sonal Diligence Act, 1 and 2 Vict. cap. 114. Held (1) that it is incompetent to use arrestments on the dependence of an action of reduction or of any other action containing no petitory conclusion other than that for expenses; (2) that a conclusion for expenses is not a "conclusion for payment of money" within the meaning of the Statute 1 and 2 Vict. cap. 114, sec. 16. Stafford (Petitioner) v. M'Laurins (Respondents, p. 82. -See Diligence-Company. Assessment-Property and Income-Tax Act, 5 and 6 Vict. cap. 35-Lease-Deer Forest. Held that a lessee of a deer forest is liable to be assessed under the Property and Income-Tax Act upon the amount of rent payable as the annual value of the subject. Observed, that so far as lands and heritages are concerned, the rule of assessment under the Property and IncomeTax Act is the same as under the Poor Law Act. Sir G. N. Broke-Middleton, Bart. v. The Inland Revenue, p. 378. -Property and Income-Tax Act, 5 and 6 Vict. cap. 35-Profits. The Glasgow Corporation Gas Commissioners were undera local Act empowered to manufacture and sell gas to the inhabitants of Glasgow and suburbs. It was provided that the balance of revenue, after certain payments of interest on debt and of annuities, was to be carried to the credit of the corporation for their general purposes. Held that, as under this Act the corporation were traders in gas, the balance was assessable as profits under Schedule D of the Income-Tax. Observations (per curiam) on the distinction to be drawn between this case and that of The Glasgow Corporation Water Commissioners, May 26, 1875, 2 Rettie 708. The Inland Revenue v. The Glasgow Corporation Gas Commissioners, p. 556. -See Franchise-Sheriff. Assignation. See Bond. Auditor's Report. See Process. Authority to Feu. See Trust. Back Letter. See Disposition. Bail. See Crime. A Ballot Paper. See Municipal Election. Bank-Crossed Cheque-Forgeries-Liability. clerk of P, a customer of the Royal Bank, presented there a crossed cheque drawn in P's favour by D on the Clydesdale Bank, and endorsed by P. D was not a customer of the Royal Bank. The Royal Bank cashed the cheque, and thereafter presented it to the Clydesdale, who paid the money. Ten days after, the Clydesdale discovered D's signature and P's endorsation to be forgeries. Held, in action at instance of the Clydesdale against the Royal Bank, that the Royal Bank had acted merely as agent for getting the money for P, and was not liable, not being lucratus, and no mala fides being alleged. Clydesdale Banking Co. v. Royal Bank of Scotland and Others, p. 367. Bankruptcy Trustee-Bankrupt, Estate of— Slander -Title to Sue-Damages. An undischarged bankrupt obtained a verdict for £400 in an action of damages for slander uttered at a date subsequent to the sequestration, but at a time when no proceedings under that sequestration were being taken, and the trustee presented a petition seeking to attach this fund for behoof of the creditors. Held that the bankrupt having liquidated his personal claim for damages, the sum of money thus obtained vested in the trustee as a part of the bankrupt's estate, subject to any claim which he (the bankrupt) might have for trouble and expense in recovering the fund. Jackson v. M'Kechnie, p. 65. Bankrupt-Sequestration-Petitions-Recall-Process. On a petition in the Sheriff Court by a creditor for sequestration of a debtor's estate, a first deliverance was pronounced granting warrant to cite the debtor within seven days after citation to show cause why sequestration should not be awarded. Pending the running of the induciæ, the debtor himself, and a concurring creditor, on petition to the Bill Chamber, obtained sequestration. In petitions at the instance of each party for recall of the sequestration obtained by the other-held (1) that the date of the first deliverance being the statutory date of the sequestration, the Sheriffcourt sequestration must stand; and (2) that in conformity with the course followed in Jarvie v. Robertson, 25 Nov. 1865, 4 Macph. 79, the Bill Chamber sequestration fell to be recalled hoc statu, and the judgment of recall to be entered in the Register of Sequestrations and on the margin of the Register of Inhibitions, in terms of sec. 31 of the Bankruptcy Act. Kellock (petitioner and reclaimer) v. Anderson and Others, et e contra, p. 161. C -Ranking-Guarantee-Double Ranking. guaranteed W from all loss arising out of transactions between him and S. W drew bills on S and discounted them. These were partly for value and partly not. C, W, and S became bankrupt. The banks holding the bills ranked on the estates of S and W, and drew a dividend from each, but not amounting in all to full payment. In a question between W's trustee and C's trustee-held (1) that W's trustee could only rank on C's estate for the sum actually paid by him as dividend in respect of the bills, and not for the whole amount of the bills to the extent of drawing what was actually paid; and (2) that the trustee on C's estate was not entitled to require the trustee on W's estate to give any relief to the estate of S in respect of the dividend paid from that estate on bills accepted or drawn by S for the accommodation of W, or to state the amount thereof, or of any dividend paid thereon by the estate of S as an item to the debit of W in balancing accounts between the two estates. C and W were also engaged in other transactions, and bills were drawn for accommodation of W, and the banks holding the bills ranked upon and drew dividends from the estates of Cand W. Held that C was not entitled to retain the sum paid in respect of these other bills as a set-off against W's claim under the guarantee in the first transaction, because, as these other bills had already been ranked on W's estate by the banks, to admit C's retention in respect of them would be to sanction a double ranking on W's estate. Mackinnon (Crawford's Trustee) v. Anderson (Watson & Campbell's Trustee), p. 385. Bankrupt-Discharge-Claim-Intimation to Creditors-Guardian and Ward. A undertook the upbringing and education of his deceased brother's children till they attained majority, when they ceased to live in family with him. Thereafter he became bankrupt, and was sequestrated, but obtained his discharge on payment of a small composition. Held that a claim made by the discharged bankrupt for sums expended on the said children could not be maintained by him, he having failed to include the same as an asset at his sequestration. James Kerr v. Mrs Emilia M'Millan Kerr or Moody and Husband, p. 480. -Statute 19 and 20 Vict. cap. 79, sec. 111Sequestration. A bankrupt after the date of his sequestration, but before it had been advertised or made known in any way, paid a debt and got from his creditor a bill (which was the ground of that debt), accepted by the bankrupt and several co-acceptors, and a letter of guarantee from another party. In an action by the bankrupt's trustee for repetition of the money so paid-held that the trustee by merely restoring said bill and letter of guarantee to the creditor might not "replace him in the situation in which he stood" in the terms of the 111th section of the Bankruptcy Act, in respect that it was alleged that the co-acceptors had subsequently became insolvent and that the guarantor had left the country; and inquiry ordered as to the truth of the said allegations. Pearson (M'All's Trustee) v. Ferguson, Davidson, & Co., p. 520. Banns, Proclamation of. See Church. Beneficiary. See Trust. Bequest. See Succession. Bill. See Principal and Agent-Process. Bill Chamber. See Process. Board of Education. See School. Bodily Injury. See Reparation. Bona fide Possession. See Landlord and Tenant. Bond and Disposition in Security—Assignation. A, the holder of a bond and disposition in security, assigned to B for an onerous cause the heritable subjects held by him under his bond. There was no direct conveyance of the bond itself, or of the sum due, but the assignation was declared to be in real security of that sum. The deed contained an assignation of all right, title, and interest which A had to the subjects, and among the writs delivered to B, "according to inventory," was a copy of the bond and disposition in security. Held (reversing the judgment of the Lord Ordinary, in a competition between B and the trustee upon A's sequestrated estate) that although not in the statutory form, there was a valid assignation to B both of the debt and of the security. Douglas v. M'William & M'Cutcheon, p. 358. Bond and Disposition in Security. See Debtor and Creditor. or more, in respect of lands and heritages situated beyond the existing boundaries of any royal or parliamentary burgh in Scotland, may present a petition to the Sheriff of the county in which such burgh or part of a burgh is situated, praying him to take the steps provided by this Act for extending the boundaries of the burgh to the extent to be specified in such petition; and the Sheriff shall, within three weeks from the date of the presentation thereof, define and specify in a written deliverance on the petition such boundaries, which shall include an area two-thirds of which is wholly or partially built on or laid out for building, as in his opinion would be suitable for the extended boundaries of the burgh, and the same shall be thereafter published by advertisement in such manner as the Sheriff shall direct; and it shall be lawful for the proprietor of any unbuilt-on land within the proposed extended boundaries, or to the Police Committee of the county to be appointed in terms of any Act passed during the present session of Parliament, within one month after the last advertisement so appointed, to appeal by Note of Appeal to any one of the Lords Ordinary of the Court of Session, who shall have power in a summary way to dispose of such appeal after such inquiry as to him shall seem fit; and the judgment of such Lord Ordinary dismissing such appeal, or sustaining the same in whole or in part, shall be final and conclusive." In a petition presented by certain ratepayers to the Sheriff for the purpose of extending the boundaries of a burgh, the Sheriff found that the boundaries described in the petition, or any others which might be within its scope, did not contain an area twothirds of which was wholly or partially built on or laid out for building, and also that the boundaries were not such as would be suitable for the extended boundaries of the burgh. The petitioners, and also the magistrates and town-council of the burgh, on whom intimation of the petition had been made, and who had complained, appealed to the Court of Session. Held that the appeal was incompetent, there being no review of the Sheriff's judgment except what was expressly provided by the Act. Dubs and Others v. Police Commissioners of Crosshill and Others, p. 484. Breach of Interdict. See Process. Breach of Trust and Embezzlement. See Crime. Burgh-Stat. 3 and 4 Will. IV. c. 76—Construction -Municipal Election. In a question as to a municipal election, upon a construction of the Statute 3 and 4 Will. IV. c. 76-held (reversing Lord Young) (1) that the words in section 16 of that Act," one-third, or a number as nearly as may be to one-third, of the whole council shall go out of office" each year, mean onethird when the number of councillors fixed by the set or usage of the burgh is divisible by three, and as near as may be to one-third when it is not so divisible; and (2) that when any of the members of three years' standing die in the course of the year when they would otherwise have fallen to go out of office, they are to be reckoned among the retiring third, but that when any member dies before entering on his third year of office he is not to be so reckoned, and the retiring third must be made up of councillors of two years' standing, beginning with him who had the smallest number of votes. Thomson and Others v. Hamil ton and Others, p. 293. Burgh. See Franchise-School-Election-Boundary. Bye Laws. See Ship. Cancellation of Deed. See Testament. Carriage of Goods. See Reparation. Church-Churchyard - Presbytery · Jurisdiction · Churchyard, Designation of-Notice- Appeal— Competency. A suspension and interdict was brought against a Presbytery and the heritors of a parish by a proprietor, a portion of whose ground had been designated for an addition to the churchyard. Want of notice of the proceedings was pleaded, and this was further alleged as a reason why no appeal had been taken to the Sheriff under the Ecclesiastical Buildings (Scotland) Act (31 and 32 Vict. c. 96).-Held (reversing the Lord Ordinary's judgment, and diss. Lord Ardmillan) (1) that an appeal not having been timeously taken to the Sheriff, the proceedings of the Presbytery were final, unless it could be satisfactorily shown that there had been a serious violation of the ordinary rules of the administration of justice in all courts of competent jurisdiction, whereby inequity or injustice had resulted; and (2) that as regarded the facts, there was no ground for the allegation of insufficient notice or other circumstances to justify the interference of the Court. Held that it was regular and competent for a presbytery, after finding that a piece of ground was suitable and convenient to be designated as a churchyard, to proceed to designate or set apart that ground as belonging to the churchyard, to put a value upon it, and to appoint the proprietor and tenant to remove. Walker and Another v. The Presbytery of Arbroath, &c., p. 323. -Allocation of Area-Quoad sacra ParishHeritors Act 7 and 8 Vict. c. 44, secs. 8 and 9. The parish of E. was disjoined quoad sacra from the parish of J. In a petition to allocate the area in the reseating of the parish church of J. -held (diss. Lord Deas, dub. Lord Mure) that the heritors of the quoad sacra parish were not entitled to claim an allotment corresponding to the territorial extent of their lands; but their claim for family sittings reserved. Question, whether the quoad sacra heritors would still be liable for the maintenance and erection of the parish church? Observations on case of Drummond v. Heritors of Monzie, &c., 1773, M. 7920. Appeal-Duke of Roxburghe and Others, p. 498.. -Manse - Presbytery — Heritors—Expenses— Act 31 and 32 Vict. cap. 96 (Ecclesiastical Buildings and Glebes Act). On a petition by a minister for repair of his manse being presented to the presbytery, they employed a man of skill to report. The heritors objected to the report, which recommended alterations, and under the Act 31 and 32 Vict. cap. 96, appealed the case to the Sheriff, and afterwards to the Court of Session, when a remit was made to a second man of skill. His report, which did not materially differ from the first, was acted upon. In an action by the presbytery against the heritors for the expenses of the first report-held that the latter were liable, and the defence that such expenses could only be recovered in the former process, repelled. Observed that these expenses did not form part of the expenses of the former process, to which the presbytery could not be parties, being excluded by statute, but were expenses due in respect of the presbytery having been under the necessity, in the exercise of a public duty, of employing a man of skill. Mitchell and Others v. The Heritors of Pitsligo, p. 641. Church. Parish quoad sacra—Marriage-Proclamation of Bunns. Held (aff. judgment of Court of Session) that the proclamation of banns is one of the functions and duties of the office of minis ter of a church erected into a parish church under the Act 7 and 8 Vict, c. 44, for the district attached thereto as a parish quoad sacra. Hutton v. Harper, p. 740. Churchyard. See Church. Claim. See Bankruptcy. Clause of Devolution. See Entail. Clause of Repayment and Indemnity. See Feu-con tract. Clause of Survivorship. See Succession. Commissioners of Police-Statute 25 and 26 Vict. cap. 101, secs. 35 and 156 (Police and Improvement Act 1862)-Private Roads Act. The 35th section of the Police and Improvement (Scotland) Act 1862 provides, in the event of its adoption by a burgh, for the repeal of any general or local Police Act inconsistent with it and in operation within the burgh.-Held that a County Road Act, proceeding upon the principle of transferring all the roads in the county situated in a burgh to the Commissioners of that burgh, was not a local Act repealed by the adoption of the Police Act. Commissioners of Police of Kirriemuir v. Reid's Trustees, p. 644. Common Carrier. See Railway. Common Stairs. See Summary Prosecution. - -Voluntary Winding-up — Extraordinary Resolution-Notices, Form of-Companies Act 1862, sec. 129, subsec. 3. Notice was given of an extraordinary meeting of shareholders in a company "to consider and, if approved of, to sanction the voluntary winding-up of the company. The directors enclose a balance-sheet. From the results of that balance it will be apparent that it is hopeless to carry on the company with any prospect of success," &c. At the meeting an extraordinary resolution to wind up voluntarily was passed under the 3d sub-section of the 129th section of the Companies Act 1862, and a liquidator was appointed.-Held that this resolution was invalid as an extraordinary resolu tion under the 129th section, and that the liquidator had no title, the notice not disclosing that it was proposed to pass such a resolution for winding-up as would not require confirmation by a subsequent meeting. Wilson (Liquidator of the Glasgow and District Co-Operative Society, Limited) v. M'Genn & Company, p. 303. Company - Jurisdiction - Arrestment · Voluntary Winding-up. Held that the Court had no power to stay the proceedings of a creditor against a company in voluntary liquidation, but that to give the Court such power the company must be wound-up by the Court or under the supervision of the Court. Sdeuard v. Gardner & Son, p. 363. Companies Act 1862- Voluntary Winding-up -Notice. Held that a notice of an extraordinary general meeting "to consider and resolve whether under existing circumstances the company should be wound up, and if so resolved upon to decide in what manner this should be done," was a good notice in terms of section 129, sub-section 2, and section 51. Sdeuard v. Gardner & Son, p. 363. -Voluntary Winding-up under the Supervision of the Court-Companies Act 1862, sections 147, 148, and 151. In an application under sections 147, 148, and 151 of the Companies Act 1862, for the voluntary winding-up of a company under the supervision of the Court, an order was made for intimation for two days on the walls and in the Minute-Book, and for advertisement, and thereafter the Court ordained the winding-up to continue, subject to its supervision, "with liberty to creditors and contributories to apply to the Court by motion." Petition-Christie and Others, p. 399. -Edinburgh Street Tramways Acts, 1871, 1873, 1874-Statutory Agreement-Fares. The Edinburgh Tramways Company were bound by their original Act of 1871 to carry passengers at one penny per mile. A statute in 1874 permitted them to establish omnibuses on certain sections in place of laying down lines, and to charge "twopence per mile for first-class passengers on those routes and any tramway routes worked in connection therewith."-Held that this provision did not apply to journeys performed in cars only. Observed (per Lord Ormidale) that where there was ambiguity such statutes must be construed for the public and against those who enjoyed the concession. The Edinburgh Street Tramways Co. v. Torbain, p. 432. -See Principal and Agent. Compensation-Lands Clauses Consolidation ActRailway Company. A railway company served notice of their intention to take for the purposes of their railway a certain portion of a farm. Notice was served upon the tenants in possession, and afterwards upon the firm of the landlord's agents, who had, in answer to an application from the company, intimated their readiness to accept service for him. When the clerk of the company served this notice upon the agents he was informed by one of the firm that the tenants in possession had renounced their lease of the farm, which had been re-let to a new tenant for a number of years. The lease to the new tenant had only been signed by the landlord upon that day, although The executed by the tenant two days earlier. new tenant subsequently lodged a claim with the company for compensation, and the company thereafter brought a suspension of certain proceedings at his instance. Held that as against the company he could have no claim for compensation, in respect (1) that he had failed to prove that prior to the date upon which the notice to take was served there was a completed contract of lease between him and his landlord; and that (2) no right could be created after that date to the prejudice of the company. Observations upon the effect of a notice that lands are to be taken compulsorily under statutory powers. Observations (per Lord Justice-Clerk) upon the doctrine of tantum et tale, and the position of a purchaser acquiring lands in virtue of statutory powers. North British Railway Co. v. Lindsay and Others, p. 97. Company-Contract - Damage - Defence. Storekeepers received a quantity of grain from the owners for storage without express contract. In a petition at their instance for warrant to sell a portion of the grain which remained in their hands undelivered, in payment of their storage account,—held that an illiquid claim of damages for injury received by the grain when in the petitioners' hands, restricted to the amount of the account sued for, was a competent defence. Gibson & Stewart v. Brown & Co., p. 205. -See Servitude. Competency. See Company-Arrestments-Church Concealment of Property by Debtor. See Crime. Where it was alleged that a plot of ground conveyed by A to B was identical with a plot which had formerly given right to a servitude of way over the rest of A's ground, observed (per the Lord President) that in such circumstances the servitude was not extinguished confusione by the fact that both plots had come into A's possession, but might be revived without constitution de novo if the two plots were again separated. Magistrates of Glasgow v. Waltons, p. 646. Constructive Conversion. See Succession. Construction. See Testament-Domicile-Superior and Vassal. Constitution. See Lease. Consummation. See Summons. Contribution. See Marine Insurance. Contract · Disposition Essential Error- Restitution. A entered into a contract of sale of property to B, under burden, as A understood, of a feu-duty of £9, 158. The disposition omitted mention of the burden, and on proof it was found that in granting it A laboured under essential error, of which fact B was aware. Held (1) that reduction of the disposition and claim for restitutio in integrum was competent, and was the proper remedy, and decree given accordingly; and (2) that the remedy of varying the disposition so as to constitute the feuduty a real burden on the subjects for the future, and ordaining B to pay arrears, was in the circumstances incompetent. Gilmour and Others (Stuart's Trs.) v. Hart, p. 105. Company-Essential Error - Advertisement - FeuDuty. Nadvertised his house for sale, "feu-duty £9," and further directed intending purchasers to his agents, "in whose hands are the titledeeds." S purchased the house "as advertised" without further inquiry, and entered into possession. When the disposition came to be prepared it was found that the £9 in use to be paid by N consisted of £5 feu-duty and £4 ground-annual, being the proportion effeiring to this house of certain larger burdens extending over a larger piece of ground of which this house formed a part, which burdens had never been regularly allocated. In an action at the instance of N to compel S to implement the contract by taking a disposition, S refused to take any disposition unless he were either guaranteed from any greater payment than £9 or the burdens were regularly allocated. Held that S was not justified in his refusal, in respect that (1) the advertisement imported the titles into the contract, and did not essentially misrepresent the true state of matters; and (2) that S had never examined the titles though invited to do so. Nisbet v. Smith, p. 493. -Foreign-Stamp. Held (1) that a contract between a Scotchman and a Frenchman, made in France, which did not set forth a specific place of performance, but was admittedly based on a prior contract signed at the same time, and to be performed in Scotland, was a Scotch contract; and (2) that the Court could not entertain the objection that by the law of France the contract was void in respect it was not stamped. Valery v. Scott, p. 622. Compensation -See Sale School-Affreightment. Contravention. See Crime. Conviction. See Harbour-Appeal. Reparation Cottage. A cottage is a single-storey building, but that does not exclude the addition of apartments in the roof with windows. Opinion (per the Lord President and Lord Rutherfurd Clark, Ordinary) that under the circumstances, as the dimensions of the building areas were not inserted in the contract, it was not intended to restrict the vassal absolutely within the area specified upon the plan, and that it was not incorporated to that effect with the feu-contract. Naismith v. Cairnduff, p. 559. County. See Franchise-Burgh. Counsel and Client-Advocate- Liability for Misconduct of Cause. An advocate in undertaking the conduct of a cause enters into no contract with his client, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action, even if the client's interests are thereby prejudiced. Batchelor v. Mackersy and Pattison, p. 589. Creditor. See Debtor-Poinding the Ground. Crime--Petition for Liberation--Bail--Capital Offence. Held that theft committed by a person who has been more than once convicted of theft is still in law a capital offence, and not bailable without the consent of the Lord Advocate. John Wilson, petitioner, p. 4. -Liberation-Bail-Breach of Trust and Embezzlement-Theft. A prisoner was committed on the charge of (1) falsehood, fraud, and wilful imposition, and (2) breach of trust and embezzlement, or, alternatively, with theft. A petition for admission to bail was presented, on the ground that the narrative of the petition on which the prisoner was committed was not relevant to support a charge of theft; that the other crimes charged were bailable; and that the circumstances warranted the equitable interference of the Court. Held that the Court could not in such an application decide the question of relevancy, and that the prisoner's circumstances were matter for the Crown. Joseph Dawson Wormald, petitioner, p. 119. Crime-Indictment- Verdict-Relevancy - Concealment of Property by a Debtor. The major proposition of an indictment set forth the crime of "fraud, particularly the fraudulently and feloniously putting away or carrying off or secreting goods and effects by an insolvent or other debtor with intent to defraud his creditors. After trial a verdict of "guilty as libelled" was returned.-Held (1) that as there was here no alternative charge, a general verdict might be returned; (2) (diss. Lord Young) that as the charge by the insertion of the words "or other" was not limited to the case of an insolvent debtor, the indictment was bad. Opinion -per Lord Young-that the question of the solvency or insolvency of the debtor was immaterial, but that it is essential to the constitution of the peculiar kind of fraud charged that something shall have occurred to impose upon the debtor the legal duty of disclosure and surrender of his goods to his creditors. Clendinnen v. Roger, p. 120. -Libel-Relevancy-Locus-Modus- Murder -Cruel and Unnatural Treatment of an Infant Child The Lord Advocate v. Watson, by its Father. p. 165. -Trespass-Statute 2 and 3 Will. IV. c. 68— Game. Appeal against a conviction of trepassing in pursuit of game, under the Statute 2 and 3 Will. IV. c. 68 (The Day Trespass Act), sustained-the appellant being the manager of, and resident upon, the farm on which he was said to have trespassed, and having been authorised by the tenant, who was his father-in-law, to kill rabbits-the right to kill them not being reserved to the landlord in the lease. M'Adam v. Kennedy Laurie, p. 322. Indictment-Relevancy - Theft - Breach of Trust and Embezzlement. The major proposition of an indictment charged a prisoner with the crimes of theft, as also breach of trust and embezzlement, under the following circumstances:-The prisoner, who was a law-agent, was alleged to have by his representations induced a client to allow him to uplift certain sums of money lying in bank upon depositreceipts in the client's name, for the purpose of investing them on heritable security, and having uplifted them by means of the authority so obtained, he was charged with stealing them, or otherwise with embezzling and appropriating them to his own uses and purposes.Held that under the circumstances set forth there was a relevant charge of theft libelled. The Lord Advocate v. Joseph Dawson Wormald, p. 400. -Salmon Fisheries Act 1844 (7 and 8 Vict. c. 95)-Contravention. A fisherman set lines, as he averred, for flounders in an estuary frequented both by flounders and sea trout, and fish of the latter species having taken the hook |