exists but jurisdiction has been given by statute. ARREST OF SHIPS AND ACTIONES IN Another good and brief exposition is to be found REM IN SCOTLAND. By J. O. TAYLOR, Esq., M.A., LL.B., Advocate. In a recent action of arrestment and sale of a ship in the Court of Session, proceedings were stopped by the Lord Ordinary upon the ground that the summons and proceedings were inept for the following reasons: (1) There had not been a previous application in the Bill Chamber for warrant to arrest, but arrestment had proceeded only on the ordinary warrant to arrest a ship contained in the summons. (2) The sum mons was directed against and served upon only the master as representing the owners, and there had been no arrestment ad fundandam jurisdictionem. (The master in this case, however, had been for more than forty days resident in Scotland.) (3) The action appeared to be intended for an actio in rem, and the summons did not call as defenders "all parties interested in the ship," as was the rule in the English Admiralty actio in rem. No reclaiming note was taken against this judgment, as there was another process depending, by concurring in which the pursuers could work out their remedy, but if it had proceeded further very interesting questions of maritime law and practice would have arisen, and the whole subject would have been brought under review. Upon each of the above points it will be submitted later that the requirements alleged to be lacking were only superfluities, but the main purpose of this article is to shew how urgently necessary is a simple code of rules for the guid ance of practitioners in procedure of this nature. The Rules of the High Court of Justice in England relating to similar actions are few, clear, and easily comprehended. In Scotland, on the contrary, there is not even an Act of Sederunt. The steps of process necessary to arrest and sell a ship ought to be well known and easily found. As it is, practitioners find their only guidance in widely scattered and frequently contradictory decisions. It is even necessary to search for obiter dicta in the books as far back as Shaw's Reports and passages in still older works dealing with the law and practice of the old Court of Admiralty, whose powers and jurisdiction were transferred to the Court of Session in 1830. The English law relating to maritime actions in rem and their distinction from personal actions is well understood and constantly acted upon. The procedure is equally clear and carefully defined. The law may be found shortly stated in Marsden's Collisions at Sea (7th ed., p. 85 et seq.) with reference to collision cases, but the form of action is equally applicable where there is some other maritime lien, and, indeed, where no lien in Abbott (14th ed., pp. 1035-1038). The procedure is found at once by reference to the Rules of the High Court. A simple form of writ is given (App. A, Pt. I., Nos. 11, 12). It is addressed to "the owners and parties interested in" the ship named, and indorsed with the amount of the claim. It is served upon the ship in a similar manner to a warrant of arrestment in Scotland (O. 9, r. 12). The actual warrant of arrest itself, of which a form is given (App. A, Pt. I., No. 17), is issued after the writ of summons is issued, and may be served by the Marshal of Court (O. 9, r. 11). It is advised that this be done at the time of, or immediately after, the service of the writ of summons. There is no need for a preliminary arrest in order to found the actio in rem, as has been suggested in several cases in Scotland. For subsequent steps of procedure the rules provide a clear guide. In Scotland, however, the distinction between actions in rem and in personam has been so little understood, that only in one or two cases, and those of very recent years, have actions been brought in the Court of Session which would come within the definition of an actio in rem in the English Admiralty Court. An actio in rem is the normal and proper method of working out the remedy afforded by a maritime lien over a ship, although the liability of the ship in Admiralty and of the owner at common law are always concurrent. In England, indeed, it is only after this remedy has failed, or partially failed, that recourse is usually had personally against the owner. Where the owner has appeared this recourse may be made effective against him in the actio in rem, the claim in which, in so far as not satisfied by the proceeds of the ship, transmits against the owner (The Dictator, [1892] P. 64 and 304), and may be made effective against him by other forms of diligence. Where no appearance is made by the owner, the actio in rem cannot found personal liability against him. This requires a common law action if it is desired to recover in excess of the proceeds of the res. In Scotland the reverse proceeding is more usual, i.e. proceedings against the owner as personal debtor, followed by recourse, in the event of his failure to pay, against the ship itself. So far as may be traced from the various decisions in the books, there appear to have been three courses followed in the Scottish Courts by persons who wished to work out a maritime lien. (1) The pursuers bring a simple petitory action against the owner and, having obtained decree against him, put it into execution by a process of arrestment and sale of the ship. This is by far the most usual procedure. In principle it differs nowise from any other civil action and diligence, the arrestment and sale being the same diligence, for example, as a poinding and sale of a defender's goods. If the proceeds of the ship are insufficient, the decree can be put into execution against other property of the owner. This action is equally applicable to the case where no maritime lien exists. effective way of bringing the action to the notice of such persons, and unless they become aware that the ship in which their interest lies is in fact arrested, or see the advertisement of the sale, they remain in ignorance of the action. The insertion of these words, therefore, appears to be ineffective, and if ineffective, unnecessary, and might well be omitted. It is, of course, an imitation of the instance of the English writ of summons, which is directed against "the owners" (unnamed), "and parties interested in" the ship, and served upon the ship. The conclusions for expenses in the "Pole Star" summons are (i.) against those appearing and resisting the proceedings, and (ii.) quoad the expenses of the arrestment and sale, to have those paid by priority out of the (2) In 1831 the case of Taylor v. Williamson (9 S. 265) decided that it was not necessary to bring two separate actions as above, but competent to combine both in one-i.e. an action of constitution, arrestment and sale. This, how ever, still remained, so far as the conclusions for constitution, purely a personal action, and could be brought, calling the ship's owner alone as the defender. There are few cases traceable in which this course has been followed, but the above case is quoted with approval in the text-proceeds. books and has doubtless been followed more than once. In the Clan Line case (1913, S.C. 967) the Lord President (Dunedin) also expressed the opinion, in answer to a doubt by Lord Johnston, that it was perfectly competent to combine conclusions for constitution with conclusions for arrestment and sale. The claim constituted may be vindicated against the ship by sale, and if not then satisfied, against the owner or his other property. (3) The third class of action is the Scottish equivalent of the English actio in rem. It does not ask for a decree against anyone for money, but for a declarator as against the whole world | that the pursuer has a claim, has a lien in respect of it, and is entitled to have the ship sold for his claim. Warrant for sale follows. No decree passes against the owner upon which ordinary diligence can proceed. If the ship fails to realise enough to pay the pursuer's claim, and he wishes to proceed further, he must bring a petitory action for the balance. One example of this Scottish actio in rem (the writer has been unable to trace any other) is the "Pole Star"-Ellerman's Wilson Line Ltd. v. The Northern Lighthouses Commissioners (not reported. Boxed 1st July 1919, and referred to in Ellerman's Wilson Line Ltd., Petrs., 1920, 2 S.L.T. 338). In the latter report it is stated that this was the first instance in Scotland of an Admiralty actio in rem. It was brought because a personal action against the Commissioners was excluded by the Public Authorities Protection Act. The defenders were assoilzied on the merits, but no objection was stated to the new form of action. The defenders called were the Commissioners as owners and "all other persons, if any, having or pretending to have right to or interest in the said steamship, whether by way of property, bond, mortgage, debenture security, maritime lien or right of retention or otherwise in any manner of way for their respective interests." It is difficult to see the necessity or advantage, upon any principle, of this general summons of parties interested, for there is no In "The Carmel "-Hatton v. Aktieselskabet Durban Hansen (1919 S.C. 154) a petition was brought in the Bill Chamber for warrant to arrest the ship for the purpose of initiating an actio in rem. This action, however, was never raised, for a petitory action against the owners succeeded. At present there are other petitions of the same nature in the Bill Chamber, apparently so presented because it is thought that a preliminary arrestment is necessary. There is one case "The Abbey Holme". Clark v. Hine and Others (1908 S.C. 1168; Session Papers, No. 172)-which cannot apparently be placed with accuracy in any of the above three categories. The summons called the owners, mortgagees, and other known claimants, all by name, but contained no general summons of "all parties interested." It was, in so far as no personal petitory decree was possible under it, an actio in rem. On the other hand, it was not directed against all and sundry. Its subsequent conclusions were for sale, etc., and might equally apply to an actio in rem, or the use of the process of arrestment and sale as an ordinary diligence. On the whole it is thought that this was an actio in rem, and it should be noted that no objection was taken to the absence of a general summons. The existence of all these varieties of maritime actions makes one thing manifest, and that is, that the principle of the actio in rem is not properly comprehended in Scotland, and apparently never has been, although the reported cases indicate a groping after the light. Throughout all the decisions there is evident a confusion of the action of arrestment and sale which, in the case of a ship, is the equivalent of a furthcoming, or perhaps more properly of a poinding and sale, with the action of constitution, arrestment and sale, which seems to have been a "bad shot" at the English actio in rem. The use of the term "arrestment," also, as applied to ships has been peculiarly misleading, and has led to confusion of the arrest of a ship with the various kinds of arrestment-ad a fundandam jurisdictionem, in security, in execu- THE LATE MR A. C. D. VERT, S.S.C., EDINtion-with which we are familiar in every kind | BURGH.-Mr A. C. D. Vert, S.S.C., who was of action. The arrest of a ship is quite special. well known in legal circles in Edinburgh, has It is a formal declaration that the ship is under died at his residence at 41 Stirling Road, the jurisdiction of the Court, and must not be Trinity. Mr Vert, who was fifty-eight years of removed. It can only be made completely age, was educated at George Watson's College effectual by dismantling. Arrestment of a ship and Edinburgh University. He became in execution of a decree is a different process partner in a law business in Haddington; later actually, and should be called what it is-poind- he went to Greenock, and over thirty years ago ing. Similarly arrest of a ship differs from he began business in Edinburgh. arrestment ad fundandam jurisdictionem in creating a nexus, which arrestment ad fundandam jurisdictionem does not do, and from other arrestments in not being used in the hands of the debtor's debtor. In English law no such confusion is possible. The arrest of a ship is one separate and well-known process. Corresponding to arrestment ad fundandam jurisdictionem is the warrant for "service outwith the jurisdiction." Garnishee orders, etc., take the place of our arrestments in diligence. The English Courts have different names for what are essentially different processes. No confusion therefore arises. In this connection it may be noted that the practice of making application in the Bill Chamber for warrant to arrest ships, which it is submitted is unnecessary, and which will be examined later, appears to have arisen from just such a confusion with arrestment ad fundandam jurisdictionem, which, when necessary, must be a preliminary to the action for which it is to found jurisdiction. (To be continued.) FACULTY OF ADVOCATES. ELECTION OF VICE-DEAN.-At a meeting of the Faculty of Advocates held on 26th January, the Dean (Mr A. H. B. Constable, K.C.) presiding, Mr Charles Herbert Brown, K.C., was elected Vice-Dean of Faculty in succession to Mr James A. Fleming, K.C., who has resigned. (We hope to publish a portrait biography in an early issue.) HOUSE OF LORDS.-The latest list of causes standing for hearing in the House of Lords contains the names of only two Scottish appeals, viz.: John Smith & Son v. Moore (Surveyor of Taxes) and Earl of Minto v. Galloway. MESSRS J. & J. MILLER, W.S., Perth, have assumed as a partner Mr D. A. Coates, solicitor, who has been associated with them in the conduct of the business for the past twelve years. THE LATE MR W. A. RAMSAY, ADVOCATE.— Mr William Alexander Ramsay, advocate, the news of whose death we received while going to press in the last issue, died on 18th January last at the early age of fifty-two years. Mr Ramsay was the eldest son of Emeritus-Professor G. G. Ramsay, for many years Professor of Humanity in the University of Glasgow. After education at Oxford, where he took his B.A. degree in 1891, subsequently at Glasgow University where he graduated LL.B. in 1894, Mr Ramsay was called to the Scottish Bar. He was frequently employed as a Commissioner to take evidence of witnesses and by the Divisions to report upon petitions under remits. He also did good work as a Court of Session reporter. During the war he was appointed Commissioner for Civil Liabilities of Soldiers and Sailors at Aberdeen and Dundee, in which capacity he put in three years' important work. Latterly, and particularly since the death of his wife in 1915, he had not enjoyed good health. Mr Ramsay was a nephew of Sir James Ramsay, and first cousin of the Duchess of Atholl. His younger brother, Sir Malcolm Graham Ramsay, K.C.B., is Controller of Establishments to the Treasury. WE regret to announce the sudden death on Wednesday last of Mr J. C. R. Macdonald, W.S., at Dumfries. Mr Macdonald was a wellknown conveyancer and a leading member of the profession in Southern Scotland. WE regret to announce the sudden death of Mr James Peebles Kennaway, town-clerk of Auchterarder. Head of the firm of Kennaway & Co., solicitors and estate agents, he was depute town-clerk of the peace for the Central District Committee of Perthshire County Council, a governor of Morrison's Academy, Crieff, and acted as local agent for the County and City of Perth Savings Bank. ACCOUNTANTS AND ACTUARIES.-The annual general meeting of the Institute of Accountants and Actuaries in Glasgow was held this weekSir R. C. Mackenzie, president, in the chair. the motion of the president, the report and accounts were unanimously adopted. following were elected members of council in room of those retiring by rotation: Messrs The Dugald Bannatyne, William Ferguson, William powers of the Food Controller under RegulaShankland, and Percy Stewart. The remaining tion 2F of the Defence of the Realm Regulamembers of council were re-elected, and the tions.-K.B. Div. (Lord Reading C.J., ShearCouncil for the year is as follows: President-man and Sankey JJ.).—8th June 1920. Sir R. C Mackenzie; Members of Council- CANADIAN APPOINTMENT FOR SCOTTISH SOLICITOR.-The appointment of Mr James Cormack as Junior Trade Commissioner of Canada bas just been made. Mr Cormack, who is a Scots solicitor and also a Manitoba barrister, served his law apprenticeship with Messrs Connell & Campbell, S.S.C., Edinburgh, and is well known in legal and university circles. DECISIONS IN THE ENGLISH Binney v. Inland Revenue Commissioners. REVENUE-EXCESS PROFITS DUTY-TRADE OR BUSINESS-COMMERCIAL TRAVELLER-FINANCE (NO. 2) ACT 1915 (5 & 6 GEO. V. CAP. 89), SECTION 39.-Held that the term "commercial traveller" in section 39 of the Finance (No. 2) Act 1915 was not confined to an individual between whom and his employer there exists the relationship of master and servant, and that it applied to an agent who had no place of business and who sold or procured to be sold the goods of four different firms by travelling round the country himself and also by employing other travellers to assist him.-K.B. Div. (Rowlatt J.).-7th June 1920. Gurney v. Houghton. Farr v. Motor Trades Mutual Insurance Society. INSURANCE-ACCIDENT INSURANCE - POLICY -CONDITION-MOTOR-CAB-CAB TO BE DRIVEN IN ONE SHIFT DURING TWENTY-FOUR HOURS— BREACH OF CONDITION-SUBSEQUENT ACCIDENT WHILE CAB BEING DRIVEN IN ONE SHIFT.The owner of a taxi-cab insured against damage to the cab and accidental injuries to third parties. In the proposal form, which, together with the answers, was incorporated in the policy, the assured stated in answer to the question whether the cab was driven in more than one shift in the twenty-four hours that it was driven in only one. For some time after the policy was issued the cab was driven in two shifts, but in November 1918, when a collision with another vehicle occurred, it was being driven in only one shift. Held that the policy was not rendered void by reason of the cab having been run in more than one shift, as the answer did not amount to a warranty, and that the insured was entitled to recover in respect of the damage caused by the accident. Decision of Rowlatt J. (1920 S.L.T. 95) affirmed.-Court of Appeal (Bankes, Warrington, and Scrutton L.JJ.).— 10th June 1920. Earle v. Cow. PARTNERSHIP- -"RETIREMENT" OF PARTNER FORMATION OF PRIVATE WAR-DEFENCE OF THE REALM-FOOD CONTROL-BREAD ORDER 1918-WEIGHT OF LOAVES -VALIDITY OF ORDER-BREAD ORDER 1918, CLAUSE 8-DEFENCE OF THE REALM REGULATIONS, REGULATION 2F-DEFENCE OF THE REALM (CONSOLIDATION) ACT 1914 (5 GEO. V. CAP. 8), SECTION 1 (1).-Held that clause 8 of the Bread Order 1918, which provides that no loaf of bread shall be sold unless its weight be 1 lb., or an even number of pounds, was within the TENANT-PAYMENT OF TAX BY TENANT-TAX Hill v. Kirshenstein. REVENUE- PROPERTY TAX-LANDLORD AND pinks, and they had a full supply of lb. tins. They had in addition a large number of 1 lb. tins which were getting rusty when the fish began to run, and they therefore filled the 1 lb. tins first to the extent of over 3700 tins to avoid loss of these tins, and before they could proceed to fill the lb. tins the run of fish ceased and they were unable to prepare lb. tins at all. The cessation of the run of fish was in no way abnormal. It was agreed that there was failure by the sellers to deliver at Vancouver as at 30th September 1917. Held that there had been no failure of the subject-matter of the contract, that the sellers were not excused by the exception clause, or by the force majeure clause, as the non-delivery arose from causes under the control of the canners or shippers; and that the damages payable by them to the buyers fell to be assessed at the rate of exchange prevailing at the date of the breach of contract and not at the date of the award of an umpire to whom the dispute between the parties had been referred.-K.B. Div. (M'Cardie J.).-18th June 1920. Scaliaris v. E. Ofverberg & Co. CONTRACT-SALE OF GOODS-GOODS OF PAR The M. Lebeaupin, the buyer, and Messrs Richard Crispin & Co., the sellers, entered into two contracts in May 1917 for the supply under each contract of 2500 cases of British Columbia Fraser River salmon. The sellers, a firm of London merchants, in order to cover themselves made contracts with another London firm who in turn made contracts with the St Mungo Cannery and the Acme Cannery of British Columbia. The first of the two contracts contained the following words: "The salmon to be the first 2500 cases of lb. flat pinks packed by the St Mungo TICULAR BRAND MANUFACTURER'S LABEL Cannery, Fraser River, during the season of ABSENCE OF LABEL-ACCEPTANCE-REASONABLE 1917." The second contained the following OPPORTUNITY OF EXAMINATION-SALE OF GOODS words: "The salmon to be the first 2500 cases ACT 1893 (56 & 57 VICT. CAP. 71) SECTION 34 (1). of lb. flat pinks packed by the Acme Cannery, Merchants in the United States contracted in Fraser River, during the season of 1917." Each 1918 to supply to a London purchaser a quantity contract contained the following exception clause: of saccharine of the Monsanto brand. "In the event of the destruction, or partial de- goods were sold f.o.b. New York and were struction of the cannery plant or material or the shipped on a steamer bound for Liverpool. The packing being interfered with or stopped or vessel was however diverted by the Admiralty falling short through short run of fish or through in the course of the voyage and ordered to strikes or lock-outs of fishermen or workmen or Glasgow, where the goods were discharged. from any cause not under the control of the There were no special facilities at Glasgow for canners or shippers . . . . causing non arrival dealing with saccharine, and the saccharine was at destination . . . . the contract to be cancelled placed in bond and after considerable delay was in respect of such non-delivery or part non- sent on to London. After the goods arrived delivery as the case may be." There appeared there the purchaser discovered that part of the in large letters the words "subject to force saccharine did not bear the Monsanto brand. majeure." In the season of 1917 there was an It turned out that while the whole consignment excellent run of fish on the Fraser River. The had in fact been manufactured by the Monsanto St Mungo Co. began to pack the fish into lb. Company and was of their standard quality the tins and proceeded to prepare the tins as usual sellers, in order to complete the quantity, had by a cooking process, but found that the tins obtained a number of cases from another firm were defective and useless for the purpose. who had put their own label on the tins. The They therefore ceased to pack the tins, and purchaser claimed to be entitled to reject the before they could get a further supply of tins goods. Held that as the undertaking of a seller the run of salmon had practically ceased. The of goods sold as being of a particular brand is defects could not have been found until the tins that they will bear the label of the manufacturer were used and the St Mungo Co. had no reason which is put on goods of that brand in the to suspect them until they used them, but they ordinary course of business, there was no obligamight have been used and so tested at an earlier tion on the purchaser to accept goods which did date. In the case of the Acme Co. there was not bear the label, even although they had been an ample supply of fish in the season of 1917 made by that manufacturer, and that, as the ship to enable them to pack 2500 cases of lb. flat had gone to a wrong port, he was entitled to |