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ACT OF SEDERUNT EXTENDING
TEMPORARY ACTS OF SEDERUNT
And the Lords appoint this Act to be entered in the Books of Sederunt, and to be
J. A. CLYDE, I.P.D.
Business fo Sheriff Officers in Scotland, dated 22nd October 1919.
anent Fees payable to Clerks of the Peace under the Licensing (Scotland)
Act, 1903, or otherwise, dated 19th November 1919.
anent Fees payable to Town-Clerks under the Licensing (Scotland) Acts,
1903, or otherwise, dated 26th February 1920.
payable to Messengers-at-Arms, dated 1st June 1920.
Book K, Chap. iv., and C.A.S., Book M, Chap. ii., dated 20th July 1920.
Schedule B, anent Fees payable to Clerks of the Peace under the Licensing
(Scotland) Act, 1903, or otherwise, dated 8th July 1921.
Fees payable to Town-Clerks under the Licensing (Scotland) Act, 1903,
J. A. CLYDE, I.P.D.
DECISIONS IN THE ENGLISH
business, good-will, and trade marks, outside COURTS.
their respective territories. Another company, Imperial Tobacco Co. of India Ltd. v. Albert the British American Tobacco Co. (India) Ltd., Bowman and Bowman & Co.
was subsequently incorporated to act as disTRADE MARK-GOODS PURCHASED FROM MANU- tributors in India for the British American FACTURER -SALE IN COUNTRY TO WHICH MANU- Tobacco Co. Ltd. The British Canteen authFACTURER OR HIS AGENT HAD PREVIOUSLY BEEN orities had bought the cigarettes in question SOLE IMPORTER.—The respondent Bowman had from the British American Tobacco Co. Ltd. purchased about twenty-one and a half millions The respondent Bowman, after purchasing the of Gold Flake cigarettes, surplus stores sold by cigarettes, formed the respondent company, the British Army Canteen authorities. The and the respondents shipped a large quantity sale was subject to the condition that the of the cigarettes to India and offered them for cigarettes should not be resold in the United sale there. There is no Trade Marks Act in Kingdom. " Gold Flake cigarettes were India, and the case for the appellants, therefore, originally manufactured by W. D. & H. O. rested on the ordinary right of a trader to Wills Ltd., whose business was absorbed in protect himself and to prevent other traders 1901 by the Imperial Tobacco Co. (of Great passing off their goods as his by availing themBritain and Ireland) Ltd. In 1902 the latter selves of his reputation. The action was company entered into an agreement with the dismissed by the High Court of Bengal. Held American Tobacco Co., under which the that there was nothing to prevent a tradesman American Tobacco Co. agreed to confine its acquiring goods from a manufacturer and selling trade to the United States and to certain islands, them in competition with him, even in a country while the other company confined its trade to into which hitherto the manufacturer or his Great Britain and Ireland. The two companies agent had been the sole importer, and that as further agreed to form a third company to be the respondents were unhampered by covecalled the British American Tobacco Co. Ltd., nant and were selling goods, which they reprewhich would confine its trade to the rest of the sented to be what they in truth were, the world not included in the territories of the other appeal should be dismissed.—Judicial Comtwo companies. The British American Tobacco mittee of the Privy Council (Lords Phillimore, Co. was incorporated accordingly, and was Blanesburgh, and Darling, Sir John Edge and assigned by the other two companies, their Mr Ameer Ali).—13th May 1924.
THE LATE MR A. R. C. PITMAN, W.S.,
with his play. His temperament was not suited EDINBURGH.
to any lessening of activity.
LAW AGENTS' EXAMINATIONS.
fries; David time, rapidly in
Wilson Brydie, creasing in extent.
Edinburgh; David Mr Archibald Pit
Cook, Edinburgh ; man at the time
John Watson of his death, in
Brand Crombie, addition to being
Coat bridge; one of the senior
William George partners of his
Dean, B.A., LL.B., firm, was a director
Aberdeen; Archiof the Union Bank
bald Francis of Scotland Ltd.,
Ferguson, B.L., the Standard Life
Glasgow; Thomas Assurance Co., and
Gibb, Cleland, the Realisation
Lanarkshire; and Debenture
David Grant, Corporation of
Greenock; ElizaScotland Ltd., in
beth Grant, B.L., all three of which
Dufftown; Thomas he had served in
Gunn, Glasgow; that capacity for
James Finlay upwards of thirty
gow; William Although Mr
. Pitman had these
Logan, Lochmany interests in
winnoch ; John the business world, Photo by W. Crooke]
[Edinburgh. MacBean, Edinhe was first and foremost a family lawyer and burgh ; Allister M‘Donald, M.A., LL.B., Glasadviser, his strict sense of justice, breadth of gow; James MʻKechnie, Glasgow ; Ian Donald view common sense, and sympathy making him, MʻLean, M.A., LL.B., Greenock; Margaret to borrow a phrase of a younger member of Gibson Melvin, M.A., LL.B., Edinburgh ; his profession, “the man one naturally went Thomas Henderson Adam Miller, M.A., LL.B., to when in doubt as to the right thing Glasgow; William Robertson, Uddingston ;
Herbert M‘Douall Small, M.A., LL.B., EdinMr Pitman in his leisure time was a great burgh ; Alexander Finlay Cairns Smith, B.A., walker and a keen sportsman and golfer. He B.L., Kilmarnock; Robert White, Edinburgh. was a past captain of the Honourable Company of Edinburgh Golfers.
His death came as he would have wished it, MR F. J. M'CLUSKEY (late of Charles Byrne, suddenly and without pain, after a full life and Esq., K.S.G., J.P., solicitor, Glasgow), intimates before old age had had an opportunity of inter- that he has now commenced business on his fering with his work or, to any great extent, own account at 6 Union Street, Glasgow.
THE AIR AND THE LAW.
extra commercium the Civil Law recognises
absolute unlimited ownership of the air-space By John CAMERON, LL.B., Advocate. can scarcely be doubted. This view is conThe maxim cuius est solum eius est usque ad firmed by two frequently quoted passages in cælum is one which is embedded deeply in the the Digest ? (one stamped with the authority law of Scotland. It has been sanctified by the of Paul), dealing respectively with the air-space institutional writers and approved by judicial above public lands vested in the State and with decision. It is construed as meaning that the tombs which, as being Res Sacre, were therefore rights of the owner of the solum are unlimited in extra commercium. The Civil Law thus appara vertical direction in the air-space above his ently recognised unlimited ownership of the airproperty, or, in other words, that in this space where the ownership of the solum was indefinite column in the air-space the owner of public. the subjacent solum has full and absolute
As to the right of private owners in the airproprietary right. The logical conclusion of space above their property, Ulpian, in comthis theory is that any interference by any other menting on the 9th section of Table VII. of the party or agency within this column of air-space,
XII. Tables, states unequivocally that this e.g. by the flight of air-craft or the transmission right of property was limited to a definite zone of wireless signals, is an invasion of the pro, the solum, and that above this height the
measuring 15 feet in a vertical direction above prietary right of the owner of the solum, and that, consequently, an action of interdict will private owner had no right or title apart from lie at his instance in respect of such interference. any specially acquired by him. It should also So strict and rigorous an interpretation clearly the Civil Law was an action of interdict entitled
be noted that one of the actions·recognised by conflicts with the needs and conditions of the present day. Aerial navigation and also, and operis novi muntiatio, the object of which was to in a greater degree, the recent great increase prevent the owner of an existing building from in wireless activity have made problems of replacing it by one of greater height or of aerial law no longer of merely academic interest
different type. Later legal development gave but of immediate and peremptory practical statutory recognition to this rule in the importance. Briefly stated, the fundamental
Basilica. It may be noticed here in passing
3 difficulty is the adequate safeguarding of the that the suggestion has been made that the rights of the private owner of the solum without existence of this action solves the mystery of the at the same time interfering unduly with the
servitude altius tollendi. freedom of public uses of the air-space.
From the passages cited it is not an unfair It is now generally admitted that this maxim conclusion to say that the Civil Law dealt with finds no place in the text of the Civil Law, and,
the air-space, so far as it was called upon to deal while its precise origin is unknown, it has been with it, rather upon the “zone theory” than traced by the late Professor Goudy to the upon the theory of unrestricted vertical private Glossators of the twelfth and thirteenth ownership. Admittedly, in the Institutes 4 it is centuries. These laborious scholiasts are re
stated that “By the law of nature these things sponsible for not a few anomalous excrescences
are common to mankind, the air, running water,
But upon the otherwise symmetrical edifice of the and, consequently, the shores of the sea. Jus Civile. It is in the Accursian gloss that the air is a different thing from the air-space, Jus Civile. It is in the Accursian gloss that and that this distinction was made by the this maxim makes its bow, and as Accursius flourished c. 1260 A.D. it is not surprising that Professor Goudy: 5 the relation of the air to the
Roman jurists has been clearly pointed out by no trace of the doctrine appears in the great air-space containing it may be regarded as not work of Glanvil or its Scots equivalent the unlike the relation of the running water of a Regiam Majestatem. Far from adopting the principle of absolute private ownership of the
river to its containing bed. air-space, the Civil Law appears to have adopted refused to be bound by the unrelieved rigour of
Continental jurisprudence has to some extent what is generally termed the zone theory” of aerial rights. By this theory the air-space is of 1900® provides that “the right of the owner
the maxim. Thus the German Imperial Code ship by different parties. As a general rule, the of a piece of land extends to the space above the air-space is regarded as divided into two such surface and to the substance of the earth air-space is regarded as divided into two such beneath the surface. The owner may not, belts, the inferior or private and the superior or public. That in the case of public lands and lands
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. 1 Macbrayne v. Glasgow City and District Rly., 1883, 4 Inst., lib. II. i. 1.
6 Op. cit., pp. 231, 232. Essays in Legal History,” 1913, p. 231.
6 German Imperial Code, 1900, sec. 905.
10 R. 894.
however, forbid interference which takes place or of the existence of an area of user. In at such a height or depth that he has no interest the later Finchley case the Court of Appeal in its prevention.” In the Swiss Civil Code 1 appears to have adopted a similar view. The there is a not dissimilar provision by which in important point in these cases is that the rights effect the rights of the owner of the solum in the of the street authorities were—so far as they air-space are limited by the necessities of his went-absolute rights of property, full and use of the solum.
complete within their statutory limits. But In England the maxim makes its first in spite of this, the street authorities did not, as definite appearance in reports of cases in the might legitimately be expected, enjoy in reign of Queen Elizabeth ; 2 but though it is common with the other parties having estates fortified by the approval of Coke and Black- of property in the same ground joint-rights of stone, recent judicial interpretation, and especi- property usque ad cælum in the air-space above. ally the ruthless hand of the legislator, has All that they were held to have acquired was an shorn it of so much of its ancient vigour that area of user in the air-space, determined in to-day it remains little more than the moulder- extent by the conditions of their use of the ing shell of a medieval tradition. So long subjacent solum. ago as 1815, Lord Ellenborough 3 declared his But the final blow at the doctrine of absolute opinion that no suit quare clausum fregit would ownership was only struck so recently as 1920. lie at the instance of the proprietor of the solum By the Air Navigation Act of that year, against an aeronaut passing over his land in a section 9 (1), it is provided that “no action balloon. This dictum is distinctly subversive shall lie in respect of trespass or in respect of of principle of absolute private ownership nuisance, by reason only of the flight of air-craft of the air-space, and although Lord Blackburn over any property at a height above the ground, said “I understand the good sense of Lord which, having regard to the wind, weather, and Ellenborough's view, but not the legal reason all the circumstances of the case, is reasonable, for it,” 4 it has formed the basis of modern or the ordinary incidents of such flight, so long English legal development in this branch of the as the provisions of this Act and any Order made law. Scots Law has always recognised the thereunder are duly complied with.” necessity for flexibility in order to meet the This section it will be at once seen implies two exigencies of altered circumstances ; this is things: first, the limitation of private property illustrated by a dictum of Lord Cullen in in the air-space to a belt of varying depth; a recent case. His Lordship there said with and secondly, the recognition of the absolute
. 5 reference to an argument founded on the freedom of public use and enjoyment of the case of Galbreath v. Armour (4 Bell's App. upper belt of the air-space. The Act is a 374): "I doubt its application to the case general and consolidating statute, and applies of the solum of a public street in burgh to Scotland as well as to England, so that it under present-day conceptions, which call would appear that its provisions have made a for operations of many kinds in the solum very drastic and fundamental change in one of in order to procure good sanitation and the basic principles of our law of heritable other conditions incident to the ordinary rights. In face of the 1920 Act it is suggested comfortable enjoyment of properties subserved that it is impossible now to say that the maxim by such operations.
cuius est solum eius est usque ad cælum correctly In England two well-known cases & illustrate summarises the law of the air. Thus the clearly the trend of legal development. Both structure of medieval theory has crumbled cases deal with the same problem, the rights of before the pressure of modern circumstances. street authorities to control the use of the air- While aerial navigation has been thus treated space above their streets. In the Wandsworth by legislation, no measure has as yet been case, the Master of the Rolls (Lord Esher) passed to deal with wireless problems. Some characterised the phrase “ usque ad cælum ” as general governing statute will be necessary to being “merely fanciful,” and the ratio of the prevent the chaos that would inevitably result Court's judgment in that case at least leans from leaving local authorities to deal with the towards the acceptance of the zone theory matter. It is suggested that expediency de
mands that in any legislation that may be found i Swiss Civil Code, sec. 667. 2 Croke, “Eliz.,” 118. necessary there should be adopted the principles
8 Pickering v. Rudd, 1815, 4 Camp. 219; cf. also Fay v. implied in section 9 of the Air Navigation Act, Prentice, 1 C.B. 828 ; Battishill v. Reed, 18 C.B. 696.
the recognition of the limitation of private 4 Kenyon v. Hart, 6 B. & S. 249.
5 Donald & Sons v. Esslemont de Mackintosh, 1923 ownership of the air-space and the assertion of S.C. 122, at p. 141.
as free and complete public rights therein as is 6 Wandsworth Board of Works v. United Telephone consistent with the adequate protection of the Co. Ltd., 1884, 13 Q.B.D. 904, at 913 and 915; Finchley Electric Light Co. v. Finchley Urban District
owner or occupier of the solum. Council, 1903, 1 Ch. 437.
1 10 & 11 Geo. V. cap. 80.
THE LATE MR WILLIAM COVENTRY, THE LATE MR WILLIAM MURRAY, S.S.C., EDINBURGH.
SOLICITOR, HADDINGTON. On Friday, 18th July 1924, there passed quietly over to the majority Mr William prominent East Lothian solicitor in the person
We regret to record the recent death of a Coventry, S.S.C., in his sixtieth year, a partner of Mr William Murray, who was also agent of in the old-established firm of Messrs Tods, the Union Bank of Scotland at Haddington. Murray & Jamieson, W.S. Eighteen months About sixty years of age, Mr Murray had been ago he underwent a serious operation from in practice for upwards of thirty years. He which he recovered, but his health again
broke down in the beginning of this year, and Messrs Richardson & Gemmill, solicitors, and broke down in the beginning of this year, and was sole partner of the well-known firm of he became gradually weaker until the end conducted a branch business at North Berwick. came peacefully. Mr Coventry was born and educated in and was recognised as an able and successful
Mr Murray possessed a large Court practice, Dundee, and also served his apprenticeship pleader. He also acted as clerk and treasurer there. He then came to Edinburgh and entered the well-known Chambers at *** 66." to the Haddington District Board of Control, He was not long there until his unusual ability the Haddington Town Council. At the time
was burgh Fiscal, and for a period a member of was recognised, and he was, while still a young of his death he was a member of the Parish man, put into a position of responsibility.
a Conveyancers may be said to be born not Council
. He was a leading member of the local Conveyancers may be said to be born not masonic lodge. He was secretary and treasurer made, and Mr Coventry was in every sense a to the local branch of the Farmers' Union, and born conveyancer.
He had a particular knowledge of Scottish conveyancing law and
his practical knowledge of the agricultural
interests made him a valued official. practice. When confronted with the most complex problem in conveyancing law, he administrator of the County Food Control
During the war Mr Murray was appointed seemed instinctively to grasp the salient facts and to apply the correct legal principle. A Department, and in recognition of these services methodical but quick worker, he could get through an immense amount of work with an Education Authority for East Lothian, and
Mr Murray was an active member of the accuracy and apparent ease which struck all with whom he had business relations. He the county. He was well known throughout
for many years acted as Unionist agent for was most conscientious and never scamped Scotland as editor of the “Factors' Magazine, anything he had to do; his object was not published by the Scottish Estate Factors'
' merely to do his work effectively but artistically. Society, of which he was a past-president. In
As a man Mr Coventry was invariably of a addition to numerous articles, Mr Murray for the kindly, cheerful, and courteous disposition, last twenty-four years contributed the series brother lawyers the best of his professional of legal notes to each issue. His services were knowledge and experience. He had an emi- in much request in connection with agricultural
arbitrations. nently relevant and logical mind; and, as sometimes occurs in the lifetime of a busy
Mr Murray, who was educated at Watson's lawyer, when he met someone who laboured a widow, two daughters, and a son, who is now
College and Edinburgh University, leaves a point removed from the issue under discussion, associated with the business of Richardson & Mr Coventry had an incisive way of bringing Gemmill. the talk back to the business in band. Many of his old assistants, who now occupy good positions throughout Scotland, gladly acknow
, ledge that they owe their success in a great measure to the training which they received
SPECIAL NOTICE. at his hands. His was a strong and kindly
The Editor will welcome legal problems or personality which will never be forgotten by those who bad the privilege of knowing him. questions of interest from subscribers, and will,
Though leading such an arduous professional wherever possible, arrange for articles thereon by life, Mr Coventry's interests were not confined experts. Interesting points are continually cropping to his work. He took a great delight in up in practice, and there is at present no means literature, and there were few classics with which other than that now suggested whereby a lawyer in he was not familiar.
Until the last year or two he was a keen angler, and was never
one part of Scotland may benefit at a saving of happier than when following the gentle art in time and money from the experience of a lawyer in his beloved Isla.
another part who has dealt with a similar problem.