OUTER defender, as his guest, in a motor car belonging HOUSE. to and driven by the defender.

Paterson v.

W. G.

December 14, 1923.

FIRST DIVISION.

21st December 1923.

Another-Petitioners.

The pursuer avers that the accident happened through the fault of the defender in driving in a careless and reckless manner at an excessive speed round a bend on the road.

In my opinion the pursuer's averments are relevant.

The implied acceptance by the pursuer's husband of risks attending the motor drive does not include risks consequent on the personal fault of the defender; and the defender, notwithstanding that he was carrying the pursuer's husband gratuitously, may be responsible for the accident and liable in damages if, as the pursuer avers, the accident was caused by the defender's fault.

On the pursuer's averments personal fault, if established, would infer personal liability in accordance with the general rule expressed in the maxim culpa tenet suos auctores.

This, I think, is consistent with the principles laid down in Woodhead v. Gartness Mineral Co. (1877, 4 R. 469) and in Wingate v. Monkland Iron Co. Ltd. (1884, 12 R. 91). I refer in particular to the opinions of Lord President Inglis (4 R. at p. 478) and Lord Gifford (4 R. at pp. 505-6), Lord Young (12 R. at pp. 100-1) and Lord Craighall (12 R. at p. 102).

On the pursuer's averments this case falls to be distinguished from the case of Moffat v. Bateman ((1869) L.R., 3 P.C. 115), on which the defender's counsel founded.

Company-Nobile officium-Petition to declare void the dissolution of a limited company, dissolved eight years before the date of the petition, and to authorise the person who was liquidator of the dissolved company to grant a disposition ad perpetuam remanentiam of two pieces of ground which the dissolved company held in feu, in favour of the superior, without adhibiting the seal of the company-Companies (Consolidation) Act, 1908 (8 Edw. VII. cap. 69), section 223, inapplicable-Petition refused.

Petition.

Arthur Herbert Kerr, residing at Kensington Palace, London, curator bonis to the Right Honourable Ronald Archibald Bosvile Macdonald, Baron Macdonald, and George Allan Robertson, chartered accountant, Edinburgh, presented a petition to the First Division in which they craved the Court:

To make an order upon such terms as your Lordships shall think fit, declaring the dissolution of the

company of Skye Marble Ltd. incorporated in Scotland under the Companies Acts, 1862 to 1900, on the 16th day of August 1907, to have been void for the purpose of the hereinafter authority being exercised, and to authorise the petitioner George Allan Robertson, as liquidator of said company, to grant a disposition ad perpetuam remanentiam of the two pieces of ground disponed in the second and third places respectively, by the . . . . feu-charter, dated 5th and recorded in the Division of the General Register of Sasines applicable to the county of Inverness 29th May 1911, in favour of . . . . the Right Honourable Ronald Archibald Bosvile Macdonald, Baron Macdonald, and to authorise the said George Allan Robertson to execute the said disposition ad perpetuam remanentiam without adhibit

The petition set forth:

case.

That Skye Marble Ltd. (hereinafter called the company) was on 16th August 1907 incorporated as a company limited by shares under the Companies Acts, 1862 to 1900. The main object of the company

was to work marble quarries in the Strath District of the Island of Skye.

The company was proprietor of a feu consisting of three pieces of ground in the neighbourhood of Broadford, Skye, under and in virtue of a feu

charter in its favour granted by the Honourable Godfrey Evan Hugh Macdonald (now deceased), then curator bonis to the said Lord Macdonald, dated 5th and recorded in the Division of the General Register of Sasines applicable to the county of Inverness 29th May 1911. The said three pieces of ground are particularly described in said feu-charter, and the feu-duties exigible in respect thereof are £2, 3s. 11d., £25, and £35 respectively, with a duplicand every twenty-five years, commencing at

Martinmas 1934.

At the end of 1912 the company went into voluntary liquidation, and Mr Eustace Radcliffe Cooper, the then secretary of the company, was appointed liquidator, which appointment was, of this date (17th December 1912), superseded by the Court, and Mr George Allan Robertson, the present petitioner, was appointed liquidator, and a supervision order was pronounced in the liquidation and a remit made to Lord Cullen, Ordinary, to proceed in the subsequent proceedings in the winding-up.

In the course of the liquidation, the liquidator sold the piece of ground first described in the said feucharter, but the remaining two pieces of ground were never sold, and the company still remains on record as the proprietor thereof, the liquidator not having made up a title in his own name or otherwise dealt with the same. The feu-duties exigible in respect of said two pieces of ground have not been paid since Whitsunday 1913.

Of this date (12th March 1915), the Lord Ordinary pronounced an interlocutor approving of the liquidator's final account of intromissions and his whole actings and management as liquidator, dissolving the company, and authorising the liquidator after the lapse of three months from said date to destroy the books and documents of the company. The said books and documents, and also the company's seal, have since been destroyed.

It is necessary that the unsold portions of the said feu should be reconveyed to the superior, the said Lord Macdonald, in order that the curator bonis may be in a position to look after his ward's interests in respect thereof. The ground is at present lying derelict. As there is no legal persona in existence against whom an action of declarator of irritancy ob non solutum canonem could be brought, this means of rectification cannot be employed.

Section 223 of the Companies (Consolidation) Act, 1908, provides as follows:

"(1) Where a company has been dissolved, the Court may at any time within two years of the date of the dissolution, on an application being made for the purpose by the liquidator of the company or by any other person who appears to the Court to be interested, make an order, upon such terms as the Court thinks fit, declaring the dissolution to have been void, and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved."

More than two years, however, have elapsed since the dissolution of the company, and the situation which has arisen as above set forth is a casus improvisus. This petition is accordingly presented to the Court in virtue of its nobile officium.

The petition was intimated on the walls Anotherand in the minute book in common form and Petrs. was served upon the Right Honourable December 21, for Scotland, as representing the Crown as William Watson, K.C., His Majesty's Advocate ultimus hæres. No answers were lodged.

On 11th July 1923 the Court remitted to Irvine R. Stirling, S.S.C., to enquire into the facts and circumstances set forth in the petition, and to report.

The report set forth, inter alia:

On 16th August 1907 Skye Marble Ltd. was incorporated as a company limited by shares under the Companies Acts, 1862 to 1900.

The main object of the company was to work marble quarries in the Strath District of the Island of Skye.

The company was proprietor of a feu of three pieces of ground in the neighbourhood of Broadford, Skye, in virtue of a feu-charter in its favour granted by the Honourable Godfrey Evan Hugh Macdonald, now deceased, then curator bonis to the said Baron Macdonald, dated 5th and recorded in the Division of the General Register of Sasines applicable to the county of Inverness 29th May 1911.

The said three pieces of ground are particularly described in the feu-charter, and the feu-duties exigible in respect thereof are £2, 3s. 11d., £25, and £35, with a duplicand every twenty-five years, commencing at Martinmas 1934.

In 1912 the company went into voluntary liquidation, and Mr Eustace Radcliffe Cooper, who was then secretary of the company, was appointed liquidator. His appointment was superseded by the Court and the said George Allan Robertson was appointed liquidator, and the Court remitted to Lord Cullen, Ordinary, to proceed in the subsequent proceedings in the winding up. A dividend of ls. 7d. was paid to the ordinary creditors.

In the course of the liquidation the liquidator sold the piece of ground first described in the said feucharter. The remaining two pieces of ground have not been sold and the company still stands on the record as proprietor. From enquiries made, the reporter has ascertained that on said pieces of ground there were erected two separate sets of buildings known as the low factory and the upper factory, which were used in connection with the company's business. The walls and part of the roof of both factories are still in existence but the buildings are ruinous, there being no inside partitions, and the roofs are in a dilapidated condition. The woodwork of the buildings is decaying. The buildings in their present condition are derelict.

The feu-duties exigible in respect of the two pieces of ground have not been paid since Whitsunday 1913.

1923.

1ST DIV. The said books and documents have been destroyed and the common seal of the company is not now in Lord Macdonald's Curator

December 21, 1923.

existence.

In these circumstances it is desired that the unsold Bonis and portions of the said feu should be reconveyed to the Another superior in order that the petitioner, Arthur Herbert Petrs. Kerr, as curator bonis foresaid, may be in a position to look after his ward's interests in respect thereof, but the company having been dissolved, the liquidator has no power or authority to grant a conveyance to give effect to this, but is prepared to do so upon being authorised by your Lordships to that effect, and the present application is accordingly presented by the said Arthur Herbert Kerr as curator bonis foresaid, and the said George Allan Robertson as liquidator The first-named petitioner has been advised that as there is no legal persona in existence against whom an action of declarator of irritancy ob non solutum canonem could be brought, this means of rectification cannot be employed.

foresaid.

Section 223 (1) of the Companies (Consolidation) Act, 1908, is as follows:

As more than two years have elapsed since the date of the dissolution of the company advantage of the provisions of the above section cannot be taken, and the application is accordingly made in virtue of your Lordships' nobile officium.

The proposal which your Lordships are asked to sanction is made to the end that the above difficulty may be overcome. The petitioners have called as respondent the Right Honourable William Watson, K.Č., His Majesty's Advocate for Scotland, as representing the Crown as ultimus hæres, and of this date (28th June 1923) your Lordships appointed the petition to be intimated and served him. upon Evidence has been produced that that interlocutor has been implemented, that the inducia have expired and that no answers have been lodged.

There remains only the question of the creditors. These are represented by the second-named petitioner, the former liquidator of the company, and before closing the liquidation he was satisfied that the said pieces of ground were of no value whatever. From enquiries the reporter has made he is satisfied that this was the fact, and that nothing since then has occurred to alter the position. The said pieces of ground are still lying derelict.

The facts and circumstances set forth in the petition are sufficiently and carefully stated. It appears to the reporter that the difficulty is a real one and the application reasonable, and in the whole circumstances he is respectfully of opinion that if your Lordships consider that in the circumstances the nobile officium of the Court may be exercised, no person will suffer any prejudice.

On 7th December 1923 the petition was heard in the Summar Roll, when counsel moved the Court to grant the prayer of the petition and cited Campbell (1890, 18 R. 149) and Collins Bros. & Co. (1916 S.C. 620).

Avizandum, 7th December 1923.

The Lord President (Clyde).-This is an appeal to our nobile officium. The limited company was dissolved nearly eight years ago, and we are asked to declare the dissolution void, and to authorise the person who was liquidator of the dissolved company (and who happens to survive) to grant a disposition ad perpetuam remanentiam of two pieces of ground which the dissolved company held in feu, in favour of the superior, without adhibiting the seal of the company. By section 223 of the Companies (Consolidation) Act, 1908, the Court is empowered to declare the dissolution of a company void, on an application made by the former liquidator of the company, or by any other person interested, on such terms as the Court thinks fit; and "thereupon such proceedings may be taken as might have been taken if the company had not been dissolved." It is because the statutory law regulating the constitution, affairs, and dissolution of limited companies restricts the power of the Court to revive the liquidation of a dissolved company, by imposing a two-year limit, that the present appeal to the nobile officium is made. The case of Collins Bros. & Co. (1916 S.C. 620) was cited as a precedent. It is enough to say, with regard to that case, that it concerned heritable property, belonging to a dissolved Scottish company, but situated in New South Wales, and taken over by a purchaser there subject to a mortgage by the dissolved company, which mortgage the purchaser had contracted to take over. The peculiar difficulties and complications thence arising, which were held to be special circumstances warranting the Court in treating the application as one dealing with a casus improvisus, find no counterpart in the present case. The vassal in the feus to which the present application relates was corporation which has ceased to exist, and has no heir unless it be the Crown. The feus, in short, constitute what are known to the law of Scotland as bona vacantia; and there seems to be no reason whatever for interfering, by an exercise of the nobile officium, with the law of Scotland which applies to caduciary estate. The remarks made by Lord President Inglis in Campbell (18 R. 149 at p. 151) apply to the present case : It is not a case in which there can be any appeal to the nobile officium, because it is a matter depending entirely on the construction of the words of the statute. were to grant this power, it might turn out that what we had done was after all of no avail." His Lordship goes on to point out that, so far as title is concerned, objections (which in the present case might be stated by a purchaser from Lord Macdonald) would be declared the dissolution void and authorised the

a

If we

Rae v.

Scottish

68

1ST DIV. the pursuer, repeated said accusation that the pursuer was neglecting his child. The said accusation was false and calumnious and was made maliciously. Royal The defenders' said servant, who was acting at Society for said interview within the scope of his authority Preven- and employment and in the defenders' interest, tion of would hardly listen to pursuer's statements, and Cruelty to insisted in a demand that the pursuer should pay Children. aliment. He took the pursuer into the office of his chief and asked how long the pursuer was to be given. The said chief officer stated that the pursuer had been given sufficient time, and the said Allan Docherty then told the pursuer that he would make him pay for both wife and child. The said statement that the pursuer was neglecting his child and the said threat were made, it is believed and averred, in support of the pursuer's wife, and in furthering her policy of remaining in desertion of the pursuer.

November 30, 1923.

COND. 6. The pursuer thereafter went to see his wife and made one more attempt to obtain possession of the child, but his wife assaulted him and refused to give up the child.

COND. 7. The defenders, or those for whom they are responsible, knew that the pursuer's child was well nourished and cared for, and further, that the pursuer had done all that he could to induce his wife to return to him and to obtain possession of the child and maintain it. Notwithstanding this knowledge the defenders, or those for whose actings they are responsible, on or about 17th June 1922 sent to the Procurator-Fiscal for the Lower Ward of the county of Lanark at Glasgow a written information to the effect that the pursuer did between 25th February 1922 and 17th June 1922, at 8 Bellfield Street, Glasgow, wilfully ill-treat and neglect him (viz. the said child) “in a manner likely to cause him unnecessary suffering or injury to his health by failing to provide him with adequate food, clothing, bedding, and lodging, contrary to the Children Act, 1908, section 12." The said information was given to the Procurator-Fiscal as aforesaid with a view to pursuer being apprehended and prosecuted. Further, on or about 22nd June 1922, two other servants of the defenders, whose names are unknown to the pursuer, called for the pursuer at his place of employment in Musselburgh, and repeated to the pursuer said false and calumnious accusation that the pursuer was neglecting his child. The said accusation was made maliciously, and the defenders' said servants in making it were acting within the scope of their employment and in the defenders' interest. The pursuer once more explained the whole situation to them, and they then threatened the pursuer with arrest. In consequence of said written information to the Procurator-Fiscal the pursuer was on 26th June 1922 arrested in Musselburgh by the local police on a warrant by the Sheriff-Court of Lanarkshire at Glasgow, dated 20th June 1922, following on a complaint at the instance of the said ProcuratorFiscal, which bore “that being the father and having the custody or care of your child George Rae, aged eight months, you did between 25th February 1922 and 17th June 1922, at 8 Bellfield Street, Glasgow, wilfully ill-treat and neglect him in a manner likely to cause him unnecessary suffering or injury to his health by failing to provide him with adequate food, clothing, bedding, and lodging,

contrary to the Children Act, 1908, section 12." Denied that the defenders acted in good faith and with reasonable grounds for believing the facts required police investigation.

COND. 8. The pursuer was detained in the police cells at Musselburgh that night, and on the following day was taken to Glasgow by a police constable. On 28th June he was brought before the SheriffSubstitute. The pursuer pleaded not guilty to the charge, and the Court adjourned the diet to 8th July, and ordered pursuer to be detained in prison until that date. During these twelve days in prison he was not allowed to see either relatives or friends. COND. 9. On said 8th July the pursuer was brought before Sheriff-Substitute Lyell. The only witness examined for the prosecution was the pursuer's wife, whose evidence was to the effect that she had been staying in Glasgow with the child since February 1922, and that she had received nothing from pursuer in name of aliment, either for herself or the child. In reply to Sheriff Lyell the said witness stated that it was she who had left pursuer and not pursuer who had left her. The pursuer was found not guilty.

COND. 10. The conduct of the defenders, or those for whom they are responsible, in giving to the Procurator-Fiscal the information which resulted in the pursuer's arrest and imprisonment was wrongful and illegal. The said information was false and calumnious and was further given maliciously and without probable cause. In giving it defenders' said servants were acting within the scope of their authority and in the defenders' interest. The defenders, or their representatives for whom they are responsible, knew, not only that the said. child was well nourished and cared for and that the pursuer was innocent of any ill-treatment or neglect of his child, but that he had been wrongfully deprived of its possession and custody, and that he had done and was doing all in his power to obtain possession of it and exercise his paternal rights over it and on its behalf. They further knew, or ought to have known, that the pretended necessity for aliment for the said child was a pretext on the part of the pursuer's wife for obtaining money for herself to enable her to continue in resistance to the pursuer's demand for her return to him and for the delivery of the child into his care and keeping.

1. The defenders having through their said servants acting in the course of their employ-ment and in the defenders' interest, slandered the pursuer as condescended on, the pursuer is entitled to reparation therefor.

"2. The pursuer having suffered loss, injury, and damage by the wrongful and illegal conduct of the defenders, or those for whom they are responsible, in giving maliciously and without probable cause false information to the Procurator-Fiscal as condescended on, is entitled to reparation.'

The defenders pleaded, inter alia:

"1. The pursuer's averments being irrelevant,. the action should be dismissed."

The pursuer proposed three issues, the terms.