in order to show that the dog was of a vicious disposition. Gordon v. Mackenzie, p. 64. Writ or Oath - Church - Family Pew. Opinion by the Lord President that an assignment of sittings in a family pew can only be proved by writ. Paterson v. Brown, p. 252. Parole Evidence-Admissibility to Explain Written Documents-Discharge -Ambiguity. M. sued S. for payment of £500, which he alleged was due to him under an agreement for the settlement of (1) an action by M. against T. & Co., of which firm S. was a partner; (2) an action by T. & Co. against M.; and (3) an action by M. against S. M. averred that the agreement provided that all three actions were to be withdrawn, that T. & Co. were to pay him £2500 at once, and that S. was to pay him a further sum of £500 within a reasonable time. The sum of £2500 was paid to M., but S. denied liability for the further sum of £500, and in defence to the present action produced (1) the following letter from M. to S., dated 5th December 1910: "I hereby acknowledge that all sums of money due by you to me, and all claims by me against you or your firm of (T. & Co.) and partners, are hereby discharged, and I agree to withdraw the actions at my instance against you and your firm of (T. & Co.) and partners on the understanding that (T. & Co.) and partners also withdrew their action against me and abandon all claims against me"; and (2) the following receipt signed by M., dated 7th December 1910: "Received from (S.) the sum of Two thousand five hundred pounds, being sum agreed to be accepted by me in full settlement of all claims at my instance against him and his firm of (T. & Co.) and partners." S. maintained that these two documents taken together constituted a complete and final discharge, and that, the documents being unambiguous, parole evidence that £500 was still due was incompetent. Court allowed a proof habili modo on the ground that the documents were ambiguous and could not safely be construed without knowledge of the facts to which they related. M'Adam v. Scott, p. 264. The See Expenses-Process. Property-Loch-Title-Parts and Pertinents-Marches-Common ProprietorsEvidence-Grant with Parts and Pertinents Opposed to Subsequent Express Grant. A brought an action against B to have it declared that she was the sole owner of a loch (a) in virtue of her titles, |