Capital. See Company. Carriage of Goods. See Railway. Casualty. See Superior and Vassal. Charitable Bequest. See Succession. Charitable Institution. See Succession. Charitable Purposes. See Revenue. Charitable Trust-Bequest for Industrial School-Conditions Incapable of Fulfilment-Lapse-Cy près. A testator directed his trustees, on the expiry of a liferent, to apply the residue of his estate "in_founding, erecting, and endowing in Paisley an Industrial School for Females.' At the date of the will the bequest could have been carried out, but by the time the liferentrix died it had, owing to supervening legislation, become impracticable. In a multiplepoinding raised after her death the trustees proposed to retain the residue and to administer it cy près. Held that the bequest was one to take effect upon the happening of a condition which had failed, but the will evinced no intention to dedicate the money to charity independently of the particular modus indicated by the testator, and that accordingly the bequest had failed and could not be administered cy près. Burgess's Trustees v. Crawford and Others, p. 294 Charter-Party. See Ship. Children's Provisions. See Marriage-Con tract. Closing Order. See Local Government. Commission Agency. See Revenue. Company-Reduction of Capital-Objecting Creditor-Contingent Claim-Claim for Rent under Unexpired Lease-Companies (Consolidation) Act 1908 (8 Edw. VII, c. 69), sec. 49, sub-sec. (3). The Companies (Consolidation) Act 1908, sec. 49, enacts, sub-sec. (3)-"Where a creditor entered on the list whose debt or claim is not discharged or determined does not consent to the reduction, the Court may, if it thinks fit, dispense with the consent of that creditor, on the company securing payment of his debt or claim by appropriating, as the Court may direct, the following amount (that is to say): (i) If the company admits the full amount of his debt or claim, or, though not admitting it, is willing to provide for it, then the full amount of the debt or claim; (ii) if the company does not admit or is not willing to provide for the full amount of the debt or claim, or if the amount is contingent or not ascertained, then an amount fixed by the Court after the like inquiry and adjudication as if the company were being wound up by the Court." A company which was tenant of certain subjects under a lease presented a petition for confirmation of a resolution to reduce its capital. The proprietors of the subjects objected to the petition being granted until the company either consigned the rent for the remainder of the lease or granted security therefor. Held that the company's liability for the rent under the lease, though a future, was not a con tingent debt in the sense of sec. 49 (3) of the Companies (Consolidation) Act 1908, and that, as the company was unable to consign the future rent or grant security therefor, the petition must be dismissed. The Palace Billiard Rooms, Limited and Reduced, Petitioners, p. 4. Company-Voluntary Winding-up-Approval of Deliverances by Liquidator on Creditors' Claims-Companies (Consolidation) Act 1908 (8 Edw. VII, c. 69), sec. 193. Under section 193 of the Companies (Consolidation) Act 1908 the liquidators of a company, which was being wound up voluntarily, presented a petition for the approval of the whole of their deliverances on the claims of creditors, a statement of which was produced. The creditors having been duly certiorated of the petition and of the deliverances for which approval was sought, and no answers having been lodged, the Court granted the prayer of the petition. Liquidators of Kosmoid Tubes, Limited, Petitioners, p. 9. Winding-up-Voluntary Windingup-Petition for Appointment of Committee of Iuspection-Procedure-Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 69), sec. 188. In a petition under section 188 of the Companies (Consolidation) Act 1908 for the appointment of a committee of inspection to act along with the liquidator in a voluntary winding-up, the Court, on the production of a letter from the liquidator consenting to the application, made the appointment craved without intimation or service. Marlow, Petitioner, p. 464. A The Debenture Holders Receiver and Manager-Shipment of Goods by Receiver-Bill of Lading-Clause of Lien for Previous Arrears of Freight. brewery company had habitually shipped beer by the appellants' steamships under bills of lading which provided for a lien to the shipowners for unsatisfied freight due either from shipper or consignee in respect of other shipments. brewery's debenture holders brought an action against it, and W. was appointed receiver and manager of the brewery company. W. sent an order to the appellants to ship some beer consigned to the company, c/o the company's agents at Malta, signing the order in name of the brewery company "by W., Receiver and Manager." The shipowners having carried the beer under a bill of lading in their usual form claimed a lien over it for arrears of freight due in respect of previous shipments by the company before W. was appointed receiver. Held (diss. Lords Shaw and Mersey) that the company and W., the receiver, were distinct; that the receiver was both shipper and consigner, and by the form of his order had given notice of this fact to the appellants, and that accordingly the appellants were not entitled to a lien under the bill of lading for arrears of freight. Moss Steamship Company, Limited v. Whinney, p. 630 Capital-Lien of Company for Debts Due to it" Holder" of Shares. By its articles of association a company had a lien "on all shares . . . for all moneys due to it from the holder or any jointholders thereof." A shareholder, who was indebted to two banks, transferred to and registered in the name of nominees of the banks certain shares standing in his own name, and purchased and registered in the same names certain other shares which had never been registered in his own name, all in security of the debt due by him to the banks. On the shareholder's death his estates were sequestrated. The banks having obtained payment of their debt out of other securities, admitted that they held the shares for the deceased's trustee, and were ready to transfer them to him, but the company claimed a lien on them in respect of a debt due by the deceased to it. On a special case being brought to decide whether the company was entitled to the lien, held that the expression "holder" of shares in the articles meant "registered holder" of shares, and since the deceased's trustee was not the regis tered holder of the shares, although he had the radical right to them, the debt due by the deceased was not a debt due by the "holder" of the shares, and the company was not entitled to the lien. Paul's Trustee v. Thomas Justice & Sons, Limited, p. 937. Company Limited Company- Ultra vires Action Dissentient Minority. Action by a minority of shareholders to restrain the majority can only be brought on the ground that (1) the majority has acted ultra vires, or (2) fraudulently, or (3) so as to deprive the minority of their rights. Judgment of the Court below reversed. Dominion Cotton Mills Company and Others v. Amyot and Others - Brunet, Intervenant, p. 1044. Compensation. See Master and Servant. Compromise of Action. See Agent and Client. Compulsory Powers. See Railway. Conjoined Actions. See Proof. V. the number of weeks that it actually took to have the contract completed by the other contractor. Held that the penalty clause contemplated completion of the works by B, the original contractor; that it did not apply where, as here, another contractor had finished the work; and that accordingly the claim for liquidate damage was inappropriate and must be repelled. British Glanzstoff Manufacturing Company Limited General Accident, Fire, and Life Assurance Corporation, Limited, p. 477. Contract--Arbitration Clause--Construction -Applicability-Right to Legal Remedies. An arbitration clause in a contract for the erection of electric plant provided that any dispute or difference arising between the parties as to the construction of the contract, or the rights or liabilities of parties, should be referred to arbitration, “provided that no such dispute or difference shall be deemed to have arisen or be referred to arbitration hereunder unless one party has given notice in writing to the other of the existence of such dispute or difference within seven days after it arises." The buyers having rejected the plant, the sellers, more than seven days thereafter, wrote repudiating the rejection, and subsequently sued the buyers for the price. The defenders having pleaded the arbitration clause, the pursuers contended that it was inapplicable on the ground that no notice had been given of the dispute within seven days after it had arisen-which, they maintained, was the date of their repudiation of the rejection-and that, accordingly, they were entitled to their ordinary legal remedies. Held that the dispute did not arise until the date of the pursuers' letter repudiating the rejection, but that the letter of repudiation was of itself notice of theexistence of the dispute, and that, accordingly, the arbitration clause was applicable, and action sisted. Howden & Company, Limited v. Powell Duffryn Steam Coal Company, Limited, p. 605. The -Condition-Precedent-Title to SueCertificate of Engineer. A contract for the erection of electric plant provided that the price should be payable by instalments, and that such instalments should be paid within fourteen days after production of the engineer's certificate that such instalments were due. contract further provided-“The certificate other than the final certificate of the engineer, shall not be considered conclusive evidence as to the sufficiency of any works or materials to which they relate, nor shall they relieve contractors from any obligations under this contract. The engineer shall not be bound to give a final certificate if he is of opinion that the contractors have not performed all obligations under this contract, but any question arising under this clause as to whether the contractors have performed all their obligations shall be subject to the provisions for arbitration herein contained." In an action at the instance of the sellers for payment of the price-the plant having been rejected by the buyer's engineer, who was the engineer under the contract-held that the engineer's final certificate had not been made a condition - precedent to payment, and that, accordingly, the sellers were entitled to sue the buyers for the price. Howden & Company, Limited v. Powell Duffryn Steam Coal Company Limited, p. 605. Contract- Legal Fraud-False Represen tation Inducing Contract Contract to Construct Railway - Non-Disclosure of Material Circumstances as to Nature of Work. A railway company entered into a written contract with a firm of contractors for the construction of a railway for a lump sum. The specification attached to the contract and forming its basis stated that bores had been put down at various parts of the line, and that a copy of the journal of these bores might be seen at the engineer's office, but that the company did not guarantee their accuracy, and would not hold themselves liable for any claim on account of any inaccuracy in the journal. According to the specification, only three descriptions of material were to be excavated, viz., solid rock, broken or loose rock, and soft. In the course of the work the contractors found that much of the material classified as "soft" contained rock, and it turned out that the bores had not been made by professional borers, but by employees of the railway who had been engaged in similar work before, and that the journal of bores had not been prepared by them but was compiled in' the engineer's office from letters written by them. It appeared further that it did not accurately record the contents of these letters, but was the engineer's interpretation of the information these letters purported to convey, and that in particular a substance reported in three instances as "black ban" or "hard black ban," and in five instances as "rock," was changed into "black blaes" and classified as "soft." In a petitory action at the instance of the contractors against the railway company for the amount of their loss under the contract, held (rev.judgment of the Second Division) that the contract had not been induced by the fraud of the defenders, in respect that the engineer honestly believed that the journal of bores correctly set forth the substance found, and corrected a misdescription of the borers as to the nature of that substance. Boyd & Forrest v. Glasgow and South-Western Railway Company, p. 735. Construction-Hire Purchase Agreement-Clause Permitting Hirer to Become Purchaser of Article Hired. A hirepurchase agreement between A and B provided that A should let to B certain articles of furniture enumerated in an inventory annexed thereto. On this inventory the cash prices of the articles were endorsed, the summation of these prices being £7543 odd. In return for the use of the furniture B agreed to pay 66 certain yearly instalments down to 15th May 1913, these instalments being so calculated as to provide for interest on so much of the principal as remained unpaid. The sum of these instalments was £8619 odd. The agreement contained a clause providing that the hirer might at any time become purchaser of the furniture by payment in cash of the hereon endorsed price under deduction of the whole sums previously paid by the hirer to the owners." After paying instalments up to and inclusive of 15th May 1910, amounting to £4966 odd, B claimed right to purchase the furniture on payment of £2577, 4s. 6d., being the difference between the sums paid by him and £7543, 16s., the price endorsed on the inventory. Held that on a fair construction of the agreement the words "whole sums meant sums previously paid towards capital, exclusive of interest, and that accordingly B was not entitled to become the purchaser of the furniture on the terms proposed by him. Taylor v. Wylie & Lochhead, Limited, p. 743. Contract-Jus quæsitum tertio- Trade Union Rules - Revocable Agreement Enforcement. The rules of a trade union which provided that the wife of an insane member who was dependent on him should be eligible for sick benefit, provided also that the rules should be alterable at a general delegates' meeting. In an action at the instance of the wife of an insane member against the union to recover sick benefit, held that, a right of action having emerged and a claim vested without any alteration having been made in the rules, the pursuer had acquired a jus quæsitum. Love v. Amalgamated Society of Lithographic Printers, p. 788. -Breach Retention Numerous Stipulations in Contract with Deposit Directly Applicable to One-Claim to Retain Deposit Applicable to One Stipulation till Question of Damages Over Whole Contract Settled. An agreement for the lease of an hotel contained a clause providing for the sale to the lessee of the furniture and fittings, and for consignation by the purchaser of £200 on depositreceipt to account of the value thereof. The purchaser failed to carry out the agreement, and sued for delivery of the deposit receipt. The vendor having refused delivery on the ground that the purchaser had rendered himself liable in damages for breach of other clauses of the agreement, held that the purchaser was not entitled to delivery of the deposit-receipt until the vendor had had an opportunity of constituting his claim for damages. Dingwall v. Burnett, p. 882. Breach Penalty Liquidate Damages. An agreement as to the lease of an hotel, containing various stipulations differing in importance, bound the parties to implement their part of this agreement under a penalty of £50, to be paid by the party failing to the party performing or willing to perform, over and above performance. Held (1) that the £50 was not liquidate damages but penalty, and (2) that the measure of damages recoverable for breach of the contract was the amount of damage actually sustained, and was not limited to the sum stated in this penalty clause. Johnstone's Trustees v. Johnstone, January 19, 1819, F.C.; Hyndman's Trustees v. Miller, November 21, 1895, 33 S.L.R. 359; and Lord Elphinstone v. Monkland Iron and Coal Company, Limited, June 29, 1886, 13 R. (H.L.) 98, 23 S. L.R. 870 (per Lord Fitzgerald) commented on. Dingwall v. Burnett, p. 882. Contract-Breach of Contract-Liquidated Damages-Penalty. Question whether a sum named in a contract for the sale of the crops of certain tea estates was by way of penalty or liquidated damages. Reference to Clydebank Engineering Company, Limited v. Castaneda ([1905] A.C. 6, 7 F. (H.L.) 77, 42 S. L. R. 74), where test is reasonableness. Webster v. Bosanquet, p. 1023. Contributory Negligence. See Reparation. Curator Bonis. See Judicial Factor. Damage by Water See Insurance. Damage to Property. See Insurance. Death Duties. See Marriage Contract. Defender of Actio Conventiones. See Jurisdiction. Defender Successful. See Expenses. Destination. See Succession. See Process. Divorce. See Husband and Wife-Proof. Documentary Evidence. See Justiciary Cases. Election Law-Lodger Franchise - Occupancy "Separately and as Sole Tenant" -Occasional Use of Lodgings by Another Person-Representation of the People Acts 1868 (31 and 32 Vict. cap. 48), sec. 4, and 1884 (48 and 49 Vict. cap. 3), sec. 2. The Representation of the People (Scotland) Act 1868, sec. 4, as applied to counties by the Representation of the People Act 1884 (48 and 49 Vict. cap. 3), b sec. 2, enacts-"Every man shall . . . be entitled to be registered as a voter. who is qualified as follows; that is to say... as a lodger has occupied . . . separately and as sole tenant, for twelve months preceding the last day of July in any year, lodgings of a clear yearly value if let unfurnished of ten pounds or upwards...." A person claimed to be registered in the list of voters as a lodger in respect of a bedroom of the required annual value. The claim was objected to on the ground that the claimant did not have the sole occupation of the qualifying subject. The Sheriff repelled the objection and admitted the claimant to the roll. The objector appealed. The facts showed that the claimant had the sole right to occupy the bedroom, but that for a portion of the qualifying period he permitted his brother to sleep in the room along with him. Held that the claimant's occupation of the bedroom was sufficient, and that his claim had been rightly admitted by the Sheriff. Milne v. Douglas, p. 178. 66 Election Law-Household Franchise-SubTenant of Unfurnished Apartments — "Part of a House Occupied as a Separate Dwelling Representation of the People Act 1884 (48 and 49 Vict. cap. 3), sec. 7. sub-sec. 4. The Representation of the People Act 1884, sec. 7, sub-sec. 4, defines a dwelling-house as 'any house or part of a house occupied as a separate dwelling." A sub-tenant, who occupied a house along with the principal tenant, claimed the household franchise. It appeared that the claimant had exclusive use of certain unfurnished rooms in the house, including the kitchen, while the principal tenant, who was his father-inlaw, and was himself on the list of voters in respect of the house, occupied another room exclusively, and had his food cooked for him by his daughter, the claimant's wife. Held that the claim could not be sustained, in respect that the facts failed to show that the principal tenant had relinquished control of the house, or that the claimant occupied his share of the house as a separate dwelling. Gregory v. Traquair, p. 179. Lodger Franchise - Occupancy of Room of Requisite Value - Contractual Right to Occupy Room. A member of a Roman Catholic Order claimed the lodger franchise in respect of the occupancy of a bedroom, of the requisite annual value, in an institution belonging to the Order, where he was employed as an assistant teacher. The claimant was entitled to no remuneration for his services and paid no rent for his room, and there was no evidence of any contract, express or implied, under which he occupied the room. Held that the claimant was not entitled to be enrolled as a lodger. Doyle v. Craig, 1911 S.C. 493, 48 S. L.R. 109, distinguished. O'Connell v. Blacklock, p. 515 Entail-Provisions to Widow and Children Free Yearly Value"-Aberdeen Act 1824 (5 Geo. IV, cap. 87)—Mansion-House -Old Mansion House within Burgh having Ceased to be Used as such. In a petition presented by an heir of entail in possession of an entailed estate, to have the amount of the annuity provisions, granted by his predecessor in favour of wife and daughters, fixed, and to have the latter charged on the entailed lands, held (per Lord Kinnear) that in the free yearly value of the estate, which lay entirely within a burgh, there was rightly included the rent of a house which was the old mansion-house of the estate but which had ceased to have that character. Logan, Petitioner, p. 26. Entail-Disentail - Old or New Entail — Private Act-Consents of Next HeirsEntail Amendment Act 1848 (11 and 12 Vict. cap. 36), sec. 28. The lands of A, B, and C were entailed by trustees in terms of a direction contained in a trustdisposition and settlement which first came into operation on the testator's death in 1842. Under authority of a private Aot of Parliament, the lands of C were disentailed in 1873 and the lands of D purchased and entailed in 1875 on the same series of heirs under the same conditions and prohibitions. This Act contained a clause that the heirs of entail in the entailed estate of A and the estate of D, "hereby directed to be entailed, shall, notwithstanding anything in this Act contained, be entitled to avail themselves of all the benefits and privileges conferred upon heirs of entail by any public Act now in force, and in particular by the Acts 11 and 12 Vict. cap. 36. . . . The heir of entail in possession, who was born in 1840, presented a petition for leave to disentail with consent of his eldest son, who was born in 1867. The two next heirs in the order of succession were the two children of the petitioner's son. Held (rev. judgment of Lord Skerrington, Ordinary on the Bills) that the entail of D, being under the private Act, was a new entail, and that the consents of the three next heirs were necessary for disentail. Morison v. Craig, p. 849. Sale-Heir in Possession-Growing Timber-Transference of Property-Sale of Goods Act 1893 (56 and 57 Vict. cap. 71), secs. 17, 18, 62 (1) and (4). The heir of entail in possession of an entailed estate entered into a contract of sale, which provided, inter alia, that the timber included in the sale should consist of a "clean cut" of part of a certain wood, that the purchaser should be at the sole expense of cutting off root and removing the timber, that the timber should be at the purchaser's risk from fire or other damage after acceptance of the offer, that the price should be payable, half within six days after acceptance of the offer and before commencing operations, and the balance when half the wood was cut, but not later than a certain date. The seller died before the whole of the timber was cut. Held (1) that under the law of entail until actual severance the timber remained part of the entailed estate; the purchaser's right to cut timber consequently ceased on the death of the seller, and the succeeding heir of entail was entitled to interdict him from cutting thereafter: and (2) that the provisions of the Sale of Goods Act 1893 as to the passing of property at a sale did not apply. Opinion (per Lord Johnston) that growing timber fell within the definition of " goods" in section 62 of the Sale of Goods Act 1893. Morison v. A. & D. F. Lockhart, p. 865. Error Payment Condictio indebiti Banker-Payment to Account of Banker's Customer-Mistake of Fact. A banker to whom money is paid to the credit of his customer's account at his customer's request, in mistake of fact, is not in a better position than his customer would be, and is not entitled to hold it if his customer would under the circumstances have been bound to refund it had it been paid to him direct. The appellant was under a contract of "standing or renewable credit" with K. & Company, a New York firm of bankers, that they should from time to time honour the drafts of a certain mining company up to £500. After each such occasion the appellant was to pay in the amount of such drafts to the respondents' London bank to the credit of K. & Company. The respondents were the agents in London of K. & Company. The appellant was not bound to pay in the stipulated amount until the mining company's drafts had actually been honoured by K. & Company, but he did so in anticipation of certain drafts. At the date of the payment K. & Company had, unknown to the appellant, committed an act of bankruptcy and were no longer able to honour the corresponding drafts. The appellant sought repayment of the sum lodged by him in the respondents' bank, but they claimed to retain it as against the indebtedness of K. & Company to them. Held that the respondents were bound to repay the amount to the appellant, the amount having been paid by him before it was legally due and under a mistake of fact as to the solvency of K. & Company. Kerrison v. Glyn, Mills, & Company, p. 683. See Bill of Exchange-Sale. Evidence--Hearsay--Statements by Deceased Persons who could not, when the Statements were Made, have been Competent Witnesses-Admissibility. Observations (per the Lord President) as to the admissibility of statements made by deceased persons who would not, when the statements were made, have been competent witnesses, but who owing to supervening legislation would, if alive, have been competent witnesses at the date of the proof. Dysart Peerage case (1881), L.R., 6 A.C. 489, commented on. Lillie (Dean's Factor) v. Deans and Others, p. 372. Credibility of Witnesses-Findings Based on Parole Evidence not Reversible by Higher Court. Where case had been decided by judge without jury upon contradictory and suspicious evidence, Court |