Expenses-Construction of testamentary provisions— Action of declarator-Questions arising out of ambiguity of testamentary writings-Unsuccessful pursuer claiming expenses out of estate-Testator during his lifetime lending £5500 to his son-in-law the pursuer Testator providing in his will that the share of residue falling to pursuer's children through the predecease of pursuer's wife was to be calculated under deduction of the sum of £5500 advanced to the pursuer-Pursuer bringing action of declarator against his children and the trustees that the provision discharged a balance of £3000 still due by him to the estate in repayment of the loan-Defenders assoilzied -Expenses allowed to pursuer as between party and party and to defenders as between agent and client out of the share of residue. Paton v. Brechin's Trustees and Others-O 513 Expenses-Power to award expenses-Judge exercising judicial functions under a statutory jurisdictionNational Insurance Act, 1911, section 66 (1), as amended by National Health Insurance Act, 1920, section 10-Held that the functions of the judge appointed to determine questions thereunder were judicial and that the judge had a discretionary power of awarding expenses. The Society of Accountants in Edinburgh and Others v. The Scottish Board of Health-O 199 Expenses-Power to award expenses-Judge exercising judicial functions under a statutory jurisdictionUnemployment Insurance Act, 1920 (10 & 11 Geo. V. cap. 30), section 10-Held that the functions of the judge appointed to determine questions under section 10 of the said Act were judicial and that the judge had a discretionary power of awarding expenses. The Society of Accountants in Edinburgh and 194 Others v. The Lord Advocate (as representing the Minister of Labour)—O Expenses-Successful and unsuccessful defenders-Liability of pursuer for expenses of successful defender— Collision between two motor vehicles on a street, as a result of which one of them was forced off the street on to the pavement and struck a young woman standing on the pavement who was thereby seriously injured-Action brought by her, in the first instance, against the motor car which inflicted the injuriesStatement in defences to the effect that the other motor car was responsible for the accident-Pursuer thereon making the owner of the second motor car a party to the action and case going to trial against both defenders Verdict of jury against the last-called defender and exonerating first-called defender Application by successful defender for expenses against the pursuer-Held that the pursuer was liable to pay the expenses of the successful defender, and decree therefor with right of relief against the unsuccessful defender granted. Expenses Successful defender-Liability of unsuccessful defender and pursuers inter se-Principal pursuer injured through placing her foot in hole in pavement of public street-True cause of accident the removal by children of the grating covering said holeGrating proved to have been in safe conditionPursuers, inter alia, wrongly averring that cause of accident was negligence of public authority in failing to repair and maintain said grating in a safe condition-Public authority correctly averring that said duty belonged to frontagers-Frontagers' representative thereafter called as defender-Verdict of jury 511 against public authority and in favour of frontagersCircumstances in which it was held that the pursuers were liable in expenses to the successful defender. Chalmers v. Corporation of Glasgow-O Expenses-Taxation-Agent and client-Objections to Auditor's report-Action for infringement of patents -Regulations 1 and 3 attached to the Table of FeesCharges, including fees to counsel, for a visit by counsel to pursuers' works for the purpose of receiving instruction in the intricacies of the manufacture of a patented article disallowed — Charges in connection with consultation in London by Scottish counsel with English counsel who were engaged for pursuers in a similar case on the same subject-matter in England allowed. British Thomson-Houston Company Limited v. Charlesworth Peebles & Company—O . British Thomson-Houston Company Limited v. King & Company-O British Thomson-Houston Company Limited v. Naamlooze Vennootschap Pope's Metaaldraadlampenfabrik and Others-0 61 61 61 Expenses Taxation client Agent and Public Authorities Protection Act, 1898 (56 & 57 Vict. cap. 61) section 1 (b) —Action of declarator (1) that pursuers had right to a certain water supply; (2) that defenders, a public authority, had taken water in infringement of the said right, and of interdict against the defenders from continuing the said infringement-Defenders assoilzied-Held that the defenders were not entitled to recover their expenses taxed as between agent and client. William Grant & Sons Limited v. Dufftown Corporation Expenses-Taxation - Witnesses 657 Successful defender having brought six witnesses from America to attend a proof in the Court of Session at a cost of £2393, 1s. 8d.-Auditor having allowed a charge of £1000 in respect of these six witnesses-Held that the whole of the sum claimed could not be brought under the head of expenditure reasonably necessary for the conduct of the defence, that the expenses of two witnesses only should be allowed, and that, with regard to the other four witnesses, the case should be remitted to the Auditor to fix a reasonable allowance on the basis that these witnesses had been examined on commission in America. Ferry-Title to ferry-Action of interdict against member of the public conveying passengers for hire across salt-water strait-Pursuers founding on dispositions of right of ferry granted by proprietors of lands on each side of strait-Denial by defender that pursuers possessed any "exclusive " right of ferry-Held that the pursuers had averred a prima facie title to the right of ferry sufficient to entitle them to sue an action of interdict, and that the defence was irrelevant. London, Midland, and Scottish Railway Com . 630 pany v. M'Donald Husband and wife-Aliment-Interim aliment-Married Women's Property (Scotland) Act, 1920 (10 & 11 Geo. V. cap. 64), section 4-Action of separation by wife against husband-Wife having a separate income-Motion by husband for an interim award of aliment-Interim aliment granted to husband at the rate of 10s. a week. Adair v. Adair-0. 524 THE SCOTS LAW TIMES-DIGEST. 825 Husband and wife Aliment-Interim aliment-Married Women's Property (Scotland) Act, 1920 (10 & 11 Geo. V. cap. 64), section 4-Action of separation by wife against husband-Wife having a separate income-Reclaiming note against an interim award of aliment to the husband-Held that in a consistorial case, as a result of the Act above quoted, interim aliment could competently be awarded to an indigent husband, and that in the present case the discretion of the Lord Ordinary had been rightly exercised. Adair v. Adair . 576 on Husband and wife-Divorce-Effect of divorce testamentary provisions by husband in favour of wife-Husband's trust disposition and settlementWill, executed before divorce, directing trustees to pay to wife a share of capital of the residue and the liferent of the balance of the residue-Declaration that provisions in favour of wife should be in lieu of legal rights-Husband dying one year after divorcing wife, and making no changes in testamentary provisions in her favour-Held that divorced wife, who survived her husband, was not entitled to provisions in her favour under his will. Towse's Trustee v. Towse and Others-0 465 Insurance - Marine - Voidability-Duty to discloseMarine Insurance Act, 1906 (6 Edw. VII. cap. 41), sections 17 to 21-Marine insurance policy effected by registered owner of British ship-Non-disclosure by assured of arrangement whereby he registered as owner for temporary purpose and with limited interest and under obligation at conclusion of voyage to transfer ship to a Greek subject Active misrepresentation that the vessel was entitled to be registered as British owned, whereas she was notGreek-owned vessels not at time insurable in ordinary market and on ordinary terms-Ship scuttled and a total loss-Held that assured was not entitled to recover under the policy in respect that the un Insurance Marine Insurance Act, 1906 (6 Edw. VII. cap. 41), sections 17 to 21- Marine insurance policy over cargo in British-owned ship effected by Greek subject-Non-disclosure by assured of fact that ship had been purchased by him and that British owner was registered as owner for temporary purpose, and with limited interest and under obligation to transfer ship to assured at conclusion of voyageActive misrepresentation that the vessel was entitled to be registered as British owned, whereas she was not-Greek-owned vessels not at time insurable in ordinary market and on ordinary terms Ship scuttled and cargo lost-Held that there were (1) failure to disclose facts material to the risk and (2) active misrepresentation disentitling the assured to recover under the policy. The S.S." Spathari" 126 Demetriades & Company v. The Northern 126 126 Insurance Marine Voidability Duty to disclose Borthwick v. The British General Assurance Demetriades & Company v. The Northern 126 Insurance-Marine-Constructive total loss-Notice of abandonment by owner-Underwriters' refusal to accept notice, but acceptance of continuation riskSalvage undertaken by underwriters through contractors-Contractors, after beginning salvage operations and without notice to underwriters, suspending operations and proceeding to another more urgent case of salvage-Lapse of six weeks during which stranded vessel exposed to further risk-Salvage operations resumed, vessel salved, and dry-dockedAction by the owner to recover from the insurers International law-Mortgage-Intimation-Bankruptcy -Beneficiary domiciled in England acquiring vested right to share of funds held by Scottish marriage contract trustee Assignation of said share by mortgage in English form-Mortgagor adjudicated bankrupt under English Bankruptcy Acts prior to intimation of mortgage to marriage contract trustee -Competition between mortgagee's representatives and trustee on bankrupt estate for the sum assigned -Law to be applied-Held that the law of England was applicable and, in accordance there with, the mortgagee's representatives ranked and preferred. Forbes v. Official Receiver in Bankruptcy-O. 522 Judicial factor-Bankruptcy (Scotland) Act, 1913 (3 & 4 Geo. V. cap. 20), section 163-Judicial power for winding-up estates of parties deceased-Factor selling heritage without previously obtaining sanction of the Court-Held in a note by the judicial factor for power to make up title and to sell heritage that the application for power to sell was unnecessary. Note-Munro (Lowe's Judicial Factor). 751 Note-Thomson (M'Kay's Judicial Factor) 751 Judicial factor-Curator bonis to incapax-Petition by curator bonis for authority to complete a title to heritage by special service in the person of his ward— Petition refused as unnecessary. 751 751 Judicial factor-Trusts (Scotland) Act, 1921 (11 & 12 Geo. V. cap. 58), section 4-Power to sell heritageJudicial factor being appointed on a trust estate through trustee accepting office and thereafter refusing to act-Held that the judicial factor had power to sell heritage in virtue of his being a "trustee" in terms of the statute, and therefore that the application was unnecessary. Note-Munro (Lowe's Judicial Factor) Note-Thomson (M'Kay's Judicial Factor) Jurisdiction-Sheriff Court-Carrying on businessPerson ceasing to carry on business within the sheriffdom and subletting his premises to another who thereafter carried on an independent business in the premises-Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), section 6 (b), as amended in 1913 -Decree granted in Sheriff Court-Held that there was no jurisdiction in respect that the defender did not " carry on business " or have a place of business " within the sheriffdom, and decree of reduction granted. Justiciary cases-Bill of suspension-CompetencyComplainers craving the suspension of a warrant granted under the Betting Acts to enter their premises and there to seize certain documents-Averment that certain letters had been seized and opened-Amendment presented by the complainers craving alternatively (1) that the Court should suspend the seizure and retention by the respondent of seven letters alleged to have been opened illegally by a police officer acting under the warrant granted by the magistrate, and (2) that the Court should suspend the use of these "letters or their contents in any manner of way in, for, or for the purpose of any proceedings in the said Police Court or the Court of competent jurisdiction " -Undertaking by prosecutor that he would depart from the charge against the complainers if the magistrate in the course of trial should decide that the letters and their contents had been seized illegally -Held that the bill of suspension, if not absolutely incompetent, was at least highly undesirable, and that in view of the prosecutor's undertaking it was unnecessary-Bill of suspension therefore refused. Paterson v. Macpherson-J 159 an Justiciary cases- -Complaint-Relevancy-Causing obstruction on a public street by holding a public meeting there-Complainer presenting a bill of suspension on the ground that the averments in the complaint did not constitute an offence under the Glasgow Police Act, 1866 (29 & 30 Vict. cap. cclxxiii), section 149, Article 47, that the real objection taken was to holding a public meeting in a public street, which the complainer was entitled to do, and that there was no proof of obstruction-Held that there was no such thing as a private right in any individual to make use of any public street for holding public meetings; that if a public meeting were so held due regard must be paid to the equal participation of all the members of the public in the various uses for which public streets were kept open, of which free unrestricted passage was the most important; and that the bill of suspension should be refused. Aldred v. Miller-J 613 Justiciary cases Education (Scotland) Acts, 1872 to 1918-Title to prosecute-Complaint on the ground of failure to provide proper education for a child brought at the instance of "the person appointed by the Education Authority for the County of Lanark to prosecute"-Plea by the accused that the complaint should have been at the instance of the School Management Committee or of the person appointed by them-Held that an Education Authority or the person appointed by them could competently prosecute such a complaint. Hiddleston v. Wilson-J 463 Justiciary cases-Jury trial-Procedure-Sheriff-Substitute in the course of his charge putting two questions to the jury for their consideration and handing to them a written note of these questions-Bill of suspension and liberation presented on the ground that such departure from ordinary practice was fatal to the conviction which followed-Held that it must be assumed that the Sheriff-Substitute gave all proper directions to the jury, and that while it was strongly desirable that in these matters the ordinary and traditional practice should be observed, nothing had been done which was contrary to law so as to warrant the Court in regarding the trial as other than fair, and that the bill of suspension should be refused. Cameron v. H.M. Advocate 599 432 35 Justiciary cases Relevancy of complaint — Assault Corporal chastisement administered by a school teacher-Complaint on ground of assault not setting forth that the person assaulted was a pupil in the school nor that the punishment given was on account of a school offence, nor that such punishment was excessive-Held that a complaint specifying the manner or modus of the assault in ordinary form was relevant in the case of a school teacher charged with inflicting excessive corporal punishment. Brown v. Hilson-J . Justiciary cases Stated case-Competency-Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), section 61-Application for stated case made orally at time of pronouncing sentence and request entered in minutes of procedure at trialSubsequent written application by accused's agent posted within, but received by the clerk of Court, outwith the five days allowed by the Act for making application-Objection that stated case incompetent -Observed per the Lord Justice-Clerk and Lord Hunter that the Court would not readily entertain such an objection in the circumstances stated, but opinions reserved thereon-Opinion per Lord Anderson that the oral application was bad, in respect that the entry in the minutes of procedure was not signed by the accused or by his agent, but that the written application had been timeously made. Smith v. Gray Justiciary cases Statutory 812 offence-Betting-Betting Act, 1858 (16 & 17 Vict. cap. 119), sections 1 and 3— Licence-holder knowingly and wilfully permitting his house to be used for betting purposes-Drinking bar measuring only 9 feet by 9 feet-Bets being made openly at the side counter or at or close to the main counter when the licence-holder was either standing behind the main counter serving customers or sitting in a chair behind said counter-Licence-holder able to see what was going on-Bookmaker always to be found in the premises at certain hours of the dayHeld that, having regard to the small dimensions of the premises, the constant presence of the bookmaker when bets were being made and money passed in settlement of bets, and the fact that the licence-holder was present on the premises with a clear view thereof when the above transactions were going on, the licence-holder was rightly convicted of knowingly and wilfully permitting his premises to be used for the purpose of betting. Dryden v. Mackay-J 457 Justiciary cases-Statutory offence-Burgh-Boat-hiring licence Conditions Ultra vires - Burgh Police (Scotland) Act, 1892 (55 & 56 Vict. cap. 55), section 304 (1) Conditions "for the safety of the lieges Licence issued containing condition that boats were not to be hired on Sunday-Circumstances in which held, in a summary prosecution for infringing the condition, that it was not clear that the prohibition of hiring on Sunday had not been inserted with a view to the public safety, and therefore that it was not ultra vires. Justiciary cases-Statutory offence-Coal Mines Act, 1911 (1 & 2 Geo. V. cap. 50), sections 90, 101 (2), 102 (1) General Regulations, dated 30th July 1920, Regulation 2-Complaint brought against the owners, agent and manager, charging them with failure to treat the floor, roof, and sides of the roads in a mine-Findings in fact showing that the regulation had not been complied with-Person charged as agent held in fact not to have been agent-Finding in fact to the effect that the company and their managing director were not in the habit of taking any part in the management of the mine-Liability of manager and owners to conviction-Held that the manager was liable and should be convicted, and (dissenting Lord Hunter) that the owners were not liable to conviction. Archibald v. The Plean Colliery Company Limited-J 581 specification of locus delicti given in the complaintHeld that the entire absence of any specification of locus, such at least as to determine the jurisdiction of the Sheriff, amounted to a case of incompetency within the meaning of the Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), section 75, and that the conviction which followed on such a complaint fell to be quashed. M'Millan v. Grant-J 86 86 Justiciary cases Statutory offence-Complaint-Relevancy-Owner, driver, and conductress all charged with permitting more than the authorised number of passengers to be carried in a motor bus-Owner, though not on the bus at the time of the offence, cognisant of the fact that over-crowding repeatedly occurred, and having taken no steps to put a stop to the practice-Held that where there was a general prohibition against a particular act, any person concerned in the contravention of the general rule was liable to the penalty for such contravention, and that the complaint as libelled was relevant. Lawson v. Macgregor--J Justiciary cases-Statutory offence-Finance (No. 2) Act, 1915 (5 & 6 Geo. V. cap. 89), section 13 (4)Owner of a farm obtaining repayment of import duty paid on a motor truck chassis on a statutory declaration and undertaking that the said motor truck was constructed and adapted for use and had been and would be used solely in connection with the conveyance of goods or burden in the course of trade or husbandry-Use of the truck for conveyance of domestic servants and personal luggage when visiting his farm-Held that the motor truck was used for purposes for which the owner was not entitled to use it within the meaning of the Finance (No. 2) Act, 1915, section 18 (4). Lithgow v. Foster-J. 31 Justiciary cases-Statutory offence-Finance Act, 1920 (10 & 11 Geo. V. cap. 18), section 18-Roads Act, 1920 (10 & 11 Geo. V. cap. 72), section 1 (1)-Right of a Procurator-Fiscal to prosecute for (1) a failure to exhibit on a motor car the excise licence referable to it and (2) an alteration of the identification mark on a motor car-Held that where a contravention of the Roads Act, 1920, was alleged a complaint at the instance of the Procurator-Fiscal was competent. M'Millan v. Grant-J Justiciary cases-Statutory offence-Gaming Machines (Scotland) Act, 1917 (7 & 8 Geo. V. cap. 23)—“ Any place whether enclosed or not "-Showman having a stance on an open space in Motherwell known as the "Wellington Street Showground," and having set up thereon a machine or mechanical contrivance known as "The Latest and Greatest Derby Race"-Held that the open space in question constituted a place " within the meaning of the Act, and that the showman was rightly convicted of an offence thereunder. Dawson v. Wright J 594 Justiciary cases-Statutory offence-Local AuthorityBye-law-Ultra vires-Public Health (Scotland) Act, 1897 (60 & 61 Vict. cap. 38), section 65-Bye-law to the effect that the number of passengers to be carried or conveyed in a public conveyance was not to exceed the sitting accommodation provided-Contention that the bye-law was bad (1) because it was a mere general statement, and not a positive enactment; (2) because the duty of obeying it was not laid upon any particular person; and (3) because there was no legal standard for measuring or estimating the sitting accommodation in a public conveyance-Held that the bye-law contained a clear prohibition against the conveyance of more passengers than the number for which the sitting accommodation provided seats, and that it was valid and enforceable, as a general standard of the legal carrying capacity of public conveyances, fixed with reference to the sitting accommodation provided, and of universal application, had been laid down by the Railway Passengers' Duty Act, 1842 (5 & 6 Vict. cap. 79), sections 13, 14, 15, 18. Lawson v. Macgregor-J 609 Justiciary cases-Statutory offence-Onus probandiCoal Mines Act, 1911 (1 & 2 Geo. V. cap. 50), section 86, and General Regulations made thereunder, dated 30th July 1920, Regulation 2-Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), section 19 (3)-Held (dissenting Lord Hunter) that it lay upon the prosecutor to prove that the natural conditions in the levels of a mine were not such as to comply with the requirements of the General Regulations. Archibald v. The Plean Colliery Company 581 Justiciary cases-Statutory offence-Sale of Food and Drugs Act, 1875 (38 & 89 Vict. cap. 63), section 6-Sale of Food and Drugs Act Amendment Act, 1879 (42 & 43 Vict. cap. 30), section 2-Article of food exposed for sale in a shop window and ticketed butter mixture "-Demand by customer for "1 lb. of that butter in the window "-Customer having read the ticket describing the article as above, and having knowledge of the terms of the ticketHeld (diss. The Lord Justice-General) that the article sold to the customer, being de facto margarine, was "not of the nature, substance, and quality of " butter, "the article demanded," and that the description of the article on the ticket as butter mixture was not sufficient to convey to a customer Justiciary cases-Statutory offence-Street Betting Act, 1908 (6 Edw. VII. cap. 43), section 1-Loitering for the purpose of receiving bets-Bookmaker's assistant travelling through the streets of a burgh in a motor car and receiving from a sub-agent a bundle of betting lines at a time when the motor car had slowed down in order to turn from one street into another-Held that the occupant of the motor car was not loitering for the purpose of receiving bets. Williamson v. Wright-J. 363 Justiciary cases Statutory offence-Street Betting Act, 1906 (6 Edw. VII. cap. 43), section 1 (1), (2)—Competency of evidence-Accused person when arrested by the police dropping a sealed envelope-Constables taking possession of the sealed envelope and producing it at the trial to the magistrate-Magistrate opening it and finding therein a number of football coupons which became part of the evidence upon which conviction ultimately proceeded-Held that the proceedings of the police were unobjectionable, and a bill of suspension on the ground that it was illegal and incompetent for the magistrate to order the opening of the envelope and to allow its contents to be used in evidence refused. M'Gowan v. Mackenzie-J. 596 Justiciary cases-Statutory offence-Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), section 19 (5)—Complaint under the Coal Mines Act, 1911 (1 & 2 Geo. V. cap. 50), describing an accused person as "being the agent " of a mineCrown in the Sheriff Court joining issue on the question of agency and evidence being led regarding it-Contention, by the Crown upon a stated case that as the accused person had taken no preliminary objection challenging the statement that he acted in that capacity, he must be held to have admitted that the description in the complaint was accurate, and that no proof of agency was necessary-Held that as the point had not been taken timeously in the Sheriff Court where evidence had actually been led upon the matter, the Crown had in effect waived the technical plea, and could not raise it subsequently upon a stated case. Archibald v. The Plean Colliery Company Landlord and tenant-Agricultural Holdings (Scotland) Act, 1928 (13 & 14 Geo. V. cap. 10), section 12 (6)— Compensation for disturbance-Landlord terminating tenancy by notice-Tenant thereupon taking another farm with a sheep stock bound to it, and incoming tenant to farm in question not taking over the stock, it being unsuitable for his requirements -Sheep stock being sold by public roup-Outgoing tenant averring that stock was thus sold at break-up value whereas it was worth to him going-concern value, the difference in value being the amount of his claim-Held that the tenant had averred a relevant claim. Wright v. Keswick 650 Landlord and tenant-Compensation for improvements— Agricultural Holdings (Scotland) Act, 1908 (8 Edw. VII. cap. 64), section 1 (1), 35 (1) and (2)— Agriculture Act, 1920 (10 & 11 Geo. V. cap. 76), section 18 (2)-Landlord selling the lands at same time as tenant quitting the same-Liability of new landlord for compensation-Tenant claiming compensation for unexhausted manures, etc., from new |