of Appeal reversed his decision on ground that certain proved falsehoods in respondent's case vitiated the whole evidence on which judgment was given in his favour. Held that, save in the most exceptional circumstances, the Court of Appeal had no right to reverse the decision of the judge who had seen and heard the witnesses. Judgment of the Court below reversed. Khoo Sit Hoh and Others v. Lim Thean Tong, p. 1017. Evidence-Criminal Evidence Act 1898 (61 &62 Vict. c. 36), sec. 4-Whether Wife of Panel Compellable Witness. The Criminal Evidence Act 1898, sec. 4, declares that "the wife or husband of a person charged with an offence under any enactment mentioned in the schedule to this Act may be called as a witness either for the prosecution or the defence and without the consent of the person charged." Held (rev. judgment of the Court of Criminal Appeal-Lord Alverstone, C.J., Hamilton and Bankes, JJ.) that a husband or wife cannot be compelled to testify against his will. Leach v. Director of Public Prosecutions, p. 1032. See Justiciary Cases. Executor-Executor-nominate — Confirmation-Danger to Estate-Judicial Factor. A master left a universal settlement in favour of his servant. The servant having presented an initial writ craving confirmation, it was opposed by the next-ofkin of the deceased, who averred that there was danger of the estate being lost if confirmation were granted to the petitioner. The objectors had already raised an action of reduction of the settlement. The Court, on appeal, dismissed the initial writ and appointed a judicial factor. Kerr v. Simpson, p. 369. See Trust. Expenses Successful and Unsuccessful Defenders - Liability inter se. In an action for damages for personal injury brought against two defenders, in which each maintained that the injury was caused by the fault of the other, and one only was found liable, the Court found him liable in the expenses of the other defender as well as of the pursuer. Laing v. Paull & Williamsons and Aberdeen Town Council, p. 108. Successful Defender-Misleading Averment by Defender Disallowance of Expenses. In an action against a firm of shipbrokers for payment of an account for stores supplied to a vessel, the defenders denied liability in respect that they were not owners of the vessel. This was true, but they stated in their defences that the G. Co., Ltd., were the owners. Though the G. Co. subsequently acquired the vessel, they were not owners at the time the order was placed, as the pursuer discovered when defences were lodged by an examination of the register of shipping. The Sheriff-Substitute assoilzied the defenders with expenses, and the Sheriff adhered to this interlocutor. On appeal the Court affirmed the said interlocutors, except in so far as the finding for expenses was concerned, holding that the defenders were not entitled to expenses down to the date of the Sheriff-Substitute's interlocutor, in respect that their averments as to the ownership of the vessel were misleading and calculated to induce the pursuer to persist in the action. Armour v. Duff & Company, p. 124. Expenses-Stated Case-Interlocutor-Construction-Expenses of Stated Case-Preparation of Condescendence-Adjustment Workmen's Compensation Act 1907 (6 Edw. VII, c. 58). A workman whose claim under the Workmen's Compensation Act 1906 had been dismissed by the arbiter as irrelevant was, on appeal, on a stated case, allowed to lodge a condescendence of the facts on which his claim was based. The appeal was thereafter sustained, and a remit made to the arbiter to proceed, the appellant being found entitled to "the expenses of the appeal." The appellant objected to the Auditor's report in so far as it disallowed the expenses connected with the adjustment of the stated case, amounting to £3, 14s. 2d. The respondents also objected to it in so far as it allowed the expenses in connection with the condescendence, amounting in all to £9, 10s. 8d. Held (1) that where an interlocutor bears to be for the "expenses of the appeal," or the "expenses of the stated case," or the " 'expenses of the stated case on appeal," expenses will be allowed to a modified extent, and a fee of three guineas allowed; and (2) that as the expenses connected with the condescendence had been due to the irrelevancy of the claimant's initial writ, the respondents had been wrongly charged therewith, and objection sustained. Observed (per Lord President) that in future when a party has been awarded the expenses of a stated case, the fee to be allowed, inclusive of that payable to the sheriff-clerk, will be three guineas and a half. M'Lauchlin v. Wemyss Coal Company, Limited, p. 202. Process-Trustees -- Special CaseInterlocutor Finding Parties Entitled to Expenses out of Fund. Expenses as between Agent and Client. A special case was brought by testamentary trustees to determine questions regarding the disposal of accumulated funds in their hands which had fallen into intestacy, and an interlocutor was pronounced in terms of an agreement by the parties including the trustees, finding "the whole parties" entitled to their "expenses as the same may be taxed by the Auditor" out of the accumulated funds. Held that the account of expenses incurred by the trustees must, in terms of the interlocutor, be taxed as between party and party and not as between agent and client. M'Gregor's Trustees v. Kimbell, p. 214. Proof Hearing on Evidence Expenses of Copy of Notes of Evidence. Where a litigant wishes the Lord Ordinary's notes of evidence, and proposes to charge their cost, if he is successful, against the opponent, he must intimate, in asking for them, that he so proposes, and get the Lord Ordinary's leave to that effect. If he simply asks for them without that intimation, then it will be held that he asks them simply for his own convenience, and he must pay for what he gets. Coppack v. Miller, 1911, 2 S.L.T. 65, commented on. Smith v. Watson, p. 411. Expenses-Taxation-Fees to Counsel in Outer and Inner House-Fees to Skilled Witnesses. In a difficult and complicated case as to whether fireclay was or was not a mineral in the sense of section 70 of the Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33), and in which the successful party had been awarded expenses, the unsuccessful party objected to the Auditor's taxation of these expenses in respect that the fees allowed to senior and junior counsel in the Outer and in the Inner House, and to the skilled witnesses, were too high. The Court repelled the objections and approved of the Auditor's report. Caledonian Railway Company v. Glenboig Union Fireclay Company, Limited, p. 412. Special Case Construction of Statute. In a Special Case brought to determine a question as to the incidence of death duties arising out of an obligation undertaken in a son's marriage contract, but turning mainly on the construction of a statute, the parties upholding the wrong construction were found liable in expenses. Dundas's Trustees v. Dundas's Trustees, p. 417. Sheriff Court-Employment of Counsel in Sheriff Court-Taxation as between Agent and Client-A.S., 10th April 1908Table of Fees, cap. 1, sec. 16. The Table of Fees annexed to the Act of Sederunt of 10th April 1908 regulating fees in the Sheriff Court contains the following entry: "The following fees to be allowed as judicial costs where the employment of counsel is sanctioned. . . ." In a Sheriff Court case counsel were employed by the defenders without sanction having been previously obtained from the SheriffSubstitute, and though a motion for sanction was subsequently made before the Sheriff, the latter was unable, owing to the case having been appealed to the Court of Session, to dispose of it. The defenders, who had on appeal been awarded expenses as between agent and client, objected to the Auditor's report disallowing the expenses of the employment of counsel. The Court allowed the defenders an opportunity of applying to the Sheriff for sanction of counsel's employment, but observed that the motion for sanction should have been made to the Judge who tried the cause, i.e., to the Judge of first instance, and that in future the motion, if not so made, would only be granted on its being shown (1) that the employment was right, and (2) that very good reason existed why it had not been made before. Reid and Another v. North Isles District Committee of the County Council of Orkney, p. 511. Client Expenses-Sheriff Court-Public Authori ties Protection Act 1893 (56 & 57 Vict. c. 81), sec. 1 (b)-Skilled Witnesses-Certification-Taxation as between Agent and -A.S., 10th April 1908, General Regulations, sec. 8- Table of Fees, cap. 10, sec. 5 (b). The General Regulations annexed to the A.S., 10th April 1908, regulating fees in the Sheriff Court provide Section 8-"This Table of Fees shall regulate the taxation of accounts as well between agent and client as between party and party.. The Table of Fees contains the following entry "Where it is necessary to employ skilled persons to make investigations prior to a proof or trial in order to qualify them to give evidence thereat, charges shall be allowed for the trouble and expenses of such persons, . . . provided that the judge who tries the cause shall, on a motion made either at the proof or trial, . . . or within eight days after the date of any interlocutor disposing of the case, certify such skilled persons for such charges. . In a Sheriff Court case certain skilled witnesses were employed by the defenders without certification having been obtained from the judge who tried the cause, either at the time or within eight days thereafter. The defenders, who had on appeal been awarded under the Public Authorities Protection Act 1893 expenses as between agent and client, objected to the Auditor's report disallow. ing the expenses of their employment, their contention being that the entry in the Table of Fees above quoted was only applicable where the taxation was to be as between party and party. Held that the entry in the Table of Fees applied where the taxation was as between agent and client, and that accordingly the expenses of their employment could not be subsequently recovered. Reid and Another v. North Isles District Commitee of the County Council of Orkney, p. 511. Sheriff Court- Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61), sec. 1 (b)-Debate Fee-Attendance Fee -Taxation as between Agent and Client -A.S., 10th April 1908, General Regula tions, sec. 6-Table of Fees, cap. 1, secs. 12 and 15. The General Regulations annexed to the A.S. of 10th April 1908, for regulating fees in the Sheriff Court, provide, sec. 6-"In causes of great importance or requiring much special preparation it shall be in the discretion of the Sheriff to allow for a debate a higher fee than is allowed in the Table, but not exceeding £7, 7s.; and that either by a direction in the interlocutor disposing of the cause or by a special interlocutor following on a motion by the party found entitled to expenses.' In a Sheriff Court case in which there had been a protracted debate before the Sheriff-Substitute and also before the Sheriff, the defenders, who had on appeal to the Court of Session been awarded under the Public Authorities Protection Act 1893 expenses as between agent and client, objected to the Auditor's report in so far as he had, inter alia, allowed only the ordinary debate fee of four guineas in each of the lower courts, and craved their Lordships to sanction the higher debate fee of seven guineas allowed by sec. 6 of the General Regulations above quoted, or to allow them to apply to the Sheriff for sanction thereof. Alternatively they craved leave to charge, in lieu of the debate fee, an attendance fee of ten shillings an hour. Held that the defenders were not entitled to charge an attendance fee in lieu of the debate fee, but that they might still apply to the Sheriff for sanction, should he think fit to give it, of the higher debate fee allowed by the Act. Reid and Another v. North Isles District Committee of the County Council of Orkney, p. 511. Expenses-Divorce-Expenses against CoDefender - Taxation - Conjugal Rights (Scotland) Act 1861 (24 and 25 Vict. cap. 86), sec. 7. In an action of divorce for adultery at the instance of a husband, the Court granted decree, and found the co-defender liable in damages and also in expenses. Held that the expenses fell to be taxed as between agent and client. Held, further, that it was not necessary to insert a direction to that effect in the interlocutor, the practice of the Auditor being in accordance with the rule. A v B and Another, p. 560. Master and Servant - Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1(4)-Unsuccessful Action against Employers-Motion for Assessment of Compensation - Expense of Obtaining Award. A workman raised an action of damages against his employers, in which the defenders obtained the verdict and a bill of exceptions was refused. On the defenders moving the Court to apply the verdict the workman moved the Court to assess the compensation to which he was entitled under the Workmen's Compensation Act 1906. There after the parties adjusted the amount of compensation, and the workman accordingly moved the Court to assess the compensation at the adjusted rate. The Court made an award of compensation at the adjusted figure, under deduction always of the defenders' account of expenses, and found the pursuer entitled to the expense of obtaining the award, modified at £5, 5s. Slavin v. Train & Taylor, p. 577. Title to Sue-Executor-Beneficiary Suing in Executor's Name-Caution for Expenses-Consignation-AmendmentA.S., 20th March 1907, sec. 2 (a). The executor of a deceased intestate having declined to raise an action to establish a partnership, of which A, one of the next-of-kin, alleged that the deceased was a member, A raised the action in his own name. The Lord Ordinary having held that A had no title to sue, A reclaimed, but in the Inner House craved leave to amend, and to sue in the executor's name on consignation of a sum of £200 in lieu of caution for expenses. Circumstances in which the Court held that A was entitled to proceed on consignation of the sum named, but with leave to the executor to apply at any stage for further indemnification should such appear to be necessary. Morrison v. Morrison's Executrix and Others, p. 578. Expenses-Law Agent-Agent-DisburserCompensation-Pars ejusdem_negotiiDecree for One of Two Separate Sums with Modified Expenses to Defender. In an action for two sums on separate grounds of liability the pursuers obtained decree for one of the two sums only, and the defender obtained decree for modified expenses. On the Court being moved to grant decree for the defender's expenses in name of the agent-disburser, the pursuers opposed the motion on the ground that they ought not to be deprived of the right to set off the sum for which they had obtained decree against the expenses found due to the defender. The Court refused the motion. Masco Cabinet and Bedding Company, Limited v. Martin, p. 597. See Agent and Client. Facility and Circumvention. See Fraud. Failure to Lodge Defences. See Sheriff. Failure to Print Amendments. See Pro cess. False Charge. See Reparation. Fishery Limits. See Justiciary Cases. Prescription Immemorial Use by Public-Navigable Non-Tidal Lake. An exclusive right was claimed to the eelfishing over the whole of Lough Neagh, a large navigable non-tidal inland lough in Ireland by the holders of a long lease, who were in right of a title to the fishings conferred by the Crown in 1661. The title of the Crown had been previously affirmed in certain inquisitions. The claimants and their authors produced some leases of the fishings in the lough, and proved occasional payments made in respect thereof at various dates since the date of the Crown grant. It was proved in defence, and not disputed, that the public had for centuries fished for eels habitually and continuously in the lough as of right. Held that the public cannot prescribe a right of fishing in inland non-tidal waters, and (diss. the Lord Chancellor, Lords Shaw and Robson) that the claimants had sufficiently established their title to the exclusive enjoyment of the fishings notwithstanding the continuous practice of fishing by the public. Per Lord Macnaghten "The Crown is not of common right entitled to the soil or waters of an inland non-tidal lake. No right can exist in the public to fish in the waters of an inland non-tidal lake." Per Lord Dunedin "The public cannot have a right to the fishing in question. The Crown may have had a right to it when it granted the patent. The only competitor to the Crown and its patentee must be some other private owner or owners, corporation or quasi-corporation." Johnston v. O'Neill, p. 638. Flooding Caused by Drainage. See Repara tion. Forum non Conveniens. See Jurisdiction. Will Reduction Averments Relevancy. Circumstances in which held that a bare averment that A had impetrated a will, taken in conjunction with the "setting" in which it appeared, which included relevant averments of the testator's weakness and facility, and of A's great influence over him, was relevant to support an issue of facility and circumvention. Horsburgh v. Thomson's Executors and Others, p. 257. See Misrepresentation. Fraud of Partner. See Contract-Partnership. Friendly Society--Process-Appeal-Sheriff -Stated Case-Competency-Dispute between Friendly Society and Member. Friendly Societies Act 1896 (59 and 60 Vict. cap. 25), sec. 68 (7). The Friendly Societies Act 1896, sec. 68, sub-sec. (7), enacts "Nothwithstanding anything contained in the Arbitration Act 1889, or in any other Act, the court and the chief or other registrar or other arbitrator or umpire to whom a dispute is referred under the rules of a registered society or branch, shall not be compelled to state a special case on any question of law arising in the case, but the court or chief or other registrar may, at the request of either party, state a case for the opinion in England or Ireland of the Supreme Court, and in Scotland of either Division of the Inner House of the Court of Session, on any question of law. . . ." Held that an appeal by way of stated case, submitting for the opinion of the Court certain questions of law decided by the Sheriff, was incompetent and must be dismissed. Johnston's Trustees v. Special Committee of Glasgow Corporation, December 21, 1911, 49 S.L.R. 269, followed. Smith v. Scottish Legal Life Assurance Society, p. 457. Trade Incorporation-Alteration of Bye-Laws-Act for the Abolition of the Exclusive Privilege of Trading in Burghs in Scotland (9 and 10 Vict. cap. 17), sec. 3. The only surviving member of an ancient incorporation of tailors petitioned the Court, under section 3 of the Act for the Abolition of the Exclusive Privilege of Trading in Burghs in Scotland, to give its sanction to certain alterations in the bye-laws of the incorporation. The petition was opposed by representatives of the tailors' trade on the ground that the petitioner's proposal was really a scheme to endow his own relatives, and the respondents suggested that they themselves should be allowed to submit a scheme, or alternatively that the Court should remit to some person to submit one. The Court dismissed the petition de plano, holding that it was not "just and expedient" to sanction the proposed alterations, and (dub. Lord Dundas) that the Court was not entitled to adopt the suggestion of the respondents that it should create a scheme of its own and impose it upon the incorporation. Incorporation. Incorporation of Tailors of Edinburgh, Petitioners, p. 480. Friendly Society- Trade IncorporationBurgh Trading Act 1846 (9 and 10 Vict. cap. 17), sec. 3-Application of Funds of Society nearly Extinct. An ancient incorporation of maltmen of a certain burgh, who had at one time had the privilege of exclusive trading, having become reduced to one member, presented a petition under the third section of the Burgh Trading (Scotland) Act 1846 for the interposition of the authority of the Court to certain proposed bye-laws or resolutions, of which the principal were to the effect that the funds should be held by a governing body consisting of the sole survivor and of the magistrates of the burgh, and of any other members of the incorporation who might be elected thereto; and that, after paying expenses of management and pensions, grants, and allowances according to use and wont the surplus funds should be paid to a certain educational trust in burgh for such of the purposes of the trust as the foresaid governing body might decide. The Lord Advocate, as representing the Crown as ultimus hæres, did not object. The Court, after a remit, approved of the resolutions. Incorporation of Maltmen of Stirling, Petitioners, p. 598. See Statute. Gas- Works. See Valuation Cases. Golf Course. See Valuation Cases. Grocer's Licence. See Valuation Cases. Growing Timber. See Entail. Guarantor. See Contract. Heir in Possession. See Entail. Housing, Town Planing, &c. See Burgh Husband and Wife-Capacity of Married Woman to Contract--Mandate by Married Woman to her Father's Trustees to Retain her Share of his Estate-Assignation by Married Woman of Spes successionis. A daughter executed and delivered to her father a holograph writing whereby she undertook that in the event of her husband being indebted to him at the time of his death "the amount of said indebtedness shall . . . form a debt due by me, and a deduction from my share A of your means and estate." Held that the writing was a mandate by the daughter to her father's trustees to retain her share of his estate in liquidation of her husband's indebtedness to him, and that she could validly convey her right in her father's estate though merely a spes successionis. Coats v. Bannochie's Trustees, p. 251. Husband and Wife - Marriage-ProofPresumption of Legitimacy. The success of certain claimants in a multiplepoinding depended on their proving a marriage, alleged to have taken place in 1819, between A, their paternal grandfather, then a young army officer, and B, a straw-hat maker in Glasgow. The precise date of the marriage, which was alleged to have been regular though secret, was unknown. There was no documentary proof regarding it, and the only evidence as to where and when it took place was hearsay, mainly derived from B's statements concerning it. and B never lived together, and the existence of the marriage was never disclosed, if it ever were, to A's relations until after his death, which occurred in 1825 while he was serving with his regiment in Jamaica. No mention of his wife or child was made in any of A's letters to his family from Jamaica. In the regimental records A was described as unmarried, and on his death his effects were handed over to his father. application for pension was made by or on behalf of B as his widow. There was evidence, however, that A's father recognised the child of the alleged marriage as A's son when he met him on the street and that he paid for his schooling, and an entry was produced from the baptismal registry of an Episcopal church in Glasgow which might have referred to the son of the alleged marriage, and which it was maintained inferred his legitimacy. Held that the marriage had not been proved. Observed (per the Lord President) that the presumption of legitimacy applies where the parties are living in the married state, and does not apply where the de quo queritur is whether there was a marriage or not. Lillie (Deans' Factor) v. Deans and Others, p. 372. No Divorce for Adultery - Collusion. Observed (per the Lord President) that a reference to English decisions as to the meaning of collusion was, looking to the difference between the two systems of law in regard to these matters, misleading, and that to prove collusion according to the law of Scotland it must be shown that the oath of calumny has been falsely sworn. The mere fact that a woman, who may have repented of misconduct, gives information to her husband afterwards is not collusion. A v. B and Another, p. 560. - See Insurance-Succession. Inability to Find Suitable Work. See Master and Servant. Incapacity for Work. See Master and Servant. an Income Tax. See Revenue. Innuendo. See Proof-Reparation. Insanity. See Proof-Process. Insurance-Life Insurance-Husband and Wife-Bankruptcy - Married Women's Assurance Policies Act 1880 (43 and 44 Vict. cap. 26), sec. 2. By a policy of assurance or "endowment bond' assurance society, in consideration of the payment of a certain sum annually in advance, promised to pay to the assured on the maturity of the bond, twenty years after the date thereof, the sum of £1136. The society further promised that in the event of the death of the assured before the expiration of the twenty years, and while the bond was in force, to pay immediately upon receipt of satisfactory proof of death, the amount of the bond, £1000, to his wife if living, and if not to his executors, administrators, or assigns. The assured died before the expiration of the twenty years. Held, in a Special Case (dub. the Lord President), that the policy or bond was protected by the Married Women's Policies of Assurance (Scotland) Act 1880, sec. 2, and that the widow of the assured, and not the trustee on his sequestrated estate, was entitled to the proceeds of the policy. Gibson (Chrystal's Trustee) v. Chrystal, p. 726. Marine Insurance · "Perils of the Sea"-Damage by Water. Goods belonging to the appellants, stored in a hulk moored in a tidal river, were damaged by leakage. Appellants had insured the goods with respondents, and claimed under the clause in the policy covering perils of the sea. Held that the damage was not due to a sea peril. Sassoon & Company v. Western Assurance Company, p. 1045. 66 Insurance Company. See Revenue. Interdict-Process-Sheriff-JurisdictionAppeal on Question of Breach of Interdict -Sentence of Fine or Imprisonment. It is competent to appeal to the Court of Session against a sentence by a SheriffSubstitute imposing a fine for breach of interdict with the alternative of imprisonment. Maclachlan v. John W. Bruce & Company and Another, p. 433. See Nuisance. Interest-Rate of Interest-Trustee Held Liable for Loss Caused by his Negligence. Where a trustee's negligence in parting with a disposition of part of the trust estate without getting payment of the price, and in delaying to take steps for recovery of the price, resulted in a loss to the trust estate, the Court held him liable in simple interest on the sum lost at 3 per cent., as being the average rate of trust interest. Schulze and Another (Lees' Trustees) v. Dun and Others, 50. See Revenue. Interlocutor. See Expenses. Interpretation. See Statute. Judicial Factor-Curator Bonis--Discharge and Appointment of New Curator-Expenses of Discharge. A curator bonis on a small estate received the offer, fifteen |