INDEX OF MATTERS

IN

VOLUME III.

Points decided in the House of Lords are printed in Italics.
See separate Indices for Cases decided in the Registration Appeal Court,
p. 1239, and in the Court of Justiciary, p. 1240.

ADVOCATE.

Held that a counsel in the conduct of a cause is entitled to use his own dis-
cretion even against the instructions of his client, and that an allegation
by a client that he has sustained loss in consequence is not relevant to
support a claim of damages against the counsel. Batchelor v. Pattison

and Mackersy, June 30, 1876, p. 914.

AGENT AND CLIENT. Ad valorem Fees.

1. Held that any person (not prohibited by the Stamp Act of 1870) may
charge the same ad valorem and other fees for preparing conveyances as
members of any of the incorporated societies of law-agents are entitled to
charge. Aitken v. Kirk, March 15, 1876, p. 595.

Conduct of Cause.

2. Although, generally, an agent is bound to follow the instructions of his
client, when the conduct of a cause is in the hands of counsel the agent is
bound to act according to the directions of counsel, and will not be answer-
able to his client for what he does bona fide in obedience to such directions.
Batchelor v. Pattison and Mackersy, June 30, 1876, p. 914.
See Fraud-Superior and Vassal, 3.

AGENT AND PRINCIPAL. Joint Stock Company-Powers of Manager.

1. The principal agent or manager of a joint stock shipping company, to whom
was committed the whole management of the company's trading business
at home and abroad, and who guaranteed the freight earned by the com-
pany's ships, but whose appointment did not confer an express power of
drawing or accepting bills on behalf of the company, appointed a sub-
agent at a port to attend to the company's business there, and, among
other duties, to collect the freights payable at the port. It was the practice
of the manager to draw bills upon the sub-agent in anticipation of freight
to be earned by the company's ships. The bills, after being accepted by
the sub-agent, were discounted by the manager, and retired at maturity by
the sub-agent out of freight collected in the interval. The amount was
debited to the company in accounts rendered by the sub-agent to the
manager. The bills were not entered in the books kept for the company
by the manager in such a way as to shew the true nature of the transaction,
but this could have been discovered from the accounts rendered by the
sub-agent to the manager, which were placed before the auditor of the

company.

The manager ceased to hold that office while two of the bills were
current, and shortly after became bankrupt. The company having refused

to allow the sub-agent credit for the amount of the bills, he sued the com-

pany for the amount. Held that the manager had not authority from the
company to receive and discharge payments in anticipation of freight; that
the pursuer had failed to prove by the books or otherwise that the direc-
tors were aware or ought to have been aware of the course of dealing; or
that in fact the proceeds of the bills had been received by the company;
and that the pursuer had therefore failed to establish liability against the
company. Ross, Skolfield, and Co. v. State Line Steamship Co., Nov. 17,
1875, p. 134.

Shipbroker-Commission.

2. Held that a shipbroker was not entitled to commission upon the sale of a
ship, in respect that, though the seller had been introduced to the purchaser
by the broker, the sale which ultimately took place was not in consequence
of the broker's introduction. White v. Munro, &c., July 11, 1876, p.
1011.

See Right in Security, 1-Sale, 2-Ship, 2.

APPEAL TO THE HOUSE OF LORDS.

There is no appeal to the House of Lords from judgments of the Court of
Justiciary. Mackintosh v. The Lord Advocate, March 23, 1876, H. L., p.

34.

ARRESTMENT. Malice and want of probable cause.

1. Opinions, that where arrestments have been used against the private funds
of an executor upon the dependence of an action against him as executor
for payment of an executry debt, the executor is entitled to damages
without proving malice or want of probable cause, in respect that the
arrestments are entirely without warrant. Wilson v. Mackie, Oct. 22,
1875, p. 18.

Arrestment on dependence-Expenses.

2. Arrestment is not competent on the dependence of an action of reduction in
which the only pecuniary conclusion is for the expenses of process.
Stafford v. M'Laurin, Nov. 20, 1875, p. 148.

Future Debt-Inhibition-Husband and Wife.

3. Where a wife had used inhibition and arrestment on the dependence of an
action of separation and aliment, and had afterwards used arrestments in
execution of a decree of separation and aliment, held that after payment by
the husband of all debts secured by the diligence, except sums to become
due for future aliment, he was entitled to have the arrestments and inhibi-
tion recalled. Symington v. Symington, Dec. 3, 1875, p. 205.
Personal Diligence Act, 1838, 1 and 2 Vict. c. 114, sec. 16.

4. Where a pursuer seeks to use arrestments in security of a future debt upon
the dependence of an action he should proceed by bill setting forth that
the debtor is vergens ad inopiam, or other ground for the diligence, so as
to enable the defender to answer the allegation. Symington v. Symington,
Dec. 3, 1875, p. 205.

Arrestment in Security.

5. It is not competent to use diligence in security of a future debt unless upon
the ground that the debtor is vergens ad inopiam, or on similar grounds.
Symington v. Symington, Dec. 3, 1875, p. 205.

ASSIGNATION. See Insurance, 3-Partnership, 3-Right in Security, 2.

BALLOT ACT, 1872. Municipal Election-Voter's Mark.

1. Held that, in an election under the Ballot Act, 1872, a single stroke
marked by a voter opposite the name of a candicate on a ballot paper was
not equivalent to a cross as required by the Act, and was a mark by which
the voter might be identified. Robertson v. Adamson, July 5, 1876, p.

978.

2. Held (1), in accordance with the decision in Haswell v. Stewart, May 23,
1874, ante, vol. i. 925, that crosses on a ballot paper to the right-hand side

BALLOT ACT, 1872-Continued.

of the candidates' names, but not within the spaces marked off for them,
were in compliance with the provisions of the Ballot Act; (2), in accord-
ance with the same decision, that crosses to the left-hand side of the candi-
dates' names were not in compliance with the provisions of the Ballot Act;
(3), that certain marks in the proper spaces, which, though not crosses, in-
volved the use of more than a single stroke, were sufficiently in compliance
with the Ballot Act, and were admissible. Robertson v. Adamson, July 5,
1876, p. 978.

Election of Police Commissioners-Treating.

3. Treating of voters by candidates at an election of police commissioners is not
a relevant ground for setting aside the election. M'Donald v. Robertson,
May 17, 1876, p. 645.

In an action by the Clydesdale Bank against the Royal Bank for payment of
£4800, the pursuers made the following averments:-A forged cheque for
£4800 drawn in the name of a customer of the Clydesdale Bank, payable
to D P or bearer, and crossed, bearing also a forged indorsation in name of
DP, was cashed by a clerk of D P at the Royal Bank, of which D P was
a customer. The proceeds were employed by the clerk in paying a balance
due by DP on the Stock Exchange. The Royal Bank having, on the
same day, presented the cheque at the Clearing House had the amount
credited to their account with the Clydesdale Bank. Ten days afterwards
the Clydesdale Bank discovered that the signatures of the drawer and in-
dorser to the cheque were forged, and intimated that they would hold the
Royal Bank responsible. Held that, according to the pursuer's averments,
the Royal Bank had only acted as the agent of D P, and was not liable.
Clydesdale Bank v. Royal Bank, March 11, 1876, p. 586.

BANKRUPTCY. Sequestration-Awarding and Recall.

1. Procedure followed where petitions for sequestration of the estates of the
same debtor had been presented in the Bill-Chamber and in a Sheriff
Court. Kellock v. Anderson, &c., Dec. 14, 1875, p. 239.
Trustee-Reparation.

2. An undischarged bankrupt recovered in an action a sum of damages for
slander uttered subsequent to his sequestration. Held that under the 103d
section of the Bankruptcy Act the sum vested in the trustee in the sequestra-
tion. Jackson v. M'Kechnie, Nov. 13, 1875, p. 130.

Claim-Foreign.

3. The estates of a firm, which had offices and carried on business both in
England and Scotland, were sequestrated in Scotland. An English com-
pany claimed to be ranked in the sequestration for £65,000, as the price
paid to the bankrupts under a contract of sale which they alleged to be
fraudulent, and at the same time commenced proceedings against the trustee
and certain other persons in the Court of Chancery in England with a
view to set aside the contract and to obtain a judgment for the £65,000.
The trustee rejected the claim as unfounded, and the claimants appealed,
and contended that the sequestration proceedings should be sisted pending
the issue of the Chancery suit, or otherwise that a dividend or dividends
should be set aside to meet the amount of the claim in case it should be sus-
tained. Held (aff. judgment of the First Division) that there were no
grounds for interfering with the course of the sequestration, and that a proof
of the averments on which the claim was based had been properly allowed.
Phosphate Sewage Company v. Molleson, June 20, 1876, H. L., p. 77.
Cautioner-Bill of Exchange-Ranking.

4. A guaranteed payment of debts due by B to C. C, by discounting B's
bills, obtained full payment of B's debt; but in consequence of B and C
afterwards becoming bankrupt, the bank with whom the bills had been
discounted ranked on C's estate for the full amount of the bills and ob-
tained payment of a dividend. Held that as C's estate had not lost any

BANKRUPTCY-Continued.

part of B's debt except the dividend repaid to the bank, his trustee could
not claim more under the guarantee, and that A having become bankrupt,
C's trustee could be ranked on A's estate for that amount only. Anderson
v. Mackinnon, March 17, 1876, p. 608.

Double Ranking-Bill of Exchange.

5. A accepted bills for accommodation of B, who discounted them at a bank.
A and B having become bankrupt the bank ranked on both estates for the
full amount of the bills. A's trustee claimed to retain a debt due by him
to B's estate as a security for the dividend on the bills paid by him on B's
account to the bank on the ground that he was entitled to be reimbursed
for his loss by B. Held that the bank having been already ranked on B's
estate for the full amount of the bills, A's trustee could not also be ranked
for the same debt, and therefore was not entitled to retain the sums due to
B's estate either in security or in satisfaction. Anderson v. Mackinnon,
March 17, 1876, p. 608.

Double Ranking-Bill of Exchange-Cautioner.

6. A cautioner was called on to pay a debt on failure of the principal debtor.
In an accounting between the estates of the principal debtor and of the
creditor who had both become bankrupt the cautioner maintained that the
debtor's estate was entitled to credit for sums lost through accommodation
bills discounted for behoof of the creditor. Held that as the discounting
banks had already been ranked for the bills on the creditor's estate there
could not be a second ranking. Anderson v. Mackinnon, March 17, 1876,
p. 608.

Security-Bankruptcy Act, 1856.

7. The holder of a bill accepted by the bankrupt along with six other co-
acceptors, and of a letter of guarantee of the debt granted by another person,
received payment from the bankrupt after his sequestration on delivery of
these documents. In an action for repayment by the trustee some months
afterwards, held that an offer by the trustee to return the documents did
not necessarily replace the defender in the situation in which he formerly
stood so as to entitle the trustee to decree, but that inquiry must be made
into the solvency of the co-acceptors and the guarantor at the date of the
payment, and at the date of the offer, in order to discover whether the
documents were of the same value at the latter date as at the former.
Pearson v. Ferguson, Davidson, and Co., June 9, 1876, p. 800.
See Right in Security, 1-Sale, 3.

BANKRUPTCY, FRAUDULENT. See Justiciary Index, Indictment, p. 1241.

BILL.

Onerosity.

In an action by the drawer of a bill against the acceptor, the plea of non-
onerosity is not per se a good defence. Law v. Humphrey, July 20, 1876,
p. 1192.

See Bankruptcy, 4, 5, 6, 7.

BONA FIDES. See Executor.

BONA FIDE CONSUMPTION. See Lease, 8.

BURGH. Burgh Election-Statute-Casus Improvisus.

1. In a question as to the compulsory retirement in 1875 of a town-councillor
who had held office for two years only in a burgh where the number of
councillors was eighteen, held (1) that the retirement annually of six coun-
cillors was imperative, although the number of those bound to retire in
respect of their being longest in office was less than six, and that the
deficiency fell to be made up from the class next longest in office; (2) that
the Municipal Elections Act of 1870, in providing for town-councils fixing
the order in which councillors should retire only in cases where councillors
had been elected on the same day, without being voted for, or "by an
equality of votes," had by implication recognised the rule of retirement

BURGH-Continued.

founded on disparity of votes prescribed by the Royal Burghs Reform Act
(3 and 4 Will. IV. c. 76), for the elections of 1834 and 1835 as applicable
to subsequent elections; (3) that a vacancy caused by the death or re-
signation of a councillor who was not one bound to retire at the next annual
election could not be reckoned among the vacancies required by the
statute. Thomson, &c. v. Magistrates of Rutherglen, &c., Feb. 17, 1876,
p. 451.

Sheriff-Act 20 and 21 Vict. c. 70, sec. 1-Competency of Appeal.

2. Held that a deliverrnce of a Sheriff upon a petition for the extension of the
boundaries of a burgh under the statute 20 and 21 Vict. c. 70, finding that
neither the boundaries described in the petition nor any others which
might be within its scope satisfied the requirements of the statute, and
therefore refusing the petition, was not subject to review. Dubs, &c.
v. Police Commissioners of Crosshill, June 1, 1876, p. 758.
See Ballot Act-Police.

CARRIER. Notice-Judicial Inspection.

Where a consignee of goods, which have been damaged in transit, breaks
bulk without notice to the carrier, or judicial inspection, he does not thereby
bar his claim for damages, although the want of such precaution to pre-
serve evidence may be an element in the proof. Johnston and Sons v.
Dove, Dec. 2, 1875, p. 202.

See Proof, 2-Railway, 2, 4-Ship, 4.

CHURCH. Designation of Addition to Churchyard-Presbytery-Jurisdiction-
Ecclesiastical Buildings Act, 1868, 31 and 32 Vict. c. 96, secs. 3, 14, and
20-Compulsory Sale-Notice.

1. The designation of an addition to a churchyard by the Presbytery, and the
regulation of procedure thereanent, are not subject to the review of the
Court of Session, who will only interfere if there be shewn to have been
some violation of the ordinary rules of procedure common to all Courts
whereby injustice has resulted.

Circumstances in which held, in accordance with the above, that an
heritor whose land had been compulsorily taken as an addition to a
churchyard, and who had not taken an appeal to the Sheriff from the Pres-
bytery's deliverance within the days allowed by the Act 31 and 32 Vict. c.
96, was not entitled to have the proceedings set aside on the ground of
want of notice. Walker, &c. v. Presbytery of Arbroath, March 1, 1876,
p. 498.

Decree of Removing by Church Court.

2. Although a Presbytery has an exceptional power to enforce a decree of
removing, it is usual and competent for them in designating a piece of
ground for an addition to a churchyard to ordain the tenant to remove.
Walker, &c. v. Presbytery of Arbroath, March 1, 1876, p. 498.
Manse-Presbytery-Expenses-Ecclesiastical Buildings Act, 1868, secs. 3

and 4.

3. A minister petitioned the Presbytery to visit his manse with a view to re-
pairs. The Presbytery employed an architect, and pronounced findings in
accordance with his report. The heritors appealed to the Sheriff under
sec. 3 of the Ecclesiastical Buildings Act, 1868, and the case was ultimately
disposed of on further appeal to the Lord Ordinary on Teinds. The Pres-
bytery did not appear in the appeal, but decerned against the heritors for
the amount of their architect's account, and, not receiving payment, raised
an action for payment of the account, as duly incurred by them. Held
that they were entitled to decree.

Observed―That the Presbytery ought not to have pronounced decree for
their expenses after the case had been appealed to the Sheriff. Presbytery
of Deer v. Heritors of Pitsligo, July 5, 1876, p. 975.