Implement. See Servitude. Implement of Decree. See Diligence. Implied Revocation. See Succession. Implied Right. See School. Impotency. See Husband and Wife. "Industrial Schools Act 1866," 29 and 30 Vict. cap. See Affreightment. The Insurance-Warranty-Fraud-Assignee-Assignatus utitur-jure auctoris-Latent Conditions. In an action of reduction of a policy of insurance, brought by the Insurance Company against onerous assignees of the assured,-held that allegations of breach of warranty and fraud on the part of the assured were relevant against the assignees. The Scottish Widows Fund. Buist and Others, p. 659. --See Marine Insurance-Ship. Intention of Testator. See Succession. Interdict. See Nuisance. Intimation of Assignation. See Partnership. Intimation to Creditors. See Bankruptcy. Ish and Entry. See Servitude. Reduction - Essential Error Inductive Issues Cause In an action of reduction of a de præsenti deed of gift granted by the pursuer in favour of the defender on the grounds (1) of essential error, and (2) of fraud on the part of the defender and the agent employed by the pursuer to draw the deed-held not necessary to insert in the issue that the essential error was 66 "induced by the defender." M'Laurins v. Staffords, P. 174. Joint Adventure - Fraud - Guarantee. A firm entered into a contract of joint-adventure with the lessee of a certain mine, by which they were to grant to him their acceptance of two bills, each for £1000 at twelve months, as a bonus for a half share in the lease, he giving a guarantee that the profits upon the mine should amount in the first year, or at all events in the first two years, to £2000, and be first applied to payment of their acceptance. After more than two years, as the mine yielded no return, they brought an action for the purpose of having the agreement reduced on the ground of fraud, and themselves relieved of all claims under the bills. Held that in the circumstances there was no proof of fraud, but that as there was no reasonable prospect of profits being realised, the pursuers were entitled to put an end to the joint-adventure, and that the defender was bound to make good his guarantee by retiring their acceptance. Observations upon the legal principles applicable to joint-adventures. Miller & Co. v. Walker, p. 143. Judicial Factor-Discharge-Accounts-Audits. In an application for discharge by a judicial factor there was produced in process an extrajudicial discharge which had been granted to him by the sole beneficiary, and it was stated that the accounts of the factor had been examined by an accountant acting on behalf of this beneficiary. In these circumstances it was urged for the factor that there was no necessity for a judicial audit, but that he might be at once discharged, or at all events that a warrant should be granted for delivery of his bond of caution. The Lord Ordinary, upon the authority of the case of White (July 17, 1860, 22 D. 1473), granted the warrant for delivery of the bond of caution, but as there had been no judicial audit, refused to grant a discharge. Aiton's Factor, petitioner, p. 175. -Curator Bonis - Powers. A curator bonis added to his ward's estate by purchase of certain subjects without judicial sanction. He then applied to the Court for their sanction and approval, and for authority to borrow over the subjects. The reason of the omission to apply before making the purchase was explained chiefly to be that if he had come to the Court and disclosed his intentions the price of the property would have risen in the market, and he would have been prevented from acquiring it. The estate was further said to be greatly benefited, and on remit to a man of skill that statement was confirmed. Held that the rule which forbade the exercise of such a power without previous sanction is not of absolute inflexibility, and that in the special circumstances of the case the application might be granted. Gilray (curator bonis to Robertson), petitioner, p. 395. Jure auctoris. See Insurance. Jurisdiction-Sheriff-Lease. A raised an action in the Sheriff Court against B for implement of a contract of lease. B denied that he had ever entered into such a contract. Held that as the action involved no competition of real rights, the Sheriff had jurisdiction to deal with it. Robertson v. Cockburn, p. 15. ·Sheriff-Statute 13 and 14 Vict. cap. 33, secs. 73, 213, 285, 286, 307-310-19 and 20 Vict. cap. 103, sec. 64-Police Commissioners. Held that proceedings for recovery of expenses under section 64 of the Nuisances Removal Act, 19 and 20 Vict. cap. 103, are regulated by sections 307-310 of the Police Act, 13 and 14 Vict. cap. 33, and that sections 285-6 of the Police Act, whereby the Sheriff's jurisdiction is in certain matters declared final, do not ap ply. Dundee Police Commissioners v. Robert Hardy Mitchell, p. 484. Jurisdiction. See Company-Landlord and Tenant— Sheriff-School-Church-Appeal. Jury. See Process. Landlord and Tenant-Sheriff-Jurisdiction-Lease. The Sheriff in a petition at the instance of a landlord ordained a tenant during the currency of a lease of an urban subject to stock and plenish her premises with furniture sufficient in value to afford security for the current rent, otherwise to find caution for payment, and upon failure to implement this order he granted a further warrant summarily to eject her-Held that as these proceedings were for the purpose of enforcing, and not of rescinding, the lease, they were competent. Wright v. Wightman, p. 29. -Reparation-Game-Relief. A let the exclusive right of shooting and sporting and killing game and rabbits over his estate to B, who was bound to maintain during the currency of the lease a fair stock of game and rabbits, and to exercise the shooting in a sportsmanlike manner. In consequence of a great increase in the number of rabbits, much damage was done to the agricultural tenants, who were bound by their leases to preserve the game and rabbits, and had been interdicted from shooting the rabbits. Two of these tenants raised actions of damages against A, their landlord, who in his turn brought actions of relief against B, as game tenant.-Held that A was answerable to the agricultural tenants for the damage done, but that he was entitled to relief from B, who, in permitting the estate to be so overstocked with rabbits had not made a fair and reasonable use of the subject let to him. Byrne v. Johnson, p. 170. -Lease-Minerals-Reparation-Violent Profits-Bona fide Possession. A proprietor let the coal and fire-clay in his estate to a tenant under a lease and minute of agreement, whereby he (the proprietor) was empowered, in the event of the tenant's death during the currency of the lease, to resume possession of the colliery, "if he should at any time thereafter be dissatisfied with the working thereof by the representatives" of the tenant. The tenant died during the currency of the lease, which was transferred to his representatives. Thereafter the proprietor, being dissatisfied with the management of the colliery by the said representatives, intimated to them his intention of resuming possession thereof. The representatives refused, and denied the proprietor's right, and he accordingly brought an action against them for declarator that he was entitled to resume possession of the colliery, and that they were bound to remove therefrom, and for decree ordaining them to concur with him in having the plant and machinery valued. In this action the Lord Ordinary gave decree in favour of the proprietor, and the Inner House on a reclaiming note adhered. The proprietor then brought an action against the representatives, concluding for a sum of money, which he explained in the condescendence represented the amount due by the defenders as violent profits from the date of the intimation that he was about to resume possession, or as damages caused by their wrongous retention of possession since that time. In defence the representatives pleaded that their opposition to the action of declarator and removing was made and continued in the bona fide belief that the lease could not be put an end to without their consent, and that as the questions raised were attended with difficulty, their retention was not wrongous, and that they were not liable either for violent profits or for damages. Held that the claim which the pursuer had against the defenders was not one for violent profits, but of breach of contract by the defenders, having retained possession of the colliery after the period at which they were bound to remove, and that they were therefore liable to the pursuer in reparation for such injury as had thereby been occasioned to him. Opinion (per Lord Justice-Clerk) that in the circumstances, in so far as the action was for violent profits, the defence of bona fide possession was sufficient to protect the defenders until their title was the subject of judicial decision. Opinion (per Lord Ormidale) that in the circumstances the bona fides of the defenders must be held to have ceased, and their liability to have commenced at the date of citation in the action of declarator and removing. Question (per Lord JusticeClerk) how far, in a question as to bona fide possession and fruits in bona fide received and consumed, the analogy of a proper agricultural lease will extend in all its effects to a lease of a subject which yields no periodical produce, which has no reproductive power, and under which the tenant appropriates, not the increment or fruits of the property, but the property itself. Observations on the principles upon which the defence of bona fide possession against a claim for violent profits must be decided. Houldsworth v. Bain and Others, p. 187. Landlord and Tenant--Lease--Singular Succession. A, who was a yearly tenant of a farm, and also factor upon the estate of B, had no written lease, and applied to B for permission to carry out a regular cropping rotation-which was granted by letter. Shortly afterwards B died, and his estate was held by trustees, who, in a letter addressed to A, fixed the date at which his lease should be held to terminate. The amount of rent paid by A had been regularly entered by him in a rental book which he kept as factor upon the estate, and these entries were docqueted by B as correct up to the date of his death. The trustees having afterwards advertised the estate for sale, stated in their advertisement the duration of A's lease and the rent paid by him. In an action of declarator at the instance of A against a purchaser who sought to have him removed-held that the letters, entries in rental book, and advertisement, taken together, constituted a lease in A's favour which was good against a singular successor. Wilson v. Mann, farm." In an action of reparation for damage by rabbits-held (1) that the claim of the tenant was not absolutely barred, nor the landlord entirely protected by the clause in the lease; but (2) that considering the terms of the lease the increase in the number of rabbits was not here proved to be so great as to warrant a claim of reparation. Cadzow v. Lockhart, p. 441. Landlord and Tenant. See Nuisance-Suspension. Lapse of Reasonable Time. See Insurance. Lay Days. See Ship. Lease-Constitution-Proof-Parole-Writ or Oath. A averred that by verbal agreement it was arranged that he was to get a lease of a house and garden for five years, and that, "in the meantime and until the lease for five years was formally completed, the said subjects were let to him, and he was to occupy and possess the same for a period of at least one year." He averred that he accordingly entered into possession, and proceeded to improve the garden and prepare the same for crop.-Held that the proof of the constitution of the alleged contract for five years must be limited to the writ or oath of the lessor, but quoad ultra proof prout de jure allowed. Gibson v. Adams and Another, p. 47. --Landlord and Tenant-Meliorations-Right of a Tenant's Executors to Compensation for Meliorations. The executors of a deceased tenant under an agricultural lease which has come to a premature termination have no right to compensation for meliorations by which the landlord is lucratus. Observations (per curiam) on the case of Morton v. Montgomerie, February 22, 1822, 1 S. 322. Observations (per Lord President) on the case of Pendreigh's Trustee v. Dewar, July 1871, 9 Macph. 1037. Hadden & Others v. Hepburn, p. 538. -Condition-Recission of Contract. Missives of lease of a shop were entered into-the tenant stipulating that during his lease an adjoining shop should not be let to any person in his own trade. The landlord subsequently took possession of this adjoining shop himself, and carried on a business there under which he sold a number of articles similar to those dealt in by the tenant.-Held that a material condition of the contract had been violated, and (dub. Lord Ormidale) that the tenant was entitled to rescind the lease. Stark v. Davie, p. 666. -See Jurisdiction-Landlord and TenantAssessment-Suspension-Heritable and Moveable. Leave to Reclaim. See Process. Legacy. See Trust. Manager. See Master and Servant-Principal and Agent. Mandate Adjourned Meeting Writ Erasure. Held (aff. judgment) that mandates bearing to be used at a meeting of the Parochial Board of a parish, to be held on 2d August or any subsequent day to which the said meeting might be adjourned, were validly used at a meeting held on a later day for the same purpose, although there had been no meeting on 2d August, and consequently no adjournment. Held, also, that an alteration by the printer of the date originally appointed in the mandate did not invalidate such mandate. Muir v. Thompson and Others, p. 739. -See Process. Manse. See Church. Marine Insurance-Policy-General Average-Con- Held Marriage-Contract-Trust-Renunciation of Liferent. By an antenuptial contract of marriage it was provided, in the event of the husband predeceasing his wife, that certain sums should go to her in liferent and to the children of the marriage upon her death, either in such proportions as the spouses might direct by a jointdeed, or, failing such deed, equally amongst them, and that if any of the children predeceased the term of payment leaving issue, such issue should have right to their parent's share. The husband predeceased his wife, leaving three children, and the interest of these sums continued for some time to be paid to the widow. Held, in a Special Case submitted by the parties interested, that (in conformity with the case of Pretty v. Newbigging, 2d March 1854, 16 D. 667) the trustees were not bound to keep up the trust until the arrival of the period fixed in the contract of marriage for the division of the fee, but that they might denude upon receiving a renunciation of the widow's liferent interest and a discharge from her and the children of the marriage. Special Case-Grant and Others, p. 176. -See Husband and Wife-Entail. Master and Servant-Reparation-Culpa-FellowWorkmen Manager. A coalmaster held not liable in damages for the death of a miner caused by the fault of some one or other of those appointed to superintend the mine, there being no proof that incompetent men had been appointed, or that the master had failed to supply them with necessary apparatus. Sneddon v. The Mossend Iron Company, p. 563. -—Culpa―Damage-Responsibility-Relevancy. Two gamekeepers were alleged to have fired at a man and his dog upon the high road, killing the dog and wounding the man. In an action for damages against the keepers and their employer, it was averred that the former were acting with the authority, or at least for the behoof, of the latter. Held that this averment was not sufficient to infer liability, and that there was no relevant ground for an issue against the employer. Observed (per Lord Deas) that where the act of a servant whereby damage is caused to any one is of a criminal nature, it is necessary to state something very specific indeed to infer liability against the master. Wardrope v. The Duke of Hamilton and Others, p. 568. -See Reparation. Material Concealment. See Ship. Minerals. See Property-Landlord and Tenant. Mortis causa Settlement. See Entail. -See Burgh. Murder. See Crime. Mutual Deed. Mutual Gable. See Succession. See Property. Mutual Settlement. See Succession. Notarial Subscription. See Writ. Notice to Debtor. See Diligence. Notice of Dismissal. See School. Nuisance-Pollution - Drainage-Property-Landlord and Tenant-Interdict. Owners of property erected a mining village on the banks of a stream. Into this stream went drains intended for the conveyance of ordinary surface drainage; other arrangements being made for the sewage pollution of the village. In a process of suspension and interdict at the instance of an inferior heritor complaining of pollution-held that the pollution being established it was not a good defence to aver (1) that the drains were only surface drains, and were misused by the fault of the miners against the orders of the proprietor; or (2) that the proprietor could not be interdicted for the action of the tenant. Observed (per Lord JusticeClerk) that there is a distinction between the case where tenants are on lease and where they are removeable at will. Opinion (per Lord Gifford) that a proprietor in erecting a village is bound absolutely to prevent pollution. Caledonian Railway Company v. William Baird & Company p. 527. Nullity. See Husband and Wife. Obligation of Feuar. See Feu-Contract-PropertyServitude. Obstruction. See Navigable River. Order of Committal. See Industrial School. Owner. See Summary Prosecution-Ship - Fran chise. Paraphernalia. Circumstances in which a wardrobe was held to be inter paraphernalia. Cameron v. M'Lean, p. 278. Parent and Child—Legitimacy-Proof-Presumption. An action of putting to silence was raised against one who averred that she was the legitimate daughter of the pursuer. The defender was admittedly the child of the pursuer's wife, and was born two months after their marriage, which took place nearly twentyfive years prior to the date of the action. It appeared, on the one hand, that the man whom the pursuer alleged to be the real father of the defender had connection with the mother prior to her marriage, and that the pursuer did not treat the defender as his daughter, but sent her away immediately after her birth, and although he all along maintained her, had no communication with her whatever. On the other hand, it did not appear whether the intercourse with the alleged father corresponded in time with the birth of the defender, and it remained doubtful whether the pursuer had not had illicit intercourse with his wife prior to marriage. It further appeared (1) that the mother's pregnancy took place during the pursuer's courtship; (2) that on his own admission the pursuer was aware of her condition when he married her; (3) that the pursuer did not openly disclaim the defender, but on the contrary assumed the burden of her maintenance and education; and (4) that he never said to any one that he was not the father, or put the paternity on any one else for four-andtwenty years. Held that although the presumption of law pater est quem nuptiæ demonstrant did not apply-conception not having taken place during marriage- there was શ strong presumption of fact that the pursuer was the defender's father, arising from the fact that the defender was born in wedlockthat therefore the obligation of unquestionable proof to the contrary lay on the pursuer, and that he had not discharged that obligation. Gardner v. Gardner, p. 463. Parish quoad sacra. See Church. Parochial Board. See Industrial School-Pauper. Parole. See Lease-Proof-Partnership. Part and Pertinent. See Servitude. Partnership-Companies Clauses Consolidation (Scotland) Act 1845-Trustee in Bankruptcy — Intimation of Assignation. A executed a transfer of a number of shares in a railway company in favour of B. More than a year afterwards A was sequestrated. After the sequestration had taken place, a memorial of the transfer was sent by B to the secretary of the company and entered in the register of transfers. In an action brought at the instance of the trustee on A's sequestrated estate, for the purpose of having the deed of transfer reduced and the shares entered in his own name-held (1) that the act of sequestration, although it might be equivalent to an intimated assignation to these shares in favour of the trustee, had not the effect of rendering him a partner in the company until he complied with the statutory provisions for completing a transfer; and (2) that as B had complied with these provisions and was entered in the register of shareholders, his right could not now be cut down by the trustee. Morrison v. Harrison and the Forth and Clyde Junction Railway Company, p. 273. -Declarator - Relevancy-Parole Proof. entered into a contract of copartnery with two others. It was averred that his father B advanced the capital and managed the concern, and that A took no part in the business. that in a question inter socios such averments were irrelevant to found an action of declarator of partnership against B. Opinions that parole proof to set aside a contract of copartnery is only competent where there is an averment of a new agreement followed by actings that can be distinctly connected therewith. The Clippens Shale Oil Company and Others v. James Scott and Thomas Inglis Scott, p. 429. -See Process. Party. See Process. Party Wall. See Property. Payments to Beneficiaries. See Trustees. Period of Vesting. See Succession. A Held Personal Liability of Statutory Trustees. See Pro cess. Petition. See Expenses-Process-Company-Crime Physical Incapacity. See Testament. Poinding the Ground-Ieritable Creditor-Proprietor-Right in Security. A debtor in security of a sum advanced granted a personal bond in favour of the creditor, in which it was provided that he (the creditor) should have all the rights and power of absolute proprietors" in and over certain lands also conveyed to him in security of the advance by the creditor. The disposition by which these lands were conveyed was ex facie absolute, and the deed was duly recorded, but a back-letter which was granted by the creditor was not recorded. Upon the debtor's failure to pay under the stipulations of the bond, the creditor, having first prepared and recorded a duplicate back-letter, raised an action of poinding of the ground in satisfaction of his claim. Held (1) that the title of the creditor being the said ex facie absolute disposition, was that of a proprietor not of a creditor, and (2) that the sum claimed was therefore not a debitum fundi, and was no foundation for an action of poinding of the ground. Observed (per Lord President) that the back-letter must be held as not recorded notwithstanding the duplicate, but that had it been recorded, it would not have been material to the case. The Scottish Heritable Security Co. (Limited) v. Allan, Campbell, & Co. and v. John Watson & Sons, p. 207. Police - Police and Improvement (Scotland) Act 1862, 25 and 26 Vict. cap. 101, sec. 132-Manufactory. Section 132 of the Police and Improvement (Scotland) Act 1862 does not impose upon the Commissioners under the Act the duty of removing the ashes of the fuel consumed in the furnaces of a large manufactory. Pullar & Sons v. Police Commissioners of Perth, p. 701. Police Commissioners. See Election-Jurisdiction. Poor-Settlement-Desertion-Statute 8 and 9 Vict. See Trust-Process. Poor Rates. See Franchise-Superior and Vassal. Possessory Judgment. See Road. Postponement. See Succession. Powers. See Judicial Factor. Power to Test. See Testament. Presbytery. See Church. Prescription-Trustee-Property-Sale. A sale of lands by a corporation in their character of trustees for certain mortifications to themselves in their separate character of a burgh or community, is not protected by either the position or negative prescription. The University of Aberdeen v. The Town Council of Aberdeen, p. 677. Presumption. See Parent and Child. Principal and Agent-Company-Manager, Powers of-Bill. The sub-agents of a company accepted two bills drawn upon them by the managers of the company in anticipation of the freight of one of the company's steamers. The bills passed through the managers' books, were discounted by them, and were retired at maturity by the sub-agents. The managers |