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ACT OF SEDERUNT EXTENDING CERTAIN TEMPORARY ACTS OF SEDERUNT
THE Lords of Council and Session, considering that the causes which called for the
And the Lords appoint this Act to be entered in the Books of Sederunt, and to be
SCHEDULE REFERRED TO.
1. Act of Sederunt amending C.A.S., Book M, Chap. iii., anent Fees in Civil
2. Act of Sederunt amending C.A.S., Book M, Chap. v., section 2 and Schedule B,
3. Act of Sederunt amending C.A.S., Book M, Chap. v., section 1 and Schedule A,
4. Act of Sederunt amending C.A.S., Book A, Chap. ix., section 4, anent Fees
5. Act of Sederunt authorising a further temporary increase in Fees under C.A.S.,
7. Further amending C.A.S., Book M, Chap. v., section 1 and Schedule A, anent
DECISIONS IN THE ENGLISH
Imperial Tobacco Co. of India Ltd. v. Albert
Bowman and Bowman & Co.
business, good-will, and trade marks, outside their respective territories. Another company, the British American Tobacco Co. (India) Ltd., was subsequently incorporated to act as dis
TRADE MARK GOODS PURCHASED FROM MANU-tributors in India for the British American FACTURER-SALE IN COUNTRY TO WHICH MANUFACTURER OR HIS AGENT HAD PREVIOUSLY BEEN SOLE IMPORTER.-The respondent Bowman had purchased about twenty-one and a half millions of Gold Flake cigarettes, surplus stores sold by the British Army Canteen authorities. The sale was subject to the condition that the cigarettes should not be resold in the United Kingdom. Gold Flake cigarettes were originally manufactured by W. D. & H. O. Wills Ltd., whose business was absorbed in 1901 by the Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. In 1902 the latter company entered into an agreement with the American Tobacco Co., under which the American Tobacco Co. agreed to confine its trade to the United States and to certain islands, while the other company confined its trade to Great Britain and Ireland. The two companies further agreed to form a third company to be called the British American Tobacco Co. Ltd., which would confine its trade to the rest of the world not included in the territories of the other two companies. The British American Tobacco Co. was incorporated accordingly, and was assigned by the other two companies, their
Tobacco Co. Ltd. The British Canteen authorities had bought the cigarettes in question from the British American Tobacco Co. Ltd. The respondent Bowman, after purchasing the cigarettes, formed the respondent company, and the respondents shipped a large quantity of the cigarettes to India and offered them for sale there. There is no Trade Marks Act in India, and the case for the appellants, therefore, rested on the ordinary right of a trader to protect himself and to prevent other traders passing off their goods as his by availing themselves of his reputation. The action was dismissed by the High Court of Bengal. Held that there was nothing to prevent a tradesman acquiring goods from a manufacturer and selling them in competition with him, even in a country into which hitherto the manufacturer or his agent had been the sole importer, and that as the respondents were unhampered by covenant and were selling goods, which they represented to be what they in truth were, the appeal should be dismissed.-Judicial Committee of the Privy Council (Lords Phillimore, Blanesburgh, and Darling, Sir John Edge and Mr Ameer Ali).—13th May 1924.
THE LATE MR A. R. C. PITMAN, W.S., with his play. His temperament was not suited to any lessening of activity.
We regret to record the sudden death on 23rd July, in his sixty-sixth year, of Archibald Robert Craufurd Pitman, writer to the signet, Edinburgh. Born in 1858, the eldest son of the late Frederick Pitman, W.S., he was educated at Eton, and left school rather early in order to assist his father who was then head of the firm of Messrs J. &. F. Anderson, W.S., a business, at that time, rapidly increasing in extent. Mr Archibald Pitman
at the time of his death, in addition to being one of the senior partners of his
firm, was a directore
of the Union Bank of Scotland Ltd., the Standard Life Assurance Co., and
the Realisation. and Debenture
Corporation of Scotland Ltd., in all three of which he had served in that capacity for upwards of thirty years.
Although Mr Pitman had these
many interests in
the business world,
Photo by W. Crooke]
LAW AGENTS' EXAMINATIONS.
The following candidates have passed the Examination in Law which was held in Edinburgh on 14th, 15th, and 16th July, viz.: James Allan, Bonnyrigg; William Anderson, Edinburgh; James Scoular Blacklock, Dum
Logan, Lochwinnoch; John MacBean, Edin
he was first and foremost a family lawyer and | burgh; Allister M'Donald, M.A., LL.B., Glasadviser, his strict sense of justice, breadth of view, common sense, and sympathy making him, to borrow a phrase of a younger member of his profession, "the man one naturally went to when in doubt as to the right thing to do."
Mr Pitman in his leisure time was a great walker and a keen sportsman and golfer. He was a past captain of the Honourable Company of Edinburgh Golfers.
His death came as he would have wished it, suddenly and without pain, after a full life and before old age had had an opportunity of interfering with his work or, to any great extent,
gow; James M'Kechnie, Glasgow; Ian Donald
MR F. J. M'CLUSKEY (late of Charles Byrne, Esq., K.S.G., J.P., solicitor, Glasgow), intimates that he has now commenced business on his own account at 6 Union Street, Glasgow.
THE AIR AND THE LAW.
By JOHN CAMERON, LL.B., Advocate.
The maxim cuius est solum eius est usque ad cœlum is one which is embedded deeply in the law of Scotland. It has been sanctified by the institutional writers and approved by judicial decision.1 It is construed as meaning that the rights of the owner of the solum are unlimited in a vertical direction in the air-space above his property, or, in other words, that in this indefinite column in the air-space the owner of the subjacent solum has full and absolute proprietary right. The logical conclusion of this theory is that any interference by any other party or agency within this column of air-space, e.g. by the flight of air-craft or the transmission of wireless signals, is an invasion of the proprietary right of the owner of the solum, and that, consequently, an action of interdict will lie at his instance in respect of such interference. So strict and rigorous an interpretation clearly
conflicts with the needs and conditions of the present day. Aerial navigation and also, and in a greater degree, the recent great increase in wireless activity have made problems of aerial law no longer of merely academic interest but of immediate and peremptory practical importance. Briefly stated, the fundamental difficulty is the adequate safeguarding of the rights of the private owner of the solum without at the same time interfering unduly with the freedom of public uses of the air-space.
It is now generally admitted that this maxim finds no place in the text of the Civil Law, and, while its precise origin is unknown, it has been traced by the late Professor Goudy to the Glossators of the twelfth and thirteenth centuries.2 These laborious scholiasts are responsible for not a few anomalous excrescences upon the otherwise symmetrical edifice of the Jus Civile. It is in the Accursian gloss that this maxim makes its bow, and as Accursius flourished c. 1260 A.D. it is not surprising that no trace of the doctrine appears in the great work of Glanvil or its Scots equivalent the Regiam Majestatem. Far from adopting the principle of absolute private ownership of the air-space, the Civil Law appears to have adopted what is generally termed the "zone theory" of aerial rights. By this theory the air-space is divided into horizontal belts capable of ownership by different parties. As a general rule, the air-space is regarded as divided into two such belts, the inferior or private and the superior or public.
That in the case of public lands and lands
extra commercium the Civil Law recognises absolute unlimited ownership of the air-space can scarcely be doubted. This view is confirmed by two frequently quoted passages in the Digest 1 (one stamped with the authority above public lands vested in the State and with of Paul), dealing respectively with the air-space tombs which, as being Res Sacræ, were therefore
extra commercium. The Civil Law thus ently recognised unlimited ownership of the airspace where the ownership of the` solum was public.
As to the right of private owners in the airspace above their property, Ulpian, in commenting on the 9th section of Table VII. of the XII. Tables,2 states unequivocally that this right of property was limited to a definite zone the solum, and that above this height the measuring 15 feet in a vertical direction above private owner had no right or title apart from any specially acquired by him. It should also the Civil Law was an action of interdict entitled be noted that one of the actions recognised by operis novi muntiatio, the object of which was to prevent the owner of an existing building from replacing it by one of greater height or of different type. Later legal development gave statutory recognition to this rule in the Basilica. It may be noticed here in passing that the suggestion has been made that the existence of this action solves the mystery of the
servitude altius tollendi.
From the passages cited it is not an unfair conclusion to that the Civil Law dealt with say the air-space, so far as it was called upon to deal with it, rather upon the "zone theory" than upon the theory of unrestricted vertical private ownership. Admittedly, in the Institutes 4 it is stated that "By the law of nature these things are common to mankind, the air, running water, "" But and, consequently, the shores of the sea. the air is a different thing from the air-space, and that this distinction was made by the Professor Goudy: 5 the relation of the air to the Roman jurists has been clearly pointed out by air-space containing it may be regarded as not river to its containing bed. unlike the relation of the running water of a
refused to be bound by the unrelieved rigour of Continental jurisprudence has to some extent the maxim. Thus the German Imperial Code of 1900 provides that "the right of the owner surface and to the substance of the earth of a piece of land extends to the space above the beneath the surface. The owner may not,
1 Dig., VIII. ii. 1; Dig., XLIII. xxiv. f. xxii. § 4. 2 Dig., XLIII. xxvii., esp. § 7.
3 Basilica, LVIII. tit. xi. De Aedificiis privatis. Inst., lib. II. i. 1.
Op. cit., pp. 231, 232.
6 German Imperial Code, 1900, sec. 905.
however, forbid interference which takes place at such a height or depth that he has no interest in its prevention." In the Swiss Civil Code 1 there is a not dissimilar provision by which in effect the rights of the owner of the solum in the air-space are limited by the necessities of his use of the solum.
In England the maxim makes its first definite appearance in reports of cases in the reign of Queen Elizabeth; 2 but though it is fortified by the approval of Coke and Blackstone, recent judicial interpretation, and especially the ruthless hand of the legislator, has shorn it of so much of its ancient vigour that to-day it remains little more than the mouldering shell of a medieval tradition. So long ago as 1815, Lord Ellenborough 3 declared his opinion that no suit quare clausum fregit would lie at the instance of the proprietor of the solum against an aeronaut passing over his land in a balloon. This dictum is distinctly subversive of the principle of absolute private ownership of the air-space, and although Lord Blackburn said "I understand the good sense of Lord Ellenborough's view, but not the legal reason for it," it has formed the basis of modern English legal development in this branch of the law. Scots Law has always recognised the necessity for flexibility in order to meet the exigencies of altered circumstances; this is illustrated by a dictum of Lord Cullen in a recent case. His Lordship there said with reference to an argument founded on the case of Galbreath v. Armour (4 Bell's App. 374): "I doubt its application to the case of the solum of a public street in burgh under present-day conceptions, which call for operations of many kinds in the solum in order to procure good sanitation and other conditions incident to the ordinary comfortable enjoyment of properties subserved by such operations."
1 Swiss Civil Code, sec. 667. 2 Croke, "Eliz.," 118. 3 Pickering v. Rudd, 1815, 4 Camp. 219; cf. also Fay v. Prentice, 1 C.B. 828; Battishill v. Reed, 18 C.B. 696. 4 Kenyon v. Hart, 6 B. & S. 249.
5 Donald & Sons v. Esslemont & Mackintosh, 1923 S.C. 122, at p. 141.
Wandsworth Board of Works v. United Telephone Co. Ltd., 1884, 13 Q.B.D. 904, at 913 and 915; Finchley Electric Light Co. v. Finchley Urban District Council, 1903, 1 Ch. 437.
or of the existence of an area of user. In the later Finchley case the Court of Appeal appears to have adopted a similar view. The important point in these cases is that the rights of the street authorities were so far as they went-absolute rights of property, full and complete within their statutory limits. But in spite of this, the street authorities did not, as might legitimately be expected, enjoy in common with the other parties having estates of property in the same ground joint-rights of property usque ad cælum in the air-space above. All that they were held to have acquired was an area of user in the air-space, determined in extent by the conditions of their use of the subjacent solum.
But the final blow at the doctrine of absolute ownership was only struck so recently as 1920. By the Air Navigation Act of that year,1 section 9 (1), it is provided that no action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of air-craft over any property at a height above the ground, which, having regard to the wind, weather, and all the circumstances of the case, is reasonable, or the ordinary incidents of such flight, so long as the provisions of this Act and any Order made thereunder
are duly complied with." This section it will be at once seen implies two things: first, the limitation of private property in the air-space to a belt of varying depth; and secondly, the recognition of the absolute freedom of public use and enjoyment of the upper belt of the air-space. The Act is a general and consolidating statute, and applies to Scotland as well as to England, so that it would appear that its provisions have made a very drastic and fundamental change in one of the basic principles of our law of heritable rights. In face of the 1920 Act it is suggested that it is impossible now to say that the maxim cuius est solum eius est usque ad cælum correctly summarises the law of the air. Thus the structure of medieval theory has crumbled before the pressure of modern circumstances.
While aerial navigation has been thus treated by legislation, no measure has as yet been passed to deal with wireless problems. Some general governing statute will be necessary to prevent the chaos that would inevitably result from leaving local authorities to deal with the matter. It is suggested that expediency demands that in any legislation that may be found necessary there should be adopted the principles implied in section 9 of the Air Navigation Act, the recognition of the limitation of private ownership of the air-space and the assertion of as free and complete public rights therein as is consistent with the adequate protection of the owner or occupier of the solum.
1 10 & 11 Geo. V. cap. 80.
THE LATE MR WILLIAM COVENTRY, S.S.C., EDINBURGH.
On Friday, 18th July 1924, there passed quietly over to the majority Mr William Coventry, S.S.C., in his sixtieth year, a partner in the old-established firm of Messrs Tods, Murray & Jamieson, W.S. Eighteen months ago he underwent a serious operation from
which he recovered, but his health again broke down in the beginning of this year, and he became gradually weaker until the end came peacefully.
Mr Coventry was born and educated in Dundee, and also served his apprenticeship there. He then came to Edinburgh and entered the well-known Chambers at "66." He was not long there until his unusual ability was recognised, and he was, while still a young man, put into a position of responsibility.
Conveyancers may be said to be born not made, and Mr Coventry was in every sense a born conveyancer. He had a particular knowledge of Scottish conveyancing law and practice. When confronted with the most complex problem in conveyancing law, he seemed instinctively to grasp the salient facts and to apply the correct legal principle. A methodical but quick worker, he could get through an immense amount of work with an accuracy and apparent ease which struck all with whom he had business relations. He was most conscientious and never scamped anything he had to do; his object was not merely to do his work effectively but artistically. As a man Mr Coventry was invariably of a kindly, cheerful, and courteous disposition, always ready to place at the disposal of his brother lawyers the best of his professional knowledge and experience. He had an eminently relevant and logical mind; and, as sometimes occurs in the lifetime of a busy lawyer, when he met someone who laboured a point removed from the issue under discussion, Mr Coventry had an incisive way of bringing the talk back to the business in hand. Many of his old assistants, who now occupy good positions throughout Scotland, gladly acknowledge that they owe their success in a great measure to the training which they received at his hands. His was a strong and kindly personality which will never be forgotten by those who had the privilege of knowing him.
Though leading such an arduous professional life, Mr Coventry's interests were not confined to his work. He took a great delight in literature, and there were few classics with which he was not familiar. Until the last year or two he was a keen angler, and was never happier than when following the gentle art in his beloved Isla.
THE LATE MR WILLIAM MURRAY,
prominent East Lothian solicitor in the person We regret to record the recent death of a of Mr William Murray, who was also agent of the Union Bank of Scotland at Haddington. About sixty years of age, Mr Murray had been in practice for upwards of thirty years. He Messrs Richardson & Gemmill, solicitors, and was sole partner of the well-known firm of conducted a branch business at North Berwick. and was recognised as an able and successful Mr Murray possessed a large Court practice, pleader. He also acted as clerk and treasurer to the Haddington District Board of Control, the Haddington Town Council. At the time was burgh Fiscal, and for a period a member of of his death he was a member of the Parish Council. He was a leading member of the local masonic lodge. He was secretary and treasurer to the local branch of the Farmers' Union, and his practical knowledge of the agricultural interests made him a valued official.
During the war Mr Murray was appointed administrator of the County Food Control Department, and in recognition of these services
he received the honour of M.B.E.
Education Authority for East Lothian, and Mr Murray was an active member of the for many years acted as Unionist agent for Scotland as editor of the "Factors' Magazine,' the county. He was well known throughout published by the Scottish Estate Factors' Society, of which he was a past-president. In addition to numerous articles, Mr Murray for the last twenty-four years contributed the series of legal notes to each issue. His services were in much request in connection with agricultural
College and Edinburgh University, leaves a Mr Murray, who was educated at Watson's widow, two daughters, and a son, who is now Gemmill.
associated with the business of Richardson &
The Editor will welcome legal problems or questions of interest from subscribers, and will, wherever possible, arrange for articles thereon by experts. Interesting points are continually cropping up in practice, and there is at present no means other than that now suggested whereby a lawyer in one part of Scotland may benefit at a saving of time and money from the experience of a lawyer in another part who has dealt with a similar problem.