sion. Held that in estimating the free rent interest on the duty fell to be deducted. Mackintosh, Petitioner, p. 22. Entail-Improvement Expenditure-Obligation by Heir in Possession to Repay Cost of Improvements Executed by Lessee -Action by Lessee's Executors against Succeeding Heir-Competency-Extent of Charge Date at which Improvements Fall to be Valued - Interest Entail (Amendment) (Scotland) Act 1878 (41 and 42 Vict. cap. 28), secs. 1 and 2. A, an heir of entail in possession, granted a lease of the mansion-house, &c., to B, who undertook to execute a variety of improvements thereon, A binding himself and the succeeding heirs, and subsidiarie his own heirs and executors, to repay as at his (A's) death three-fourths of the certified cost thereof. By a subsequent agreement the limit of improvement expenditure for which A was to be liable was fixed at £6700. On the expiry of the lease B's executors brought an action against, inter alia, C, the succeeding heir (who alone lodged defences), to enforce A's obligation to repay, as having devolved on him in virtue of section 1 of the Entail Amendment (Scotland) Act 1878. C pleaded that the action, so far as laid against him, was incompetent. Held (1) that the action was competent; that the limit of £6700 effeired to the statutory improvements only, and did not fall to be divided proportionally between statutory and non-statutory improvements; and that, accordingly, C was bound to repay the certified cost thereof as at A's death, that being the date when the obligation to repay became prestable; but (2) that the pursuers were only entitled to decree for three-fourths of that sum, that being the extent to which A himself could have charged the estate. Held further that the pursuers were not entitled to interest from the date of citation, but from the date of decree only, C not being in mora till the amount due had been proved against him. Shepherd's Executors v. kenzie and Others, p. 105. Mac Process-Improvement Expenditure -Agreement by Heir to Repay Cost of Improvements Executed by Lessee Petition to Charge at Instance of Lessee's Executors-Competency-Entail Amendment (Scotland) Act 1875 (38 and 39 Vict. cap. 61), sec. 11 Entail Amendment (Scotland) Act 1878 (41 and 42 Vict. cap. 28), sec. 1. A, an heir of entail who had granted a lease of the mansion-house to B, arranged with the latter that he (B) should execute a variety of improvements, A binding himself and the succeeding heirs of entail to repay to B as at his (A's) death three-fourths of the certified cost thereof. In security of the obligation A expressly bequeathed and assigned to B and his executors the aforesaid sum. On A's death B's executors presented a petition under section 11 of the Entail Amendment (Scotland) Act 1875 for authority to charge the estate with this sum. The succeeding heir of entail objected to the competency of the application. Held that, as the petitioners were not, and did not represent, an heir of entail who had executed or paid for improvements, they were not entitled to the charge craved, and petition dismissed as incompetent. Shepherd's Executors v. Mackenzie and Others, p. 105. Equitable Compensation. See Succession. Error. See Interest-Reparation. Essential Error-Discharge Granted sine causa-Relevancy. S. paid to M. £2500 under an agreement to settle certain litigations between M., S., and a firm of which S. was a partner. M., in respect of said payment, granted a receipt in full of all claims at M.'s instance against S. and his firm. and partners. M. averred that by the agreement S. personally was bound to pay him a further sum of £500, and that by granting the receipt he did not intend to discharge that claim, which he had not then in contemplation, and the discharge of which would have been gratuitous. Held (per Lord Skerrington, Ordinary) that M. had stated a relevant case for challenging the receipt on the ground of essential error. Opinions M'Adam reserved in the Inner House. v. Scott, p. 246. Estate Duty. See Revenue. Executor. See Title to Sue. Exemption. See Arrestment. Expenses- Taxation Photographs Obtained by Pursuer-Small Sums Involved. In an action for the enforcement of certain restrictions in the defender's title, in which the pursuers were substantially successful, the defender objected to the Auditor's report on the pursuers' account of expenses, in so far as he (the Auditor) had allowed an item of £9 odd, being the cost of certain photographs which the pursuers had obtained at their own hand, for the purpose of illustrating the subjects in dispute. The Court repelled the objection. Observed (per the Lord President) that it would be pessimi exempli to allow an objection involving a sum of only £9 odd upon a matter about which the Auditor was perfectly able to make up his mind. Montgomerie-Fleming's Trustees v. Kennedy, p. 4. Counsel Skilled Taxation Witnesses --- Local Agent Giving Evidence. In counter actions, afterwards conjoined, arising out of nine contracts entered into at different dates from 1898 to 1905 for the maintenance and repair of railway waggons belonging to the defenders, the pursuers were found entitled to one-half of their expenses in the Outer House. The proof, which was a heavy and complicated one, lasted twelve days, there being two adjournments-the first from 28th May till 19th October, and the second from 23rd October to 18th January following. Objection was taken to the Auditor's taxation of the account, inasmuch as he had allowed (1) to senior counsel a fee of thirty guineas for the first day of the proof, and similar fees for the first day of each of the adjourned diets; (2) as was maintained, excessive amounts to the skilled witnesses; and (3) a fee to the pursuers' local agent, who had appeared and given evidence and had been treated as an ordinary witness. The Court sustained the first objection, reducing the fee to twenty-five guineas, but repelled the others. Hurst, Nelson, & Company, Limited v. Spenser Whatley Limited, p. 52. - Expenses Taxation - Proof—Statements Compiled from Documents in Process. In a heavy and complicated case arising out of a series of contracts for the upkeep of railway waggons, the pursuers were awarded one-half of their expenses in the Outer House. Objection was taken to the Auditor's allowing the sums charged for the preparation of certain statements made up for the purposes of the proof, of facts and figures, in tabulated form, compiled from the books and other productions in the case. The Court repelled the objection and approved of the Auditor's report. Hurst, Nelson, & Company Limited v. Spenser Whatley, Limited, p. 52. Proof- Tender Preparation for Proof-Acceptance of Tender synchronous with Allowance of Proof-General Regulation No. 3, appended to A.S. 15th July 1876. In a salvage action the Lord Ordinary, before pronouncing an order for proof, allowed the defenders three days to consider as to the lodging of a tender. The three days having expired without it having been lodged, his Lordship, on the pursuers' motion, pronounced the usual order. Shortly thereafter, and before the interlocutor had been signed, the defenders lodged a tender which was accepted. Held (rev. judgment of Lord Dewar, Ordinary) that the pursuers were entitled to the expenses incurred by them in making preparations for the proof. Boyle and Others v. Olsen and Others, p. 67. Interdict Nuisance Remedial Measures-Remit to Ascertain EffectExpenses of Remit. In an action of interdict against the continuance of a nuisance caused by the working of a gas engine which was alleged to affect injuriously an adjoining tenement, the Court held that the nuisance was proved, but allowed the defenders an opportunity of executing remedial works. The defenders lodged a note stating that they had executed remedial works which had resulted in the removal of the nuisance. The pursuers, although they were advised by an expert of their own that the nuisance was removed, maintained that it had in no way abated, in respect of a statement to that effect made to them by the factor and tenants of the tenement, and the Court remitted to a man of skill, who reported that the nuisance had been removed. The Court in dismissing the petition for interdict found the defenders entitled to the expenses of the remit. M'Ewen and Others v. Steedman & M'Alister, p. 505. Taxation-Preparation for ProofTender-Acceptance of Tender-General Regulation (No. 3) Appended to A.S. 15th July 1876. An action raised in the Sheriff Court was, after proof had been allowed, appealed to the Court of Session for jury trial. An order for issues was thereafter pronounced, but before further procedure a tender was made by the defenders and accepted, the sum tendered being decerned for with expenses. Held (after consultation with the Judges of the Second Division) that the defenders were liable for the expenses of precognitions and medical reports obtained by the pursuer while the case was still in the Sheriff Court, and charged on the Sheriff Court scale. Church v. Caledonian Railway Company, December 22, 1883, 11 R. 398, 21 S.L.R. 268, overruled. M'Clymont v. Glasgow Corporation, p. 549. Expenses-House of Lords-Valuation Appeal-Revenue-Land Values Duties-Increment Value Duty-Finance (1909-10) Act 1910 (10 Edw. VII, cap. 8). Circumstances in which, in an appeal at the instance of the Crown from the Valuation Appeal Court to the House of Lords arising out of the construction of the Finance (190910) Act 1910, in which the Crown were successful, their Lordships, in respect that the point was an entirely novel one, made no order as to costs. Herbert's Trustees v. Inland Revenue, p. 569. -Tender-Reparation-Slander-Jury Trial-Nominal Damages. An action of slander was raised to which the defences were lodged. The defender thereafter offered to the pursuer £5 in settlement of his claim, The pursuer refused this offer. Three issues were allowed, and on each the jury found for the pursuer, and assessed the damage at sixpence on each issue. The defenders, in moving the Court to apply the verdict asked for expenses, including those before the tender. Held that the defenders were not entitled to expenses before the date of tender. Bradley v. Menley & James, Limited, p. 765. --Taxation-Sheriff-Employment of Counsel --Sheriff in Interlocutor Disposing of Merits of Case Sanctioning Employment of Counsel - Interlocutor of Sheriff Recalled by Court of SessionAuditor Allowing Fees to Counsel. Where a Sheriff-Substitute in an interlocutor disposing of the merits of a case had sanctioned the employment of counsel in the Sheriff Court, and that interlocutor had been recalled by the Court of Session, it was held that the Auditor was entitled to treat the certificate of employment of counsel as still in force. Taylor v. Steel-Maitland, p. 776. Sheriff Court-Jury Trial-Appeal -New Trial · Expenses of Appeal. Where a new trial was granted on the grounds that the verdict had been erroneously applied and contrary to the evidence, held-following Bond v. Dalmeny Oil Company, Limited, July 15, 1909, 46 S.L.R. 920-that the pursuer was liable in the expenses of the appeal. Nimmo & Company, Limited, v. Reid, p. 789. Expenses - Taxation - Higher or Lower Scale of Taxation-Power of Court to Determine Scale-Timeous ApplicationC.A.S., M, ii, 1 and 2 (3). The Codifying Act of Sederunt provides-"M, ii, 1—In the ordinary Sheriff Court, except as after stated, there shall be two scales of taxation, viz., first, for causes where the amount of principal concluded for does not exceed £50; and second, for causes exceeding that amount. 2. (3) In actions of damages the scale for taxation of the account between party and party shall for the pursuer's agent be regulated by the sum decerned for, unless the Sheriff shall otherwise direct.' In an action of damages brought in the Sheriff Court the Sheriff-Substitute awarded the pursuer £100 damages. On appeal the Court reduced the damages to £50, and found the defender liable in expenses. The Auditor taxed the account of expenses in the Sheriff Court on the lower scale. On a note of objections to the Auditor's report the Court held that the Auditor had rightly taxed the account on the lower scale, having received no contrary instructions from the Court, and although the Court had power to determine the scale, it was too late for the pursuer to raise the question after the remit to the Auditor had been made. Mickel v. M'Coard, p. 853. A Two Defenders-Liability of Unsuc cessful Defender for Expenses of Successful Defender Action of Damages against Landlord and Mid-Tenant. landlord having let certain houses to a tenant, who in turn let them to subtenants, the mid-tenant was sued for damages in respect of an accident to a member of the public resulting from the defective state of repair of the subjects let. In defence the mid-tenant denied responsibility for the condition of the premises, whereupon the pursuer called the landlord as an additional defender. The mid-tenant having been found liable in reparation, and the landlord having been assoilzied, held that the mid-tenant was liable for the landlord's expenses. Kennedy v. Shotts Iron Company, Limited, and Others, p. 885. See Arbitration. Extraordinary Traffic. See Roads. Extrinsic Evidence. See Succession. Faculties and Powers. See Succession. Fee or Liferent. See Succession. Necessaries Supplied to Foreign Ship at Foreign Port-Sale of Ship in Scotland at Instance of Mortgagee. A foreign ship found in a Scotch port was arrested and sold at the instance of a mortgagee who had advanced money on security of the ship. The price realised being less than the amount of the mortgage, a competition arose between the mortgagee and a person who claimed to have a maritime lien over the ship in respect of necessaries supplied to it at a foreign port, and to be entitled to a preference in respect thereof. Held that the question whether there was a maritime lien over the ship fell to be determined according to the law of Scotland. Constant v. Klompus, p. 27. Foreign--Contract--Minor--Capacity to Contract-Lex loci contractus or Lex domicilii. An Irishman under twenty-one years of age, whose father was in Ireland, took a situation as a labourer in Scotland, and having been injured in the course of his employment, agreed, without his father's consent, to accept compensation. Held that his capacity to enter into the contract fell to be determined by the lex loci contractus. M'Feetridge v. Stewarts & Lloyds, Limited, p. 505. Forgery of Client's Signature. See Agent and Client. Fraud-Agent and Client-Property-Innocent Third Party-Fraudulent Discharge of Bond by Agent-Delivery of Bond to Purchaser of Subjects - Right of Purchaser to Retain Bond as Against the True Owner. The purchaser of a property who had paid a full price therefor, including the sum contained in a bond with which it was burdened, received along with the disposition a forged discharge of the bond and the bond itselfthe seller's agent, who also acted for the bondholders and so had custody of the bond, embezzling the sum contained therein. In an action by the creditors for delivery of the bond the purchaser maintained that she was entitled to retain it on the grounds (1) that it was one of the titles to the property, and (2) that the agent had the creditors' implied authority to discharge it. Held that the pursuers were entitled to delivery of the bond, they not being in any way to blame for their agent's fraud, and he having no mandate to discharge it. Bowie's Trustees v. Goudie and Others, p. 202. See Principal and Client. Fraudulent Registration. See Sale. Friendly Society--Arbitration-Jurisdiction -Dispute between Member and Society-Friendly Societies Act 1896 (59 and 60 Vict. cap. 25), sec. 681. The Friendly Societies Act 1896 enacts:-Section 68 (1) -"Every dispute between (a) a member and the society... shall be decided in manner directed by the rules of the society or branch, and the decision so given shall be binding and conclusive on all parties without appeal, and shall not be removable into any court of law or restrainable by injunction; and application for the enforcement thereof may be made to the Sheriff Court of the county." The rules of a friendly society registered under the Friendly Societies Acts provided, inter alia-"All disputes between the society and any member as such. . . which cannot be settled in the Small Debt Court, may be determined . by arbitration.” A member having brought an action against the society and A B, another member, for declarator that the pretended election of the latter to the board of management of the society was null and void in respect that under the rules he was ineligible by reason of being more than ten weeks in arrears with his subscriptions, the defenders lodged defences in which they denied that A B was in arrears as stated, and pleaded that the Court had no jurisdiction and that the action was incompetent. Held that, in respect that the pursuer's complaint was that the society had acted in breach of its rules, the jurisdiction of the Court was not excluded. M'Gowan v. City of Glasgow Friendly Society and Another, p. 783. Reduction Friendly Society - Process Action of Declarator that Delegate Invalidly Elected to Board of Management of Society-Reduction of Minute Recording Election as Delegate. The rules of a friendly society provided that at each meeting for the election of delegates a minute of the proceedings should be transmitted to the secretary of the society. A member of the society having brought in the Sheriff Court an action of declarator that the pretended election of a delegate to the board of management of the society, for election to which only delegates were eligible, was null and void in respect that the delegate was in arrears with his subscription to an extent which under the rules debarred him from acting as delegate, held that it was not necessary to reduce the formal minute recording his election, and that the action could competently proceed in the Sheriff Court. M'Gowan v. City of Glasgow Friendly Society and Another, p. 783. Game-Ground Game - Common LawRight of Tenant to Kill Rabbits for Protection of Crops-Pasture Land Held in Common. Question whether the common law right of a tenant to kill rabbits for the protection of his crops, and to verbally authorise another person to do so, entitled the tenant to authorise such a person to shoot rabbits on pasture land common to himself and several other tenants. Morrison v. Anderson. Macdonald v. Anderson, p. 817. See Justiciary Cases. Habitual Criminal. See Justiciary Cases. Heritable and Moveable. See Succession. Heritor. See Church. House of Lords. See Expenses. Husband and Wife - Process - DivorceAdultery-Act of Sederunt, 17th July 1908-Minuting Defender Found Entitled to Final Judgment. A B brought an action of divorce against his wife, in which he asked the Court to find facts" proven relevant to infer guilt of adultery of the defender C B with G H." The case having been inti mated in terms of the A.S. of 17th July 1908 to G H, he lodged a minute craving to be sisted as a party to the cause. After proof the Lord Ordinary decerned against the wife in terms of the conclusion of the summons, but in respect that there was no conclusion against G H, found it unnecessary to consider how far the evidence was good against him. G H reclaimed, and in the Inner House counsel for the pursuer admitted that he could not maintain that adultery was proved against GH. Parties differed as to whether in the circumstances the action should be dismissed as against G H, or decree of absolvitor pronounced in his favour. Held that there was a declaratory conclusion against G H; that he was therefore entitled to have a judgment on the question of whether adultery was proved against him or not; that the Court could not decide that question without hearing the evidence, and were entitled to the opinion of the Judge of first instance upon it; that therefore the case must go back to the Lord Ordinary in order that he might decide whether adultery was proved against G H, and if not, whether decree of dismissal or absolvitor should be pronounced. A B v. C B and G H, p. 68. Husband and Wife-Divorce- Reduction on Ground of no Jurisdiction-Title of Creditor of Spouse to Sue. In an undefended action of divorce at a wife's instance the Lord Ordinary granted decree. Thereafter the husband's trustee in bankruptcy, to whom the divorce proceedings had not been intimated, and who in consequence of those proceedings had been deprived of the income of certain postnuptial marriage-contract funds which was formerly payable to the husband, and as a result of the decree of divorce became payable to the wife, brought an action for reduction of the decree on the ground that the husband's domicile was English, and that accordingly the Court had no jurisdiction to grant divorce. Held that where, as here, the decree was challenged on a ground that did not affect the merits, the trustee had a right to have the question of its validity determined, and action allowed to proceed. Opinion per curiam that the pursuer had adopted the wrong procedure, his proper remedy being to have brought a petitory action against the marriage-contract trustees for the income, in which the decree of divorce could competently have been set aside ope exceptionis. Opinions that while a creditor may challenge his debtor's divorce on a ground not affecting the merits, he has no title to reduce on its merits a decree determining status. Corbidge (Somerville's Trustee) v. Somerville and Another, p. 591. See Jurisdiction-Succession. Ice Cream Vendors. See Justiciary Cases. Illegal Preferences. See Bankruptcy. Immoral Traffic. See Justiciary Cases. Improvement Expenditure. See Entail. Income Tax. See Revenue. Increment Value Duty. See Revenue. Indictment. See Justiciary Cases. Industrial Disease. See Master and Servant. Infringement. See Patent. Inhabited House Duty. See Revenue. Injury to Child. See Reparation. Insurance-Rate of Contributions—Determination of Commissioners-Reduction -National Insurance Act 1911 (1 and 2 Geo. V, cap. 55), sec. 66 (1). The National Insurance Act 1911, sec. 66 (1), enacts "If any question arises. (c) as to the rates of contributions payable in respect of an employed contributor by the employer and the contributor respectively, the question shall be determined by the Insurance Commissioners in accordance with regulations made by them for the purpose." A firm of employers brought an action for reduction of a determination of the Commissioners fixing the rates of contributions payable by the pursuers and one of their employees respectively under Part I of the National Insurance Act 1911. It was not averred that the Commissioners had refused to hear parties, or that they had acted otherwise than in good faith in determining the question. Held that the Court had no jurisdiction to interfere with the decision of the Commissioners, and action dismissed. Don Brothers, Buist, & Company, Limited v. Anderson and Others, p. 361. Life Assurance-Transfer of Business Transmission of Statement of Nature of Transfer, Abstract of Agreement, and Reports to Policyholders--Dispensing with Transmission-Assurance Companies Act 1909 (9 Edw. VII, cap. 49), sec. 13 (3) (b). The Assurance Companies Act 1909, sec. 13, enacts-"(1) Where it is intended . . . to transfer the assurance business of any class from one assurance company to another company the directors of any one or more of such companies may apply to the Court by petition to sanction the proposed arrangement. (3) Before any such application is made to the Court. . . (b) a statement of the nature of the . . . transfer, . . together with an abstract containing the material facts embodied in the agreement or deed under which the . . . transfer is proposed to be effected, and copies of the actuarial or other reports upon which the agreement or deed is founded, including a report by an independent actuary, shall, unless the Court otherwise directs, be transmitted to each policyholder of each company in manner provided by section 136 of the Companies Clauses Consolidation Act 1845 for the transmission to shareholders of notices not requiring to be served personally. . . .' Where, in a petition by two insurance companies for sanction of a proposed transfer of business under the Life Assurance Companies Act 1909, sec. 13, the petition stated that in terms of sub-section (3) (b) the statement, abstract, and reports therein specified had been duly transmitted to the policyholders of the first company, but that the transmission of these documents to the policyholders of the second company, who numbered about 30,000, would cause considerable trouble and expense, and by the terms of the proposed transfer the life funds of the second company would not be liable for sums due under the policies of the first company, the Court dispensed with transmission of the documents. City of Glasgow Life Assurance Company and Scottish Union and National Insurance Company, Petitioners, p. 787. Insurance. See Master and Servant. Interdict - Property - Relevancy - Aerated Water Bottles – Unauthorised Use. An aerated water manufacturer brought an action against a drysalter to interdict him by himself or others acting for him or under his instructions putting paraffin oil or other liquid into bottles sent out by the pursuer to his customers and embossed or otherwise marked with his name and known by the defender to be the property of the pursuer. Averments that the bottles were given out to customers on payment of a deposit to be repaid on return of the bottles, and that the defender was in the habit of filling such bottles with paraffin oil in the knowledge that they were the property of the pursuer, and although he had been warned not to do so, held relevant, and proof allowed. Wilson v. Shepherd, p. 205. See Expenses. Interest Repetition-Error-Sale. Where repetition was allowed of the price of certain subjects erroneously, through the seller's innocent misrepresentation, believed by the purchasers under an agreement of sale to belong to the seller, interest was allowed at 3 per cent. from the date of payment. Duncan, Galloway, & Company, Limited v. Duncan, Falconer, & Company, Limited, p. 167. Rate of Interest-Rate where Trustee Held Personally Liable to Refund. The representatives of a deceased trustee having been found liable to refund to the trust a sum of money lost through his negligence, were held liable to simple interest only, and at the rate of 3 per cent. as being the average rate of trust interest. Schulze and Another v. Dun and Others, p. 520. Joint Tenants. See Landlord and Tenant. Judicial Factor - Powers - Lease - Urban Subjects. A judicial factor presented a note craving special power to grant a lease for ten years of urban subjects forming part of the factory estate. The Court remitted to the Junior Lord Ordinary to grant the prayer of the note, but expressed the opinion that where, as here, the circumstances were in no way complicated, and the Accountant of Court was satisfied that the course proposed by the factor was beneficial for the trust estate, the application for special power was unnecessary, the let |