a

a

SCOTS LAW MADE IN ENGLAND.

master, Atkinson, Sumner, Wrenbury, and

Carson. The only direct reference to the Scots Some interesting considerations are presented cases is made by Lord Buckmaster : “ Two by the case of Young v. Campbell, reported cases in the Scottish Courts appear to 1924, S.L.T. 73. This was a case where the hold that in circumstances where the landlord pursuer met with a serious accident through a retains control and possession of a common fall consequent on her having caught her foot staircase his duty to the public is to keep it in a saucer-shaped depression in the pavement reasonably safe. Whether such a duty is one of a court common to and situated at the back that it might be reasonable to impose on of two tenements belonging to the defenders. landlords is not a matter which this House has The pursuer's husband was tenant of a house in to consider. The question is--Does such a one of the tenements. The Sheriff-Substitute duty exist ?." The answer in England is now allowed a proof, and the pursuer required the "No." Miller v. Hancock said "Yes"

Yes"; and cause to be remitted to the Court of Session for, this was, and, it is submitted, still is, the jury trial. The First Division recalled the law of Scotland. interlocutor of the Sheriff-Substitute and dis- In Miller v. Hancock the defendant was missed the action, chiefly on the brocard volenti owner of a building in the city of London, non fit injuria. The pursuer's own averments different floors of which were let as separate shewed that she had accepted the risk and put tenements for offices. The plaintiff was her out of court. So far there is nothing out collector in the employment of the Midland of the way in the case. What is noteworthy Railway, and had to call on tenants on the is the part played in the case by the decision second floor. He met with an accident on the in Fairman v. Perpetual Investment Building stairs owing to their defective condition, and Society ([1923] A.C. 74). Lord Skerrington and broke his leg. (Lord Sumner, who in Fairman Lord Sands reserved their opinions on this case goes fully into the different reports of Miller, and its possible effect on Scots law. Lord points out the curious circumstance that they Cullen, however, observed that “there is, I are not unanimous even on the question whether think, no doubt that an application of that the plaintiff was going up or coming down.) decision in Scotland involves the upsetting of a The jury awarded £200 damages, and this was considerable train of Scottish authorities where- upheld by a strong Court of Appeal holding by the law on the subject was here regarded as that, inasmuch as the defendant must have settled. While that is so, I am unable to known and contemplated that the staircase perceive that the decision went on any prin- would be used by persons having business with ciples of the law of liability for negligence which his tenants, there was a duty on his part are not common to both countries. Moreover, towards such persons to keep it in a reasonably as the report shews, the House had under its safe condition. Lord Esher M.R. said: “I consideration certain representative Scottish think that there is a relation between the cases on the subject. I am of opinion that we landlord and those who resort to the premises must follow the case of Fairman,

for business purposes, from which a duty The plaintiff in Fairman lodged with her arises on the part of the landlord to keep the sister in a flat on the fourth floor of a block of staircase, which is the means of access to the flats owned by the defendants. The stairs premises, in reasonably safe repair.” Bowen were made of cement reinforced with bars of L.J., afterwards Lord Bowen, said : A iron, of which there were two or three on each landlord must know when he lets a flat that step. Owing to the wearing away of the tradesmen and other persons having business cement, in some cases a bar became exposed with the tenant must have access to it. It and an irregular depression was scooped out seems to me that it would render the whole behind it by the breaking away of little bits of transaction inefficacious and absurd if an cement. The plaintiff caught her heel in a implicit undertaking were not assumed on the depression 80 formed, and fell downstairs. part of the landlord to maintain the staircase The subsequent action went to the House of so far as might be necessary for the reasonable Lords, which found for the defendants. Though enjoyment of the demised premises." differing on the facts, the noble and learned The Scots cases to which Lord Buckmaster Lords were at one on the principles to be applied. referred are Kennedy v. Shotts Iron Co. (1913 They held that the only duty owed by the S.C. 1143) and Grant v. Fleming (1914 S.C. 228). defendants to the plaintiff was not to expose In these cases our Court enunciated the principle her to a concealed danger or trap. In so that there is a duty on the landlord in circumholding, they overruled the well-known case stances like those disclosed in this type of of Miller v. Hancock ([1893), 2 Q.B. 177). As action to see that the staircase must be kept

Scots authorities were quoted, the personnel of safe, not only in a question with his tenant the House is worth recording-Lords Buck- but in a question with those lawfully resorting

h

66

there. Miller v. Hancock was, it is true, cannot alter Scots law or upset a train of Scots approved in these cases, but it was not regarded authorities if the Scots law was never properly as introducing a new principle into the law of before it and there is ground for the contention Scotland, but merely as the confirmation of a that the principles of the two countries on the principle already part of that law, and illus- particular point at issue are not the same. trated, for example, in the case of M‘Martin v. If, in spite of these considerations, Fairman Hannay (10 M. 411). The fact that Miller has is to be deemed the law of Scotland, it must be now been disapproved in the House of Lords made quite clear that it goes so far and no in an English case cannot, it is submitted, farther. From the opinions in Fairman it is have the effect contended for by the defenders clear that there the plaintiff was a mere licensee ; in Young, and conceded by Lord Cullen, of over the landlord's duty to her was less than it ruling by implication the trend of prior Scots would have been to an invitee. But in Young, decisions, which were not before the House of Lord Skerrington makes it plain that the Lords.

pursuer was an invitee. She was one of the In M‘Martin, a case decided before our law class of persons r. for whose accommodahad become infested by the barbarous terms tion this back access had been provided by licensee and invitee, a child was killed by the original building owner, and continued to falling through the railing of a common stair be provided by the defenders, not from any where one of the banisters was wanting. There philanthropic motive, but because he, and after was thus in no sense a tráp," and, although him the defenders, considered it to be for his the judgment here has been explained as resting and their advantage that both residents and entirely on the landlord's failure to repair the members of the public should be offered and stair after being warned (see Lord President should enjoy this accommodation.” If in Strathclyde's opinion in Grant), it is interest- future cases the argument of the defenders, as ing to note the words of Lord Cowan, who gave accepted by Lord Cullen, is to prevail, then the the leading judgment upholding the landlord's scope of Fairman has already been extended liability. The child had a legitimate object for before the legitimacy of its application to Scots being on the stair, having been called up by one law is yet certain. Lord Cullen in his opinion said of the tenants with the view of being sent to do nothing which indicated that he differed from an errand for her, and thus stood in the same Lord Skerrington as to the pursuer's position. position as any party might have been who was We should beware of swallowing the law of called or had occasion to go up the stair for England wholesale, and particularly on a some lawful purpose, and who was entitled to matter like this, where the English law in itself rely on the entrance to these houses by this is an uncertain state. Sir John Salmond says : stair being in that safe condition in which it “ “ It is not possible in the present confused state was the duty of the landlord to have kept it.” of the authorities to state (the law] with any The duty of the landlord, then, is to keep the definiteness or confidence." In the Introducstair in a safe condition for all lawful users, not tion to the 6th edition of his “ Law of Torts" merely the negative one of setting no traps for he mentions this point, with special reference to licensees. In Grant, again, the judges of the Fairman. A third matter in respect of which First Division enunciated most distinctly that the law is in a far from satisfactory condition the duty was to keep a reasonably safe entrance is that of responsibility for harm done by and exit for all who were using the property dangerous premises or dangerous chattels. lawfully. Does this not constitute ground for The question has recently been the subject of saying that there is a tract of Scots authorities consideration in the House of Lords in the case independent entirely of Miller ?

of Fairman, but, notwithstanding this decision, If this be so, then there is no doubt that the matter remains to a considerable extent one Fairman is not a precedent here. The House of grave uncertainty. Into this labyrinth a of Lords, it is true, cannot be regarded at one writer is bound to enter, but he does so with fear time as an English, at another as a Scots Court. and trembling.” We should strive to keep as In the words of Lord President Inglis (Virtue v. clear as possible of the English labyrinth. Commissioners of Police of Alloa, 1 R. 285 at p. 296), it “sits always in one character, as the

SPECIAL NOTICE. House of Lords of the United Kingdom, and as

The Editor will welcome legal problems or such the imperial Court of Appeal for the whole questions of interest from subscribers, and will, three parts of the United Kingdom.” But, of wherever possible, arrange for articles thereon by course, in Scots cases it sits to administer the law experts. Interesting points are continually cropping of Scotland only, and its judgments in English up in practice, and there is at present no means cases are precedents in Scotland only when the other than that now suggested whereby a lawyer in legal principles are the same in both countries. time and money from the experience of a lawyer in

one part of Scotland may benefit at a saving of Sitting in an English case, the House of Lords another part who has dealt with a similar problem.

GENERAL DEVISES, AND POWERS

her lifetime, for onerous causes, by a deed to OF APPOINTMENT.

take effect at her death. When she made a

settlement, therefore, leaving everything she “ It is quite settled in our law and practice had, or might afterwards have, to her sisters, that, where a testator leaves his whole means no reasonable doubt can be entertained that she and estate to a person or persons named in meant to include a sum which in effect was as his will, that may be a sufficient exercise of a much hers as any part of her property. The power to dispose of funds not the property of Lord Ordinary goes on to point out that the law the testator, but which the testator has been of Scotland has never recognised the English empowered by somebody else to dispose of.” rule that a general devise, however unlimited in That statement of the law of Scotland was made terms, will not comprehend the subject of the by Lord Deas in the case of Mackenzie v. power unless it refers to the subject or the Gillanders (1 R. 1050), and it is quoted by power itself." Lord Adam in the case of Dalgleish's Trs. v. Attention is directed to the final sentence in Young (20 R. 904). In the latter case Lord the paragraph above quoted as probably Adam also referred to the case of Hyslop v. conveying an erroneous impression as to the Maxwell's Trs. (12 S. 413) as follows : In law of England on the point of a general devise that case Mr Maxwell left to his niece, Miss in relation to the subject of a power and the Hyslop, an annuity of £100 stg. with power to exercise of that power, and the following her' by will or other deed under her hand' to explanations are made. dispose of as she might think proper, after her Lord Corehouse was speaking in the year decease, of the capital sum of £2000, which was 1834, and the exact words used by him were to be set apart by his trustees for ensuring the these : “The defenders, relying on those annuity, and which they were directed to pay English cases and dicta, have pleaded that a in the way she might order and appoint. Miss general devise, however unlimited in terms, Hyslop, before Mr Maxwell's death, had will not comprehend the subject of the power executed a settlement of her whole estate, unless it refer to the subject, or to the power heritable and moveable, in favour of her three itself, or unless some part of the will would sisters. After her death her sisters claimed otherwise be inoperative. If that be a rule of this sum of £2000. Mr Maxwell's trustees the law of England it is enough to say that no objected to the claim on the ground that the trace of such a rule ever existed in the law of testatrix had no property in the sum, but a mere Scotland.” power or faculty to dispose of it, and that her It

appears

from Jarman on Wills” after settlement was not an effectual exercise of the referred to, that such a rule did exist in England power, so that the sum of £2000 fell to the prior to the year 1837, but it was rescinded in residuary legatee of Mr Maxwell. The Lord that year by the statute to be afterwards Ordinary, Lord Corehouse, than whom I need adverted to. hardly say there can be no higher authority, Lord Adam, however, was speaking in the preferred the Misses Hyslop's claim. The year 1893, and one gathers from the sentence only question, therefore, he said, “is, whether referred to that the English rule was even then the general conveyance in favour of her sisters in operation, for no reference is made by his is an execution of the power, and comprehends Lordship to the statute of 1837 abrogating the that sum. According to a very strict and former law. Indeed, in “ Wood's Lectures on rigorous construction of the instrument, it may Conveyancing," at p. 715, on the subject of perhaps be admitted that the words used do Wills, the sentence mentioned is given as not comprehend it, for neither was the fee authority to the effect that the law of England vested in her person, nor could the trustees differs from the law of Scotland on the subject have been called to denude of it during her under discussion. life. But testamentary deeds not Apparently, therefore, the sentence in quesconstrued ; on the contrary, it is an invariable tion has already had, and may continue to rule that they shall receive the most liberal have a misleading effect. The purpose of the interpretation, and that which carries the present article is to correct any misleading presumed intention of the testator into effect. tendency, and to point out to those members The sum in dispute, though not technically of the profession who may not hitherto have had Miss Hyslop's property, was virtually so. occasion to consider the subject, that the law of She had the interest of it during her life, and the both countries has been brought into line since unlimited power of disposal at her death. So the passing of 1 Vict. cap. 26, which applies to

. , much was it considered her property that at England only. It is entitled, " An Act for the one time she submitted to a reduction of her Amendment of the Laws with respect to Wills," annuity when the rate of interest fell. In- and is referred to shortly as the Statute of Wills. directly, she might have disposed of it even in It is enacted by section 27 of the statute (the

are

SO

.

rubric of which is " A general gift shall include 22nd March. J. M. Hunter, Esq., Advocate

“ estates over which the testator has a general Depute; V. S. M. Marshall, Clerk. power of appointment”) “That a general devise of the real estate of the testator shall be construed to include any real estate ... which he may have power to appoint in

It is officially announced that, in view of the any manner he may think proper, and shall operate as an execution of such power, unless a Justice Act, 1920, which provides for the

provisions of Part II. of the Administration of contrary intention shall appear by the will; enforcement in England, Scotland, or Ireland and in like manner a bequest of the personal of judgments obtained in any parts of His estate of the testator .... shall be construed to include any personal estate . which he

Majesty's Dominions outside the United Kingmay

dom or in have power to appoint in

any

Territories under His Majesty's any manner he

may think proper, and shall operate as an execution protection to which the Act extends, the of such power, unless a contrary intention Territories have made reciprocal provision for shall appear by the will." The subject is dealt with in “ Jarman on in the High Court in England, the Court of

the enforcement therein of judgments obtained Wills,” 4th ed., Vol. I. p. 682 et seq., and the Session in Scotland, and the High Court in Statute of Wills is printed in the Appendix to Vol. II.

W. Y.

Ireland.

Orders in Council have accordingly been issued extending Part II. of the Act to:

Ashanti.
Bermuda.

Jamaica.
SPRING CIRCUITS, 1924.

Mauritius.

The Federated Malay States. WEST.-The Right Hon. The Lord Justice

Johore. Clerk, and The Right Hon. Lord Murray.

The Northern Territories of the Gold Coast. Inveraray-Wednesday, 26th March, at 10.30.

The operation of the above-mentioned Orders Pleading Diet—Saturday, 15th March. Service -Saturday, 8th March. Stirling-Tuesday, and Northern Ireland, and similar provision has

in Council is confined to England, Scotland, 15th April, at 10.30. Pleading Diet ---Saturday, not yet been made as regards the Irish Free 5th April. Service-Saturday, 29th March.

State by the Government of that State.
Glasgow, Monday, 28th April, at 11. Pleading
Diet-Friday, 18th April. Service-Friday,
11th April. Alexander Maitland, Esq.,
Advocate-Depute; Messrs Alexander Rae and

MR WILLIAM MARCH BANK, 45 York Place, V. S. M. Marshall, Clerks.

Edinburgh, has been admitted a member of NORTH.—The Hon. Lord Skerrington, and the Society of Solicitors before the Supreme

Courts. The Hon. Lord Constable. Inverness—Tuesday, 8th April, at 10.30. Pleading DietSaturday, 29th March. Service-Saturday, 22nd March. Dundee-Friday, 11th April, at 10.30. Pleading Diet-Tuesday, 1st April.

LAW LIBRARY. Service-Tuesday, 25th March. Perth-Wednesday, 23rd April, at 10.30. Pleading Diet

BOOK NOTICE. - Saturday, 12th April. Service-Saturday, 5th April. Aberdeen-Tuesday, 6th May, at The Scottish Law List for 1924. Edinburgh: 10.30. Pleading Diet-Saturday, 26th April. T.C. & E. C. Jack. Price 12s. 6d. Service—Saturday, 19th April. A. C. Black, Esq., Advocate-Depute; Alexander Rae, Esq., Carefully revised and supplemented, to bring Clerk

it to date, the issue for 1924 is now on sale. SOUTH.—The Hon. Lord Cullen, and The The volume, which is in its usual handy form, Right Hon. Lord Morison. Jedburgh-Wed- also contains useful information relating to nesday, 26th March, at 10.30. Pleading Diet various public offices and departments, stamp -Saturday, 15th March. Service-Saturday, duties, and Court fees, a list of accountants, 8th March. Ayr—Thursday, 3rd April, at and a section in which are to be found the 10.30. Pleading Diet-Monday, 24th March. names of law agents bracketed with the Scottish Service-Monday, 17th March. Dumfries- landowners, corporate bodies, limited liability Tuesday, 8th April, at 10.30. Pleading Diet companies, and public departments, etc., for -Saturday, 29th March. Service-Saturday, whoin they act.

up

INCOME TAX ON TRADE INTEREST IN the tax is allowed to be deducted on making

any such payment. But loan interest of A YEAR OF LOSS.

the nature now referred to is not a pay. If one may judge from the correspondence ment "out of” profits. A payment out columns of the accounting press, it appears of” profits is an item in the apportionthat quite a large amount of attention is being ment of profits after the profits have been given to the income tax relations which arise, ascertained, as for instance payment to a in a year of loss, on a trader's account which retired partner, or to the widow of a deceased contains a debit of interest paid to a creditor partner, under partnership arrangements giving under deduction of income tax. It is said that those parties respectively continuing interests the Department's practice is (1) to require the in the profits. That has nothing whatever to trader to pay over to the Department the tax do with the case of payment of interest on which he has thus deducted from the creditor, borrowed capital. Interest of that kind is an although the trader may otherwise be liable outgoing before profits are ascertained. Therefor no tax at all in that year; and (2) that fore that enactment seems to have no bearing nevertheless, for the purposes of future aver- whatever on the question now under conages, the interest in question is added back sideration. Further, in the correspondence 80 as to reduce that year's loss to be brought referred to it has, we are bound to admit in into account in future years, or even it may be our opinion very naturally, been suggested, or to turn that year's loss into a profit. It is otherwise assumed as obvious, that the clause pointed out that this creates a hardship and introduced by “in regard that” is the reason amounts to double taxation, and it is added assigned by the statute for the disallowance of that there is an unjustifiable differentiation the deduction in question. The correspondent against the trader in respect of interest paid who puts that forward is evidently not familiar by him under deduction of tax as compared with the remarks of Lord Justice Bowen in with interest paid by him gross. This is not the case of Alexandria Water Co. (11 Q.B.D. an accountants' journal, and no attempt will 177), where the correspondent's view or assumphere be made to go into a tabulation of figures, tion is absolutely negatived. The Lord or to dispute computations

" with official Justice said that that clause is “ not an expresand accounting experts. But on the legal sion of the reason of the legislature, but is aspects of the matter it may be useful to state to render impossible an erroneous view which certain considerations which do not appear might otherwise be entertained by the person to have been mentioned in the extensive corre- computing (the taxpayer) as to his being spondence to which reference has been made. entitled to make the deduction." That dictum

It has been alleged that section 17 of the from the English Appeal Bench has been Income Tax Act, 1918, does not apply, because supported very recently by Lord Ormidale it is a section dealing with exemption, in the Second Division in the case of Lord abatement, or relief,” and the suggestion Inverclyde's Trs. (1923, S.L.T. 711). For the apparently is that these words have specific benefit of any readers of this article who may and limited meanings, which do not cover the not, as yet as any rate, have had access to the question at issue. It is thought that that view report of the latter case, it may be explained is unsound. Section 17 deals with any claim that the decision of the Court there was that ant,” which is in contra distinction to the the trustees must pay in full on an assessment term individual in section 9. It is also under Schedule Don War Loan interest, to be observed that the rights of exemption, received without deduction of tax at the abatement, and relief introduced by section 9 source, and that they were not entitled as are all to be found " in the six sections next against that to set-off the very large amount following,” being sections 10 to 15 both inclu- of interest which in the same year they had sive. It is true that section 16 refers back paid on death duties without deduction of tax, and is limited to those immediately preceding the non-deduction of tax on the death duties sections, but section 17 starts afresh on a wider being in terms of section 18 of the Finance basis. It therefore appears that the reference Act, 1896. in section 17 to the taxpayer's right to deduct Paragraph (l) of Rule 3, Schedule D, Cases and “retain " is relevant and important. I. and II., is not helpful or applicable at all,

There appears to be a good deal of confusion for it also is limited to annual payments out as to the true meaning of paragraph (6) of of” profits. subsection (1) of section 209 of the 1918 Act. It seems to us that the question really turns That paragraph provides that “no deduction upon the title and power of the Department to shall be made on account of any annual interest compel the trader to pay over the tax which he

to be paid out of such profits or has deducted from the creditor in a year of loss. gains in regard that a proportionate part of | That payment may in many cases as matter of