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INDEX OF CASES

ACCORDING

Τ Ο

SUBJECT-MATTER.

Note. --The figures refer to the number of the Page, and not to the number of the Case.

Arbitration-Arbiter-Holder of office—Reference clause interest of the general body of creditors and that a

-A dispute arose between a seatholder of & non- nominee of the landlord was not a proper person to established church and the management thereof in investigate and settle such claims," but that it connection with the letting of a sitting. In an action should be done by a qualified independent and of declarator at the instance of the seatholder against neutral trustee "-Objection sustained. the church management the defenders maintained Macleod's Sequestration

47 that the action should be dismissed in respect of an arbitration clause in the constitution of the church Bankruptcy Sequestration Trustee Election which provided that “If any disputes shall arise Objection to votes (1) that a creditor who had been as to the interpretation of this constitution, the same “ lady's companion ” to the bankrupt's wife was shall be referred to the bishop, but there shall be a a confident person ; (2) that the document of debt right of appeal to the Episcopal synod whose decision which was granted in India had prescribed according shall be final”—Held that as the reference was to a to the law of India ; and (3) that it was insuficiently bishop, now deceased, and not to the holder for the stamped according to the law of India-Held that as time being of an office, the clause of reference was of the objections were not instantly verifiable they fell no effect.

to be repelled. Queree v. Smith. 76 Munro v. Henderson

87

.

Arrestment - Recall Oppression - Personal Diligence Bankruptcy – Vesting of estate in trustee — Subjects

Act, 1838 (1 & 2 Vict. cap. 114), section 21-Creditor improperly included in sequestration Money, the obtaining instalment decree against debtor in Sheriff proceeds of forged cheques, found on person of accused Court, FifeCreditor collecting debt at residence of -Ownership. A person was arrested for forging and debtor-Creditor ceasing to collect and instalments uttering cheques. At the date of the arrest certain falling into arrear--Creditor arresting wages of bank notes and coins were found upon his person debtor - Circumstances in which held that the use and were taken possession of by the Procuratorof arrestment was oppressive, and arrestment recalled Fiscal. The accused pleaded guilty and was senon modified caution being found.

tenced. His estates were subsequently sequestrated. Stevenson v. T. Dixon Limited

45 In the course of the bankruptcy proceedings en

application was made by the bank which had Bankruptcy-Composition contract-Accession to com- suffered the loss to have the sum found on the

position agreement-A. & Son purchased a quantity accused withdrawn from the sequestration. Cirof goods which were delivered but not paid for. cumstances in which held that the bank had Subsequently the business of A. & Son was amal- identified part of the money obtained by means of gamated with the business of G. S. under the firm the forged cheques and were entitled to recover name of A. & Son. The original firm of A. & Son, it as their property, and that they were not entitled being in financial difficulties, instructed an accountant to recover any sum which they could not identify. to call a meeting of their creditors. At this meeting

Commercial Bank of Scotland v. Bolton

2 a composition was submitted, and the representatives, while unable to bind their constituents, agreed Bankruptcy Vesting of estate in trustee Subjects to recommend the acceptance of the proposal. One improperly included in sequestration–Tool of trade. of the creditors was represented by his son, who did At the date of sequestration a bankrupt possessed not appear in the minutes of the proceedings as patching and finishing machines which he used representing his father. The father refused to accept in carrying on the trade of a boot repairer. In the composition and brought an action against an action by the trustee in bankruptoy for delivery, A. & Son for the debt. Circumstances in which held circumstances in which held that the machines that the son attended the meeting as his father's were necessary to the bankrupt in order to make & representative and had accepted the composition, livelihood at his trade and were working tools, and that he had implied authority to accept, and that, as as such were not attachable for debt. the composition was in the hands of the accountant,

Morgan v. Browne

12 who was prepared to pay it, the action for payment of the price fell to be dismissed.

Burgh Boundaries Extension Scavenging M'Clung v. Ainslie

128

THE SCOTS LAW TIMES—DIGEST (SHERIFF COURT).

the Burgh Police (Scotland) Act, 1892, and section document was folded up and presented to the witnesses 24 of the Burgh Police (Scotland) Act, 1903—Objec- for signature; (3) that the witnesses signed outwith tions by railway company that the station and the presence of each other and did not see the testator portions of the railway included in the resolution did sign nor acknowledge the signature, nor did they not require scavenging, and that they themselves even see the signature of testator Held that the provided for its scavenging, and were best fitted to testamentary writing was ex facie valid and the mere provide for it-Objections repelled and resolutions fact that it might have been open to challenge did confirmed-Lanarkshire and Ayrshire Railway Co. v. not justify the refusal of confirmation. Renfrew County Council (Scotch County Council Bell v. Young

99 Cases, 127) followed. London and North-Eastern Railway V.

Justiciary-Statutory offence-Factory and Workshop Western District Committee of the County

Act, 1901 (1 Edw. VII. cap. 22), section 141—Com

mission of offence proved-Use of due diligence by Council of East Lothian

119

occupiers of factory-Failure to appoint a competent Carriage by 808-Bill of lading-Constitution of the

foreman-Circumstances in which held that the contract-Contract between shippers and carriers

occupiers had used due diligence to enforce the concluded by letter on terms of sailing bill of which

execution of the Act and exemption granted. the shippers had a copy-Sailing bill referring to bill Crampton v. Lithgows Limited

96 of lading in particular form--Goods forwarded to

Lithgows Limited v. Ross

96 carrier, but no bill of lading given-Held that the goods wore accepted by the carriers on the terms set Landlord and tenant-Factor-Reparation–Negligence forth in the sailing bill and bill of lading.

Property in dangerous condition Liability of Campbell v. United Steamship Company

55

factor-An action was raised against the factor of

a house for damages in respect of injuries caused Carriage by sea-Bill of lading-Exception-Anticipa- by gas poisoning due to the defective condition of

tion of risk from strikes—Ship failing to call for the service-pipe leading to the house. The factor goods contracted to be carried through fear of delay bad the entire management of the property and he by anticipated strike of dock labourers-Held that

refused to disclose to the parsuer's agents the names the carriers were protected by the exception.

of the owners. The pursuer's agents used all reasonCampbell v. United Steamship Company 55 able means to ascertain the names-Held that the

factor was personally liable. Contract-Constitution Church Sittings — A portion

Kennedy v. Benson

102 of the sitting accommodation of a non-established church was reserved for the exclusive use of con- Landlord and tenant-Furnished premises—Normal profit stituent members who might rent sittings, the Increase of Rent and Mortgage Interest (Restrictions) remaining sitting accommodation being free and Act, 1920 (10 & 11 Geo. V. cap. 17), section 9unappropriated. The practice of the management Observation on methods of ascertainment of normal was to let the seats to any member for an annual profit. rent payable in advance. The tenancy of the seat

Langdon v. Elliott

9 holders was not disturbed so long as the seats were not given up or the holder of the seat in arrears with Landlord and tenant-Housing, Town Planning, etc., the rent. The whole of the reserved portion was not Act, 1909 (9 Edw. VII. cap. 44), sections 14, 15, and 17 fully let. The management intimated to a member --House anfit for human habitation-Held that the and seatholder for many years that the pew which he tenant was entitled to refuse to pay rent. then occupied or any other would not be relet to him

Bell v. Gorman

74 although he was not in arrears with the rent thereof. In an action by the seatholder for a declarator that it Landlord and tenant-Housing, Town Planning, etc., was ultra vires of the management not to relet the

Act, 1909 (9 Edw. VII. cap. 44), sections 14, 15, and 17 pow occupied by him, held that the reletting of a -House unfit for human habitation-Unitness sitting to the same seatholder for a series of years did

irremediable-Tenant justifiably refusing to pay rent not establish a legal right to the sitting, as the right

-Local Authority declining to close house-Held (1) to the sitting was one of permission.

that as the landlord had not applied for an order for

ejection he could not be heard to say that he was Queree v. Smith.

76

unable to get the tenant out owing to the Rent Crown—Statute Exemption of Crown from statutory Restriction Acts; (2) that the inaction of the Local

restrictions- Increase of Rent and Mortgage Interest Authority was irrelevant in a question between land(Restrictions) Act, 1920 (10 & 11 Geo. V. cap. 17)—

lord and tenant; and (8) that the statutory obligation House taken on lease by War Office and let to & of the landlord is absolute and impossibility of pertenant-Held in an action of removing at the in

formance is no defence. stance of the Lord Advocate as representing the War Bell v. Gorman .

74 Office that the Act did not apply to the Crown.

Landlord and tenant-Housing, Town Planning, etc., Lord Advocate v. Barlow

72

Act, 1909 (9 Edw. VII. cap. 44), section 14Implied Diligence Poinding-Execution—Goods claimed by third condition at commencement of holding of reasonable party-Statement in execution that no third party

fitness for human habitation-House held on yearly bad come forward to claim-Statement admitted tenancy-Held that the Act did not permit any express to be untrue-Held that this misstatement was &

condition in the contract of let to exclude the implied defect in the execution which invalidated the diligence

condition. and interdict granted.

Bell v. Gorman . Cameron v. Cuthbertson

67

Landlord and Tenant-Housing, Town Planning, etc., Exocutor Confirmation–Testamentary writing-Execu

Act, 1909 (9 Edw. VII. cap. 44), section 14-Comtion — Challenge - In an application for confirma

mencement of Act-Hoase let in 1907 on yearly tion objections to the testamentary writing (1) that it

tenancy at rent of £18–Rent reduced in 1910 to $16 was partly in print and partly in writing, in English

-Held that the Act applied to the house. form and not holograph of testator; (2) that the Bell v. Gorman .

74

.

74

.

Landlord and tenant-Increase of Rent and Mortgage cap. 41), sections 1, 13, 14, and 16-Sheriff Courts

Interest (Restrictions) Act, 1920 (10 & 11 Geo. V. (Scotland) Act, 1907 (7 Edw. VII. cap. 51), sections cap. 17), sections 8 (1) and 18 (1) (d)-House let 88 and 44, and First Schedule, Rule 119-Held that for & year from Whitsunday 1920-Notice served the Sheriff has discretion to allow any person whom upon tenant on 9th October 1920 of intended increase he sees it to appear for a party. of rent to commence at Martinmas 1920—Second

Leiper

61 notice served upon tenant on 26th September 1921 of intended increase of rent to commence at Martiomas Loan-Money-lender-Money-Lenders Act, 1900 (68 & 64 1921-No notice to remove given-Held that the Viot. cap. 51), section 1 (1) and (2)—Bill of exchange provisions of section 18 (1) (d) justified the increases -Cautioner-A firm of money-lenders sued A for only up to Whitsunday 1921, that the increases the balance of the sum due under a bill of exchange paid since that date were not properly exigible, accepted by him-A averred that he had previously and that accordingly the tenant was entitled to aocepted a bill in favour of the money-lenders, jointly deduct the amount thus overpaid from the rent, with and as cautioner for B; that he was not inand Molloy and Another v. Thomson (1923, S.L.T. formed that that bill was in security for advances (Sh. Ct.) 95) followed.

previously made by the money-lenders to B ; that Glass v. Crombie

6 when the bill became due, B.being bankrupt, he paid

& sam to account and signed the bill now sued on, Landlord and tenant-Increase of Rent and Mortgage and that he had received no consideration for the

Interest (Restrictions) Act, 1920 (10 & 11 Goo. V. bills-Held that the averments were relevant to go cap. 17), section 5 (1)– Restriction on right to to proof, and as the acceptor of the bill was in the possossion—Failure by tenant to keep interior of position of a surety, he was entitled to have the whole house adequately clean for the due safety of the transactions, from the first loan to the original debtor, health of any person occupying the house Circum- opened up under section 1 (2) of the Money-Lenders stances in which held that the condition of the houso Act, 1900. was not directly prejudicial to the due safety of the

Hurwitz v. R.

92 health of adjoining occapiers. Observed (1) that the Act contemplates only such uncleanliness Loan-Money-lender-Money-Lenders Act, 1900 (B3 & 64 as is a danger of direct infection to neighbours, Vict. cap. 51), section 1 (1) and (2)-Trustee in or is of extraordinary danger through the trans- bankruptcy–Title to sue-In & substantive action mitting medium of those in immediate contact

by a trustee in bankruptcy to have the transactions with it ; and (2) that the “ nuisance" and the

between a bankrupt and a money-lender opened up, “ deterioration " referred to in section 5 (1) (b) of held that the trustee had a title to sue. the Act are distinct things, either of which if proved

Robertson v. Hurwitz .

94 against a tenant might deprive him of the protection of the Act.

Negligence—Streets Lighting Statutory duty on CorMaclver v. Struthers

15 poration-Burgh Police (Scotland) Act, 1892 (56 & 56

Vict. cap. 55) section 99—About 7 a.m., in December, Landlord and tenant Outgoing — Notice to quit

& cyclist was cycling at a time when the street Agrioultural Holdings (Scotland) Act, 1908 (8 Edw.

lamps had been extinguished and the street in darkVII. cap. 64), section 18-Agriculture Act, 1920

ness, when he heard & warning shout. The cyclist (10 & 11 Geo. V. cap. 76), section 84 (7)—Sheriff was going at the rate of six or seven miles an hour, Courts (Scotland) Act, 1907 (Edw. VII. cap. 51), was on his left or proper side of the road, and his sections 84, 85, 86, 87, and 89, and First Schedule, bioyole lamp was lit. The warning proceeded from Rule 110–Double ish at Martinmas for arable lands, & scavenger engaged in cleaning the streets, who was and at Whitsunday for grass lands-Notice given

working against the traffic, his barrow being wheeled less than a year before first ish and more than a close to the pavement on the left-hand side of the year before second ish-Held that where there is more roadway. On hearing the warning the cyclist was than one ish, the period of notice counts back from

about ten yards distant and did not and could not with the earliest ish and that the notice was not valid and

the aid of his lamp see the scavenger or his barrow. timeous.

He became alarmed at the shouting, applied bis Montgomerie v. Wilson

48 footbrake and swerved to the right. The streets

were greasy, as a result of rain, and the cycle skidded, Law agent - Agents for the poor—Nomination Con

in consequence the cyclist fell and broke his legfirmation of nomination by Sheriff-Sheriff Courts Circumstances in which held that the Corporation had (Scotland) Act, 1907 (7 Edw. VII. cap. 51), as amended failed in their statutory and common law duty of by (2 & 3 Geo. V. cap. 28), First Schedule, Rules lighting and keeping the streets safe for traffic and that 152–160—Intimation by Sheriff to agents enrolled the cyclist was not guilty of contributory negligence, in Sheriff Court of district to nominate three agents and the Corporation found liable in damages. for poor—Nomination by local society of three agents

Nicoll v. Corporation of Perth

50 -Objections by nominee (1) that he was not a member of local society, and that notice by local society con- Parent and child-Afiliation-Evidence-Admission of vening meeting did not intimate the purpose of the paternity-Subsequent denial-M. gave birth to an meeting ; (2) that the other two nominees practised illegitimate child on 18th July 1920. On 8th July outside the Court town and he would have to do the

130

THE SCOTS LAW TIMESDIGEST (SHERIFF COURT).

and averred that the admission of paternity was made evidence with regard to this letter-Circumstances under essential error.- Circumstances in which held in which found that there was suficient reason for that as S. had given an explanation of how he came to admitting the document and allowing proof in rogard admit paternity, no advantage could be derived there- to it. from, and S. assoilzied.

Crawford & Elliot v: Wainstein

18 Brown v. Smith

88

Process - Removal Church sitting-Notice to quitPersonal bar-Ejection after due notice to quit had been Sitting held for series of years by same seatholder

served—Landlord returning tenant for 1922-23 as The management of a non-established church the tenant for 1923-24 in compulsory statutory intimated to a seatholder by letter that they would return under the Lands Valuation Act, 1854— not relet his sitting to him-Beld (1) that tacit Legislature passing the Rent, etc., Restriction (Con- relocation was not applicable to a sitting; and (2) tinuance) Act continuing previous Act until 31st that a peace-warning is not required ander the July 1923-New Rent, eto., Restriction Act then Sheriff Courts (Scotland) Act, 1907, section 87, and coming into force and tenant's right to occupy Rules 112 and 118. becoming terminable by virtue of that Act (13 & 14

Queree v. Smith

76 Geo. V. cap. 32), sections 4, “5 (1) (a) (iii)," in respect that the pursuer became proprietrix before 80th June Process—Title to sue—Reparation-Negligence-A father, 1922, provided, however, that she could prove that as tutor of his pupil children, claimed damages from she reasonably required the house for occupation the landlord of the house lot to him for injury from by herself and family—Return to Assessor pled by gas poisoning sustained by them while residing with way of personal bar as showing that the proprietrix him in that house. He averred that the gas escaped had waived the notice to quit and had entered into from the service-pipe leading from the gas main to & contract of let for the year 1923-24 with the tenant the tenement in which the house was situated and for the previous year-Held that the return to the 3... that the pipe was under the control of the defender Assessor did not amount to personal bar on the Held that the father as tutor bad a title to sue. ground of waiver, and did not prove a contract of

Kennedy v. Benson

102 lease for the year 1923-24, and proof allowed as to whether the proprietris reasonably required the Process Writ Competency Action by & firm of house for occupation as a residence for herself

brewers craving production of a statement of all and family.

bottles in possession of an innkeeper belonging to Purves v. Graham

20 them, and, failing production of such statement,

then for delivery of a stated number of such bottles Prescription–Triennial-Maintenance and Attendance

Innkeeper admittedly in possession of bottles Act 1579, cap. 80— Claim against executor for repay- Held that the action was competent. ment of sums expended in maintenance of deceased

J. & R. Tennent Limited v. Samson

44 capax-Held that the claim fell within the Triennial Prescription Act.

Process—Writ-Style-Money-Lenders Act, 1900 (68 & Gilbert v. Hannah

86 64 Vict. cap. 51)-Form of initial writ where a

trustee in bankruptcy desires to open up the transProcess Ejection—Landlord and tenant-increase of actions between the bankrupt and a money-lender. Rent and Mortgage Interest (Restrictions) Act, 1920 Robertson v. Hurwitz :

94 (10 & 11 Geo. V. cap. 17)—Procedure appropriate to ordinary action followed, and Rent, etc., Restriction Railway Passenger Ticket Condition Act pled in defence as a bar to the action-Held that

journey tickets and outward halves of ordinary the action was competent.

return tickets. available on day of issue only” Purves v. Graham

20 - Passenger holding ordinary return ticket for a

journey which could be completed in one day with Property — March-fences Trees on boundary. The privilege of breaking journey at certain stations

branches of certain trees growing on ground be- Held that the passenger was not entitled after longing to one proprietor overhung the ground breaking his journey to resume and complete it belonging to a conterminous proprietor, and inter- on the day succeeding the day of issue of the ticket. fered to some extent with the growth of vege- Portpatrick and Wigtownshire Railway Jointtation. In an action to interdict the owner of the

Committee v. Brown trees from encroaching, held that the owner of the trees was bound to remove the overhanging branches, Revenue- Dog Licence - Dogs kept on farms or by and owner ordained to do so at the sight of and

shepherds-Application for consent to exemption to the satisfaction of a reporter.

from duty-Dog Licences Act, 1867 (30 & 31 Vict. Brockie v. Scougal

23 cap. 5), sections 3 and 8- Customs and Inland

Revenue Act, 1878 (41 & 42 Vict. cap. 15), section 22 Process—Petition and complaint-Breach of interdict

-Dogs Act, 1906 (6 Edw. VII. cap. 32), section 5– Interdict granted of consent—No formal intimation C.A.S., Book L. cap. xii. -Held that to entitle to respondent that interdict had been pronounced- an owner to exemption the dog must be either (1) In an action in respect of a breach of the interdict kept only on a farm, and not merely kept, but used granted, held that formal intimation of the interdict only for tending sheep or cattle; or (2) kept and used was in the circumstances unnecessary.

only by a shepherd, and only in pursuit of his calling Neville v. Neville

43

as such.
Ross and Others V. Alexander

- Single

53