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Court and are so constructed that no person seated further back than the second row can either hear or see the accused, the witnesses, the counsel, the jury, the judge, or any of those engaged in conducting the proceedings in the Court below. All the other rows of seats are quite useless for any purpose connected with the open administration of justice. The police have found in practice that if the public are permitted to occupy the seats in the back rows of the galleries disorder is caused by the people in the back seats standing up and stretching over to try to obtain a view of the Court."
This passage would be spoilt by commenting on it.
Letters to the Editor.
EDINBURGH, 26th June 1924.
The Bank of England. The letter from Mr Duncan of Aberdeen in your issue of 21st inst. referring to the cases of Wyse and Darling is interesting, as shewing the attitude of many practitioners prior to the passing of the Act of 1921. They frequently insisted upon getting the signatures of all the trustees in a trust even in onerous transactions, not feeling able to act on the plain meaning of the word "6 quorum.' The case of Wyse has been cited to me off and on for the last thirty years, and no doubt it was a bit of a bugbear. But it was really pressed much further than the venerable judge, whose opinion is quoted, ever intended, its circumstances were so special.
The Trust Act of 1921 came, I think, rather suddenly upon the profession, as, on its appearance, I did not recall having seen its provisions previously discussed. But it contained some welcome sections, especially section 7. When I read this I felt that the case of Wyse and all the quibbles it unintentionally aided and abetted had gone. Mr Duncan has, of course, read the section; but it is so splendidly comprehensive that it is worth a brief analysis. It runs :
Any deed bearing to be granted by the trustees under any trust and in fact executed by a quorum of such trustees in favour of any person (other than a beneficiary or a co-trustee under the trust) where such person has dealt onerously and in good faith shall not be void or challengeable on the ground that any trustee or trustees under the
(a) was or were not consulted in the matter, or
(b) was or were not present at any
on the ground of any other omission
All these subdivisions a, b, and c (which are my own for the sake of clearness) down to and including the last clause strike at the pronouncement in Wyse's case, the ipsissima verba even of that troublesome case being adopted for practical subversion.
Two other important paragraphs follow, the one, inter alia, declaring that the section is to apply to deeds granted before as well as after the Act, and the other emphasising the meaning of " quorum."
In one case since 1921, I proposed, as the only trustee in this country (my co-trustee being abroad), to execute a deed without troubling him-the trust deed empowering a single trustee to act in the absence of the otherand Wyse's case was again trotted out. A reference, however, to section 7 settled the matter. It is a valuable section, and gives a much-needed relief to the profession.
In the same number of the "S.L.T. a satisfaction-if I may be permitted to say so-to find the Second Division of the Court in the case of Cunningham, p. 502, holding
that War Stock was Imperial and British and not English as distinct from Scots, that the bank (i.e. the Bank of England) was merely a cashier, and that the lex domicilii regulated the succession to the stock."
Now why should a cashier (I would not have dared use the expression) not be required to give effect to our plain Statute Law, which enacts that any onerous deed in any trust not in favour of a beneficiary or co-trustee shall not be challengeable if executed by a quorum of the trustees?
D. M. G.
18th June 1924.
Surrender of Shares in Limited Companies. The profession will, I think, be indebted to the contributor of the article in your issue of 7th inst. on this subject. I had myself, with some diffidence, given a similar opinion to the directors of a limited company some weeks ago, and I was glad to have the confirmation afforded by the article.
To complete the reference to authorities bear
ing on the subject may I add Lord M'Laren's opinion in Gill v. Arizona Copper Co. Ltd. (1900, 2 F. 843)? In that case the company intimated certain claims against the vendors which were not admitted, but an arrangement was come to whereby the vendors surrendered to the company the whole of the deferred shares held by them for behoof of the preferred shareholders.
In a dispute between the company and the preference shareholders it was maintained by the company that the effect of the transfer to the company was equivalent to a surrender of the shares to the company as a whole, and not for the benefit of the preferred shareholders; and, alternatively, that if it was for the benefit of the preferred shareholders, the transaction was illegal on the ground that the company could not hold its own shares. The Court held that the shares in question were held in trust for the preferred shareholders.
Lord M'Laren's opinion contains the following passage: "Now, it is plain enough that a transfer of fully paid shares in a company to the company itself or its nominees does not, in fact, diminish the capital of the company available for distribution among its creditors, because, according to the hypothesis, the shares only represent a claim upon the income of the company, and the holders of the shares are not liable to be made contributories in liquidation. I therefore cannot hold that the judgments in Trevor v. Whitworth and the other cases cited have any application to the case of a transfer of fully paid shares. There may be a theoretical difficulty as to a company holding fully paid shares in its own name; and in the case of an unqualified transfer perhaps the correct view would be that the shares are extinguished, as in the case of a transfer by an insolvent
By the last observation I take it that his Lordship means the shares are "extinguished as issued shares, but not cancelled; since, as your contributor points out, the effect of surrender is merely to change an issued share into an unissued share.
trial at these sittings, agents are referred to the Codifying Act of Sederunt, Book F, chapter i., section 5. A copy of the Lord Ordinary's interlocutor allowing the trial to proceed at the sittings, along with a print of the closed record and of the adjusted issue or issues, must be handed to the Keeper of the Rolls of the Division in which the cause is to be tried, and that not later than twelve o'clock noon on Tuesday, 1st July, otherwise the cause will not be taken at the sittings.
Note. With regard to the transmission of causes for
NORTH.-The Right Hon. the Lord JusticeI think the decision in the Arizona case and Clerk and The Right Hon. Lord Murray. the paragraph in Lord M'Laren's judgment Perth-Tuesday, 2nd September, at 10.30. quite support the views of your contributor, Pleading Diet-Saturday, 23rd August. Service and I agree with him that there has been some-Saturday, 16th August. Dundee-Tuesday, confusion in other cases between reduction of capital and reduction of issued capital. Your article, if carefully studied, will encourage practitioners to carry out schemes of the nature indicated without the expense of Court proceedings. Yours truly,
23rd September, at 10.30. Pleading DietSaturday, 13th September. Service-Saturday 6th September. Inverness-Tuesday, September, at 10.30. Pleading Diet Saturday 20th September. Service-Saturday, 13th September. Aberdeen-Tuesday, 7th October, at 10.30. Pleading Diet - Saturday, 27th September. Service-Saturday, 20th September. Alexander Maitland, Esq., AdvocateDepute; Messrs Alexander Rae and V. S. M. Marshall, Clerks.
WEST.-The Hon. Lord Skerrington and The Hon. Lord Constable. Inveraray-Thursday, 24th July, at 10.30. Pleading Diet Monday, 14th July. Service, Monday, 7th July.
DECISIONS IN THE ENGLISH
Stirling-Tuesday, 5th August, at 10.30. British Thomson-Houston Company Limited v.
Pleading Diet Saturday, 26th July. Service -Saturday, 19th July. Glasgow-Tuesday, 9th September, at 10.30. Pleading DietSaturday, 30th August. Service-Saturday, 23rd August. J. M. Hunter, Esq., AdvocateDepute; Messrs Alexander Rae and V. S. M. Marshall, Clerks.
British Insulated and Helsby Cables Limited.
EVIDENCE-ADMISSIBILITY-USE OF EVIDENCE
IN A PREVIOUS ACTION AGAINST ANOTHER
TENTION.-In 1916 the plaintiffs raised an action against Duram Ltd. for infringement of In that action they led evidence to SOUTH.-The Hon. Lord Ormidale and The patent. Hon. Lord Ashmore. Jedburgh-Thursday, could be obtained by following the directions prove that a filament of drawn tungsten wire 24th July, at 10.30. Pleading Diet Monday, of a specification contained in a patent belonging 14th July. Service-Monday, 7th July. Ayr to them dated 1906. The case was appealed to Tuesday, 19th August, at 10.30. Pleading the House of Lords, and the evidence in question Diet Saturday, 9th August. Service-Saturday, 2nd August. Dumfries-Tuesday, 26th In the present case the plaintiffs put forward the was embodied in the case lodged by the plaintiffs. August, at 10.30. Pleading Diet Saturday, contention that the 1906 patent was unworkable, 16th August. Service-Saturday, 9th August. and led evidence of experts, other than those A. C. Black, Esq., Advocate-Depute; Messrs called in the former case, to prove this. The Alexander Rae and V. S. M. Marshall, Clerks. defendants claimed to treat the statements of the experts in the Duram case as admissions of the plaintiffs themselves. Russell J. refused to admit the evidence, and the defendants appealed against his decision. Held (dissenting Sargant L.J.) that the evidence of third parties used in a trial by a party in proof of any fact was not admissible in proof of such fact against that party in any subsequent suit in which he was a litigant. Decision of Russell J. ( 1 Ch. 203) affirmed.-Court of Appeal (Sir Ernest Pollock M.R., Atkin and Sargant L.JJ.).
EXTRACT FROM CUSTOMS AND EXCISE (ADAPTA-
Section 9. Every provision contained in any
(a) the endorsement and execution in Ireland of warrants issued by justices,-7th April 1924. Courts, or judges of Courts in England, Scotland, the Channel Islands, or the Isle of Man; and
(b) the service in Ireland of writs of subpoena of Superior Courts in England or Scotland, and to the punishment in Ireland of persons disobeying the same; shall apply respectively to:
(I.) The endorsement and execution in Saorstát Éireann of warrants issued by justices, Courts, or judges of Courts in England, Scotland, Northern Ireland, the Channel Islands, and the Isle of Man ; and
(II.) The service in Saorstát Éireann of writs of subpoena of Superior Courts in England, Scotland, and Northern Ireland, and to the punishment in Saorstát Éireann of persons disobeying the same;
And every such warrant and writ of subpoena shall, in Saorstát Éireann, have the like effect and shall be dealt with in like manner as if it had originated in Saorstát Éireann.
This 15th day of March 1924.
Gayler & Pope Limited v. B. Davies & Son
DAMAGE ΤΟ PREMISES ADJOINING
plaintiffs carried on business as drapers,
in River Wear Commissioners v. Adamson (2 App. Cas. 743 at p. 767), that the owner of horses and cattle which have done damage
to property adjoining a highway along which they were being lawfully driven could only be liable on proof of negligence and not merely on proof of trespass; and (2) that in the present case the proof of the facts averred constituted a prima facie case of negligence on the part of the defendants.-K.B. Div. (M'Cardie J.).—11th April 1924.
Wing v. Dent Main Colliery Co. Ltd.
OFFENCE-COAL MINES-PROCEEDINGS AGAINST OWNERS AND
MANAGER OF A MINE-MANAGER ACCEPTING RESPONSIBILITY DISMISSAL OF COMPLAINT
AGAINST OWNERS COAL MINES ACT, 1911 (1 & 2 GEO. V. CAP. 50), SECTIONS, 44, 68, 101, and 102.-The appellant preferred two informations against the respondents under the Coal Mines Act, 1911. The alleged offences related to (1) the absence of sufficient refuge holes in the mine, and (2) the absence of a bore-hole. Two separate informations for the same offences were laid against the manager, who undertook full responsibility. Accordingly the justices imposed what they considered an adequate penalty on the manager, and dismissed the case against the respondent company. Held that the justices were bound to convict the owners.-K.B. Div. (Lord Hewart C.J., Shearman and Roche JJ.).—2nd May 1923.
HIGHWAYS ACT, 1896 (59 & 60 VICT. CAP. 36), SECTION 1 (1) (B).—This was an appeal on a stated case from the justices of the County of Norfolk. William Dennis had been charged under sections 13 and 15 of the Railway Passenger Duty Act, 1842, on the ground that "being the driver of a certain stage carriage, to wit a motor omnibus employed as a public stage carriage for the purpose of conveying "" he did passengers for hire " and convey on or about the said carriage more passengers than the said carriage was constructed to carry or the number allowed for that purpose by the statute." The justices dismissed the case, being of opinion that the Norfolk County Council having failed to make bye-laws under the Town Police Clauses Acts had no control over the number of passengers permitted to be carried in the said omnibus. Held that upon the day in question the motor omnibus was a light locomotive used as a stage
carriage, and was therefore within the meaning of the Railway Passenger Duty Act, 1842, and that the justices were wrong in dismissing the case.-K.B. Div. (Lord Hewart, C.J., Shearman and Roche, J.J.).-2nd May 1924.
Official Receiver and Liquidator of Jubilee Cotton Mills, Ltd. v. Lewis.
PROMOTER SECRET PROFITS
COMPANIES (CONSOLIDATION) ACT, 1908 (8 Edw. VII. CAP. 69), SECTION 82 (1).—The promoter of a company received an allotment of debentures and shares, made in contravention of section 82 (1) of the Companies Act, 1908, which forbids allotment before a prospectus has been issued or a statement in lieu thereof has been filed. Held that he was liable to the company for the amount of any secret profit made by him on the sale by him of the shares which he took.House of Lords (Earl of Birkenhead, Viscount Finlay, Lords Dunedin, Sumner, and Carson).— 9th May 1924.
Attorney General v. Valentine and Others. REVENUE-ENTERTAINMENTS' DUTY-CLUBRIGHT ΤΟ ATTEND POLO MATCHES-FINANCE (NEW DUTIES) ACT, 1916 (6 GEO. V. cap. 11), SECTION 1.-The members of the Hurlingham Club had, in addition to certain club privileges, the right to attend polo matches, and tennis, and other tournaments provided by the club. This action was brought against the trustees of the club for payment of entertainments' duty on the subscriptions of members. Held that a proportion of the subscriptions and entrance fees of members of the club was chargeable with entertainments' duty.-K.B. Div. (Rowlatt J.). -14th May 1924.
CURRENT LAW LITERATURE.
Notes on English Law as differing from Scots Law with special reference to questions on Commercial Law and Accountancy Practice. By Hector Burn Murdoch. W. Green & Son. Price 10s. 6d.
The Government of France. By Joseph Barthélemy, authorised translation by J. Bayard Morris. George Allen & Unwin, Ltd. Price 68.
Technical Costs and Estimates as applied to many different Industries, with forty-three Specimen and Explanatory Forms. By Andrew Miller, Company Secretary, Fellow of the Institute of Costs and Works Accountants. Gee & Co. Price 10s. 6d. net. (Publishers) Ltd.
The Minnesota Law Review. June, 1924. Law School of the University of Minnesota.
Price 60 cents.
By WM. YEAMAN.
The trend of the times is towards relieving land in Scotland from the burdens with which it is at present affected, and in 1914 the legislature took a step in this direction by passing the Feudal Casualties (Scotland) Act. It enacted that the casualties incident to any feu
created prior to the commencement of the Act (1st January 1915) should be redeemable at the instance of either the superior or the proprietor of such feu at any time within the period of fifteen years from and after such commencement, and provided machinery for the purpose. Since 1915, so far as regards lands held of the Crown, the Crown receiver has been issuing notices to vassals requiring them to redeem the casualties exigible in respect of the Crown's estate of superiority in various lands throughout the country. These notices have been sent, not only to owners of lands who pay feuduties to the Crown, but also to owners who, although they hold their estates of the Crown, as their charters shew, pay the feu-duties stipulated for in the Crown charters to certain donatories of the Crown. There are two kinds
of Crown donatories, viz. lords of erection and the institution known as the Deans of the Chapel Royal. They were both created many centuries ago and both still exist. Their creations are matters of interest in the history of Scotland, and in this article it is proposed to explain their origin.
I. LORDS OF ERECTION.
At the time of the Reformation in 1560, it was computed that a fourth part of the territory of Scotland was the property of the Church, in the administration and cultivation of which, by means of feus, rental rights, and kindly tenantry, the early agriculture of Scotland was chiefly promoted. After the Reformation, when all monasteries were suppressed, their whole benefices reverted to the king, jure coronæ. The king donated or gifted | the most part of these beneficies, both spirituality and temporality, to the nobility and gentry of the kingdom, presumably as rewards for loyalty to the throne, and secularised or erected the same into temporal baronies and lordships. The grantees of these temporal lordships were called lords of erection, not because they belonged to the order of nobility, but merely because they were feudal lords. In the beginning of the seventeenth century the lords of erection resigned or gave back their superiorities to the Crown, with the exception of the feu-duties, which the Crown reserved power to redeem. This right of
redemption, however, was renounced in the Act 1707, cap. 11, passed on the eve of the Union, so that the feu-duties might remain erection and those acquiring right from them. irredeemably and for ever with the lords of In the meantime, after the last suppression of Episcopacy, an Act was passed, 1690, cap. 29, which annexed the superiorities of all lands formerly held of the dignified clergy or any beneficed person to the Crown, and made it between the Crown and the vassals in these unlawful to interpose any other superior lands. It thus came to pass that the vassals in ecclesiastical grants held blench immediately of the Crown, but under the burden of payment of their feu-duties to the lords of erection. By this means a statutory burden or ground-annual was created in favour of persons who were not the superiors of the through, and retains the compensation payable properties. Accordingly the Crown carries for the redemption of, the casualties in virtue
of the Feudal Casualties Act.
II. DEANS OF THE CHAPEL ROYAL.
The foundation of the institution requires to be explained at greater length than in the case of the creation of lords of erection. Like feu-duties out of lands held of the Crown, but lords of erection the deans draw and retain been paid to the Crown as superiors, and the the casualties from these lands have always Crown carries through, and claims the compensation payable in respect of, the redemption of the casualties.
The history of the Chapel Royal of Scotland was compiled by the Rev. Charles Rogers, D.D., LL.D., and published in 1882. This article only professes to deal with that portion of the history to which it is necessary to advert in order to explain (1) the grants of lands, the feu-duties from which form part of the revenues of the Chapel Royal, and the casualties from which, and the redemption prices of future casualties, belong to the Crown; and (2) how these feu-duties came to be enjoyed by the donatories of the present day, who still retain the designation Deans of the Chapel Royal."
The institution known as the Deans of the Chapel Royal is of a very special and exceptional character. It has subsisted without interruption through the successive political and ecclesiastical changes that have taken place since its original foundation. It owes its inception to the love of music implanted in King James III., a trait which he inherited from his grandfather, James I., who, it is handed down, played on all musical instruments and could, in singing, compete with the best vocalists