treat them as still in transit until they reached their proper destination and was not bound to have the goods examined as soon as he heard of their arrival at Glasgow.-K.B. Div. (Rowlatt J.).-22nd June 1920. Wall v. London and Provincial Trust Ltd. OF EXCHANGE ACT 1882 (45 & 46 VICT. CAP. 61), SECTION 9 (1) (D).—Held (1) that a cheque for "7680 francs (Paris)" was a bill of exchange as being for a sum certain within the meaning of section 9 (1) (d) of the Bills of Exchange Act 1882; (2) that the drawer, in a question between himself and an endorsee, was not entitled to set up an oral agreement between himself and the original payee that the rate of exchange should be that ruling at the date of the cheque, and (3) that in an action on the cheque the rate of exchange to be taken in calculating the sum payable was that ruling at the date of the trial. O'Conner & Ould v. Ralston. COMPANY-DEBENTURES—— REDEMPTION-DISCOUNT-PROFIT-CAPITAL OR REVENUE-DIVI-| DEND.—A trust investment company was incorporated in 1900, the principal object of the company, as defined by its memorandum of-K.B. Div. (Acton J.).-28th June 1920. association, being to acquire and hold bonds, shares, stocks, etc., and from time to time to change such securities for others of a like nature. The memorandum also contained power to borrow on debenture stock. Article 125 of the articles of association provided that no dividend should be payable except out of net profits arising out of the business of the company. Article 126 provided that profits and losses arising from any change of investment should be carried to capital reserve and should be disregarded in estimating the net profits of the company. In 1900 the company issued a sum of debenture stock at par. Owing to the war and the general fall in the value of securities the company was able, in 1918, to redeem some of the debenture stock at a discount. The investments of the company at the date of the redemption shewed a corresponding fall in value. The directors claimed to be entitled to carry the amount of the discount obtained by the redemp-| tion to revenue account. Held that the discount was not a profit available for dividend.-Chan. Div. (Sargant J.).—22nd June 1920. GAMING--PARTNERSHIP FOR BETTING-ILLE GALITY.-Held that, under the Gaming Acts, a partnership for the purpose of betting was illegal, and that no action would lie at the instance of a betting firm to recover money paid by the firm in respect of bets.-K.B. Div. (Darling J.).—1st July 1920. Goldsmith v. Orr. Behrend & Co. Ltd. v. Produce Brokers Co. Ltd. CONTRACT - SALE OF GOODS DELIVERY DELIVERY FROM SHIP-INDIVISIBLE PARCEL On (56 & 57 VICT. CAP. 71), SECTION 30.-A quantity of cotton-seed was sold to be shipped from Egypt to London, and to be delivered in London to buyers' craft alongside. Two parcels of cotton-seed, consisting of 175 tons and 400 tons respectively, per the s.s. "Port Inglis," were appropriated by the sellers in part fulfilment of the contract and shipped to London. arrival of the vessel there, the buyers paid the sellers for the two parcels, took up the shipping documents, and sent craft to receive the goods. After a portion only of each parcel had been delivered it was found that the remainder lay beneath cargo for Hull, and the vessel then left for Hull, returning to London about a fortnight later, when the balance of the seed was tendered to the buyers. The buyers, however, contended that the departure of the vessel with the remainder of the seed on board amounted to a failure to deliver, and they kept the portion already delivered to them and demanded repayment of the price of the balance. Held that in the absence of any stipulation to the contrary the buyers were entitled to delivery of the whole of an indivisible parcel sold to them for delivery from a vessel which had begun delivery to them before she left the port to begin delivery BILL OF EXCHANGE-SUM CERTAIN-CHEQUE elsewhere, and that, under section 30 of the DRAWN IN FRANCS-RATE OF EXCHANGE-BILLS | Sale of Goods Act 1893, they were entitled to WAR-EMERGENCY LEGISLATION—LANDLORD AND TENANT-INCREASE OF RENT-DATE-INCREASE OF RENT AND MORTGAGE INTEREST (RESTRICTION) ACT 1919 (9 GEO. V. CAP. 7), SECTION 4 (1).—Held (Warrington J. dissenting) that the words of section 4 (1) of the Increase of Rent and Mortgage Interest (Restriction) Act 1919, with regard to an increase of rent after 25th December 1918, were to be construed with reference to the date when the increase came into effect and not the date when the agreement for an increase was made. Decision of the K.B. Div. (1920 S.L.T. 94) affirmed.—Court of Appeal (Bankes, Warrington, and Scrutton L.JJ.).-28th June 1920. Cohn v. Boulken. repayment of the price paid for the undelivered portion.-K.B. Div. (Bailhache J.).- 8th July 1920. LAW LIBRARY. BOOK NOTICES. Treatise on the Law of Sale of Personal Property. By Judah Philip Benjamin. Sixth Edition by Walter Charles Alan Ker, M.A. 1920. London: Sweet & Maxwell Ltd. Price £3, 3s. net. Benjamin on Sale" has long held an exceptional position among the standard text-books on English law. Its philosophic grasp of principle, its exhaustive treatment, its scientific arrangement, and its interesting comparisons of different legal systems, mark it off from the greater number of legal treatises in which these qualities are notably absent. The greater, however, are the original merits of such a work, the more difficult is it to preserve its characteristics, and even its identity, in the series of successive editions through which it is the fate of every successful legal work to run. The necessity for embodying in the scheme of the original work the subsequent developments of the law, of keeping the record of case law up to date, leads to a process of attrition by which the work of the author is reduced to a mere nucleus round which the accretions of successive editors are grouped. In this way form and proportion are lost, no less than the distinctive style which has commended an author to his own generation. Our Scottish text-books have suffered greatly in this way. The work of Mr Benjamin embodied in such a peculiar degree the mind and character of the author that it has probably lost more than most by the processes to which we have alluded. In the present edition the work has grown to a bulky volume of more than 1200 pages. It does credit alike to the learned editor and to the publishers. We think it unfortunate, however, that in the numerous references to Scots decisions, care has not always been taken by the editor to ascertain the correct way in which to cite the different series of Scots reports. The practical inconvenience of this has been reduced to a minimum by the insertion of the date in every case. Excess Profits Duty and Corporation Profits Tax. By J. Gault, Barrister-at-Law of the Middle Temple. 1921. London: Effingham Wilson. Whether the E.P.D. is to come to an end as soon as its opponents hope, or is to live, like For threatened men, to a more advanced age, it has already given rise to a large number of important legal questions. There is ample justification for the publication of an exhaustive discussion on the incidence of the duty in the light of the decisions which the Courts have reached. this useful work many a busy lawyer will thank the author of this volume. Not the least valuable part of Mr Gault's labours is the summary, which he publishes in an appendix, of all the cases on excess profits duty which have been decided by the Supreme Courts of England, Scotland, and Ireland. JOINT-STOCK COMPANIES IN SCOTLAND. The following joint-stock companies have been registered in Scotland for week ending 21st January:- 11577.-Fraser & Wilson, Ltd., Dumfries (private com pany), to take over the business of Fraser & Wilson, clothing manufacturers and woollen merchants in Queen Street, Dumfries. Capital-£25,000 in £1 shares. 11578.-The North British Tyre and Accessory Co. Ltd., 1 Diamond Street, Aberdeen (private company), to acquire the business of motor factor and agent for the sale of motor tyres, oils, accessories, etc., from Alexander Innes Milne, 34 Bridge Street, Aberdeen. Capital-£2000 in £1 shares. 11579.-The Aberdeen Argyle Football Club Ltd., 57 Crown Street, Aberdeen (private company), to promote the practice and play of football, cricket, lacrosse, lawn tennis, Capital-£1000 in £1 shares. hockey, bowls, etc. 11580.-Dunfermline Athletic Football Club Ltd. (private company), to take over the Dunfermline Athletic Football Club. Capital-£2000 in £1 shares. Subscribers-Wm. Whyte, secretary, 27 Halbeath Road, Dunfermline; John Cousin, painter, 44 Canmore Street, Dunfermline; and Alex. Mitchell, joiner, 30 Maygate, Dunfermline. 11582. The Scottish Electric Lamp Repairing Co. Ltd., company), to enter into an agreement with the Allies' Electric Abercorn Lamp Works, Niddry Street, Paisley (private Lamp Repairing Co. Ltd., regarding a certain licence granted to them, certain patents, and certain machinery and appliances. Capital-£15,000 in £1 shares. 11581.-Royston Soaps Ltd., 11 Stafford Street, Edinburgh, to carry on business as soap boilers and manufacturers, and candle makers, etc. Capital £20,000 in £1 shares. Among the subscribers are the following:-J. F. Tocher, analyst, Aberdeen; C. H. Thatcher, F.R.C.S., Milnthorpe, Gullane; John Marshall, farmer, North Queensferry; A. G. Brown, engineer, St Margaret's, Wardie Crescent, Edinburgh; Edward Ferry, contractor, 38 Inverleith Gardens, Edinburgh; and John Mackenzie, solicitor, 23 Rutland Square, Edinburgh. Correction. Street, Glasgow (private company), to take over the business of motor suppliers and accessories merchants. Capital— £15,000 in £1 shares. 11573.-Brown's Motor Accessories Ltd., 18 Bothwell EDITORIAL NOTE.-The Editor will be pleased to consider Articles on Legal Subjects and will welcome any suggestions from Subscribers which will serve to make the S. L. T. more useful to the Bar or Profession. CHARLES H. BROWN, Esq., K.C., VICE-DEAN OF THE FACULTY OF ADVOCATES. pleading. In politics he is a Unionist, and throughout his career has helped to further the cause of Unionism both by public speaking and general political work. At home as well as outside Mr Brown is of an exceedingly happy disposition, possessing a fund It is with much pleasure that we learn that Mr Charles H. Brown, K.C., has been unanimously appointed Vice-Dean of the Faculty of Advocates by his brethren at the Parliament of humour and a delicacy of transmitting his House. Mr Brown, who has had a distinguished career at the Bar, was born in Glasgow in 1868. He started his education at a private school in London, afterwards going to Rossall College. Between 1886 and 1893 he studied at the Glasgow University and qualified M.A. and LL.B. there, at the same time serving his apprenticeship in the office of Messrs Roberton, Low, Roberton & Cross. In 1894 he was called to the Scottish Bar, where he readily shewed those attributes of character and manner by which he endears himself to his many friends. After serving on a number of committees of the Faculty, and for a period as a reporter for the "Scots Law Times," he gradually amassed a large junior practice, which, in the capable hands of such an excellent lawyer as himself, soon brought him into prominence. From February 1917 to 1919 he acted as Advocate-Depute. Mr Brown took silk in 1919 and has quickly added to that honour the greater honour of being elected to the office of Vice-Dean, a position to which he has attained not only through the confidence which is placed in him by his brethren to carry out his new duties with ability, but also owing to his special gift of clearness and attractiveness as a pleader. Mr Brown is a talented lawyer who never fails to interest the judges before whom he is joviality to his neighbours in a way which few can equal. In his spare time he has a predilection for travel, the gratification of which has added to his broadmindedness and kindliness of heart. annual general meeting of the Society was held on Wednesday in the Society's hall, 27 Queen Street, Edinburgh. The following office bearers were elected: President - Mr James M'Kerrell Brown; Secretary and Treasurer-Mr L. B. Bell; Law Agent- Professor John L. Mounsey; Auditor Mr Edward Boyd. The following were elected members of the Council: Messrs James Ivory, Alex. Mac Kelvie, Kenneth M. Gourlay, W. P. Scott, Fred Marshall, T. P. Laird, J. G. Patterson, Alex. Morrison, T. Bennet Clark, John M. Howden, G. Addison Scott, and D. A. Clapperton. Messrs F. W. Carter, A. W. Robertson Durham, J. Row Fogo, Wm. Annan, and Alex. MacKelvie were elected the Society's representatives on the General Examining Board of the three Scottish Chartered Accountant Societies, together with the president, who is a member ex officio. MR GEORGE P. MUNRO, who had been acting as Auditor of the Court of Session during Mr J. Smith Clark's illness, was yesterday appointed interim Auditor on Mr Clark's death. e ARREST OF SHIPS AND ACTIONES IN to his judgment that the writer is indebted for REM IN SCOTLAND. By J. O. TAYLOR, Esq., M.A., LL.B., Advocate. (Continued from p. 20.) Passing to the discussion of the few concrete points mentioned at the beginning of this article, these are: (1) Is it necessary, before raising an action of arrestment and sale of a ship, to make a separate and preliminary application for warrant to arrest? As already noted, there is nothing in the English Admiralty practice to justify such a view. In our own practice the history of the matter seems to be as follows: When the Admiralty Court was in existence in Scotland, it was necessary, when arrestment of a ship was to be made, proceeding upon an extract registered protest, or on a horning, i.e. acts of the Court of Session, that the concurrence of the Judge Admiral should be obtained (Smith's "Maritime Practice," p. 59). All this is now unnecessary, because the whole powers of the Admiralty Court were transferred to the Court of Session and the Sheriff Courts in 1830, and any decrees or warrants by them have the same effect as decrees or warrants by the Judge Admiral. It is thought however that where warrant to dismantle on the dependence is required in addition, it is desirable to make a special application in the Bill Chamber, although it is not beyond doubt whether this is absolutely necessary, except in cases where the warrant in the summons does not give permission to dismantle. In any case, in 1853, after a considered judgment, the Second Division held that the ordinary warrant to arrest a ship contained in the Summons was sufficient, without any concurrence by the Lord Ordinary on the Bills ("The Jane Clark"-Clark v. Loos, 15 D. 750). In "The Julia Lingley "-Inglis & Bow v. Smith & Aikman (5 M. 320), when a warrant was obtained from the Lord Ordinary on the Bills, warrant to dismantle was required. In Morison & Miln v. Massa (5 M. 130), the warrant upon which the ship was arrested was one contained, in the summons. In Lucovich, Petr. (12 R. 1090), an application for warrant to arrest was held by the Second Division to be competent in the circumstances. This, however, is very far from saying that it was a necessary preliminary in all cases. There were reasons for the grant-(1) there was no summons ready and it was feared that the ship would sail, and (2) warrant to dismantle was asked. In "The Magdala"-English's Coasting and Shipping Co. Ltd. v. The British Finance Co. Ltd. (14 R. 220), the Lord Ordinary (Lord Fraser) expressed very strong views agreeing with the decision in Clark v. Loos (supra). It is the above history of the early procedure. His Lordship further said: "It has no doubt been the practice for a considerable time back to apply for the sanction or approval of the Lord Ordinary on the Bills, but this has arisen from misapplication of an old practice. . . . . Now what the Judge Admiral's precept could do, without concurrence from anyone, the Court of Session, which has got all the Judge Admiral's powers, can also do. The Court of Session can issue all writs in the same way and manner as the former Admiralty Court could do, and there seems to be no good reason why the conclusions of a summons should not be as extensive in the Court of Session-now the Admiralty Court-as they were in the former Admiralty summonses or precepts, that is, containing a warrant both to arrest and dismantle." So the law stood until 1913. In that year, however, the practice was again rendered doubtful by certain remarks of Lord Dunedin in The Clan Line Steamers Ltd. v. Earl of Douglas Steamship Co. Ltd. (1913 S.C. 967 at 973), who observed, although admitting that arrestment of a ship on the dependence is perfectly valid, that he thought that arrestment of a ship in order to work out a maritime lien would have to be done by special application in the Bill Chamber. Lordship quotes as authority Lucovich, Petr. (supra), which as we have seen is special, and purely permissive, but he does not appear to have had his attention drawn to either "The Jane Clark" or "The Magdala." Following upon this case, other reported examples of preliminary applications are M'Connachie, Petr. (1914 S.C. 853), and Ellerman's Wilson Lines Ltd., Petrs. (supra), 1920. In the former case the applicant was the holder of a promissory note, the term of payment of which had not arrived, and he was not in a position to bring an action, but feared that his lien might be defeated by the vessel's departure. The Lord Ordinary on the Bills on the ground that no such application had ever been granted in the Bill Chamber, reported the case to the First Division, who were of opinion that it might competently be granted in the circumstances. His No expression of opinion was made on the question whether such an application was a necessary preliminary to an action. In the latter case, reported on a question of expenses, Lord Blackburn's report to the Second Division bore that it was an application for warrant to arrest, which was required as a preliminary to an actio in rem, and that the warrant had been granted. In argument on a question of the expenses of a bail bond, it was stated, the above observation of Lord Dunedin in the Clan Line case being cited, that this preliminary application was appropriate, arrestment on the dependence being unsuitable in an action of this sort. It was also stated that an actio in rem was always preceded by arrestment in England (which does not appear to be the case according to the rules of Court). Nothing was said by their Lordships in the Division either confirming or denying these propositions. So far then as the decisions shew, there are two authoritative judgments to the effect that no preliminary application is necessary, as against several merely permissive judgments and one observation which was made without reference to these two standing decisions. It is submitted, therefore, that the question stated is to be answered in the negative. None the less the position of practice is very unsatisfactory. A short and simple rule of Court would set many doubts at rest. (2) Is it competent to direct an action against the master of a ship as representing foreign owners, and if so is it necessary to arrest the ship ad fundandam jurisdictionem? Both branches of this question have been put beyond doubt by the decision in "The Ghilino" -Morison & Miln v. Massa (1866, 5 M. 130). This action was brought against Massa "as master and also as owner or part owner of said ship, or in these capacities or one or other of them, or otherwise representing the said ship." It was, however, made clear, and admitted that Massa was neither owner nor part owner. The Court, however, sustained the jurisdiction against him as representing his owners. Arrest ment ad fundandam jurisdictionem had been used, for the master had only been a few days in the country. As Lord Curriebill explains, however (p. 137), if the master had been resident for more than forty days, such arrestment would have been unnecessary, there being jurisdiction ratione domicilii. This case is quoted with approval in the text-books. It has never been questioned or overruled. In another case in the same volume-"The Emily and Jessie "-Pirie & Sons v. Warden (1867, 5 M. 497)-jurisdiction was held to exist against a master as representing English owners. There was no arrestment to found jurisdiction, and none was held to be necessary. Here the master was held to be subject to the jurisdiction in virtue of personal citation in the locus contractus. (3) What is an actio in rem in Scotland, and what are its essential requirements? The first comment is that there has neither been prescribed nor even judicially approved, a form of action against a ship, identifiable by the nomen juris of actio in rem. The action of arrestment and sale we have seen to be used indifferently either to vindicate a real right in the ship such as pertains to a maritime lien, or simply to afford to an ordinary creditor a means of working out his decree against the owners, by what is really only an ordinary diligence against their property. The second remark which falls to be made is, that if it is desired to have a proper actio in rem in the Scottish Courts, its theory and principle should be worked out and it should be regulated by rules setting forth its essential requirements. It is not seemly that in adapting an old Scottish form of action to an actio in rem, Scottish practitioners should have to go to rules of the English Courts in order to find out how the different steps are carried out there. These rules, moreover, cannot have authority north of the Border, although the actual law of general maritime matters is common to both countries. The summons referred to at the beginning of this article was declared to be inept as an actio in rem, because there was not a general summons of "all parties interested." It is true that this is the form of the English writ of summons, but there is no rule or precedent in Scottish practice requiring such an instance. In the "Pole Star" case the summons did contain such a general instance. Not so in the "Abbey Holme" case. There certain known parties were called as defenders nominatim, but the instance was not exhaustive, and to this extent it failed to satisfy the requirements of the English actio in rem. It also proceeded to a judicial termination, and is at least as good a precedent as the "Pole Star" summons. Which is to be preferred? The present law of Scottish procedure affords no answer, and the practitioner is left to an unaided choice upon which to peril his action. If the summons referred to did not satisfy requirements as shewn in either of these cases, it did at least satisfy those of the Taylor v. Williamson class and was therefore a competent form of action. With a view to the proper working out of the theory of the actio in rem, and its embodiment in a code of rules, the following propositions may be stated on the essential requirements of such an action: (1) The action should be directed against the ship, not against particular persons. (2) The decree obtained is to be one against the world, not merely against owners, etc. (3) All parties interested should, so far as practicable, be notified-somehow. To this end a general call of defenders which is not nominatim, and upon which no effective citation can proceed, is useless, but some form of intimation, whether by edictal citation, advertisement, or otherwise, might be made. It would appear to be amply sufficient to serve upon the master, whose duty it is to report to his owners any undue happenings to the ship, a duty easily performed in these days of telegraphs and cables. This is supplemented, as now, by advertisement before sale, and again before distribution of the proceeds. The institution of a system by which the arrest of a ship would be notified as a shipping casualty might also be considered. (4) The ship should be declared under jurisdiction and kept there by one simple act of arrest-understood to be distinct in kind from the various other arrestments and not confused |