ACCORDING

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Agent and client Agent's rights Remuneration
Country agent and Edinburgh agent-A`firm of law
agents in the country defended an action on behalf
of A. B and C undertook to pay the expenses
thereof, and made a payment to account. The action
was eventually appealed to the Court of Session and
decided against A. The country agents sued B and C
for payment of their business account in respect of the
proceedings in the Sheriff Court, and also the business
charges of their Edinburgh agents for the Court of
Session proceedings-Circumstances in which held
that B and C were liable for the Sheriff Court charges
but not for the charges incurred in the Court of
Session proceedings.

Arrestment Effect- Special appropriation-Agent-A

raised an action against B and obtained decree. A
having threatened to do diligence, B's agent undertook
to pay to A the amount of the decree and expenses out
of the first funds which should come into his hands.
A accepted this offer and did not proceed with his
diligence. Over a year later arrestments were used

in the hands of B's agent-Held that there had been
a special appropriation of the money in B's agent's
hands to the extent of the amount in A's decree and
expenses, and therefore that A's claim was preferable
to those of the arresting creditors.
Cameron v. Neil

56

Bank-Post Office Savings Bank-Dispute between two
parties both claiming the same sum deposited-
Arbitration-Trustee Savings Banks Act, 1863 (26 &
27 Vict. cap. 87), section 48-Held that, although
the Postmaster-General had no interest in the merits
of the question, the Act applied, and the dispute fell
to be settled by arbitration-Lewis V. Paulton
(14 S.L.T. 818) followed.
Gibson v. Gibson

Bankruptcy-Insolvency-Gratuitous alienations-Con-
junct and confident person-Wife-Just and neces-
sary cause The trustee in bankruptcy brought an
action against the bankrupt's wife for the price of
goods supplied to her by her husband. The wife in
defence pleaded that the account had been settled and
discharged by loans which she had advanced to her
husband. There were certain entries in the bank-
rupt's books which shewed that he had received sums
of money from his wife. The trustee averred that
these entries were made when the bankrupt was
insolvent and shortly before or after the application
for sequestration, and that no cash passed and pay-
ment had never been made, and that it was incom-
petent to prove the pretended loans by the writ or
oath as the oath of the debtor was not admissible-
Held that as the trustee had made a charge of fraudu-

Bankruptcy-Notour bankruptcy-Constitution and en-
durance-Constitution anew of notour bankruptcy-
Diligence Poinding and sale-Bankruptcy (Scot-
land) Act, 1913 (3 & 4 Geo. V. cap. 20), sections
7 and 10-A debtor became bankrupt on 3rd Novem-
ber 1923 in respect of his insolvency concurring
with the expiry without payment of a charge of
six days, given on 26th November 1923 by C. under
an extract registered protest dated 17th November
1923. Following on the charge a poinding of
certain goods was executed on 12th December 1923.
On 21st December 1923 the debtor was anew rendered
bankrupt in respect of his insolvency concurring
with the expiry without payment of a charge of ten
days, given on 10th December 1925 by P. & A. under
a decree dated 7th December 1923. The poinded
goods were sold on 16th January and 19th March
1924 under order of Court and after expenses balance
consigned in Court. On 21st March the poinding
creditor C. was appointed to advertise for claims
which were to be lodged twelve days after date of
advertisement, which date was 10th April. On 9th
April two creditors holding decrees lodged their claims.
The poinding creditor objected to these claims in re-
spect that they had been lodged after 3rd April, being
the date by which it was alleged they should have been
lodged in order to rank with the poinding creditor's
under section 10 of the Bankruptcy (Scotland) Act,
1913-Held that as the poinding was executed
within sixty days of the second constitution of notour
bankruptcy, and the two claims were judicially pro-
duced in a competent process with the necessary
vouchers within four months of such constitution,
the claims were, in virtue of the terms of sections 7
and 10 of the Bankruptcy (Scotland) Act, 1913, en-
titled to be ranked pari passu with the claim of the
poinding creditor.
Campbell v. M'Kellar
Bankruptcy-Sequestration-Discharge of bankrupt-
Dividend under 5s. per £-A bankrupt whose estate
had not paid 5s. in the £ applied for his discharge
under the Bankruptcy (Scotland) Act, 1913 (3 & 4
Geo. V. cap. 20), section 146 (1) (b). In 1920, at the
age of fifteen, the bankrupt was the cause of an acci-
dent in which a jury in the Court of Session awarded
the injured party. A decree was pronounced for the
sum awarded, together with the taxed expenses
relating to the action against the bankrupt.
Following on the decree the bankrupt applied for
sequestration in respect of the decree, which was
awarded. At the date of sequestration there was no

82

into savings bank by father in son's name Son aged three when account opened-No intimation to son after he came to years of discretion that the money was intended as a gift to him-No handing over of passbook or other document of title-Held that the mere payment into an account in the son's name was not sufficient to infer donation. Gibson v. Gibson

47

Bankruptcy-Voluntary trust deed for behoof of creditors-Creditors-Accession-Implied accession -A creditor attended a meeting of creditors when it was proposed that the bankrupt's estate should be wound up by trust deed. The creditor did not oppose or dissent or express disapproval of the course recommended, and he was proposed to act along with the trustee upon an advisory committee. In an action for payment of the debt by the creditor against the debtor, circumstances in which held that the creditor had acquiesced in the trust deed and was barred from insisting in the action. Wilson v. Speirs Burgh Magistrates

52

Powers-Advertising-Billposting -Aberdeen Police and Improvement Act, 1900, section 42-Corporation refusing licences for proposed advertising sites in respect that the erection of an advertising hoarding would be detrimental to the amenity of the locality-Reasonable exercise of discretion-Appeal to Sheriff-Circumstances in which it was held the amenity of the district would not be prejudiced by the proposed erections and that the Corporation had not reasonably exercised their discretion, and application remitted back to them to grant a licence.

General Billposting Company Limited v. Corporation of Aberdeen

116

Contract-Custody of property-Condition—" At owner's risk "The owners of a motor car by their servant put the car into a garage for the night and received a ticket which bore, "This car . and contents are stored at owner's risk." A person who was not in the employment of the proprietor of the garage and had no authority to touch any of the cars in the garage started the engine and the car was damaged— Held that the proprietor, assuming the loss to have been due to his negligence, of the garage was protected by the condition and was not liable for the damage.

66

Criterion Plates Paper Films Limited v. Simpson Contract-Pacta illicita-Sponsio ludicra-Betting transaction-An action was brought against a commission agent for payment of a certain sum which originally arose out of a betting transaction. The commission agent sent an unsigned cheque in settlement of the bets, his reason for doing so being to gain time to make enquiry as to the genuineness of the instructions regarding the bets placed with him. In the course of correspondence following the return of the cheque the commission agent wrote, When I am satisfied that you are in no way connected with Mr. I shall pay you." The pursuer pleaded, founding upon the cheque and correspondence, that the commission agent was bound on a new contract between the parties which was not tainted with illegality-Held that, in the circumstances, there was only one contract arising out of a bet which the law would not enforce, and action dismissed. Goldstone v. Westwood

2

Expenses-Practice as to awarding-Particular processWorkmen's Compensation Acts-Stated case-The Sheriff-Substitute found a pursuer entitled to compensation under the Workmen's Compensation Acts between 4th April and 7th November and decerned therefor, reserving the question as to whether the compensation should be ended as at 7th November. The question of expenses was also reserved. Thereafter parties were heard on the question of terminating compensation, which the Sheriff-Substitute did as at 7th November, and found the defender liable in expenses subject to modification. A stated case was presented to the Court of Session. The Court of Session held that the defender was not liable to pay compensation at all and recalled the determination of the Sheriff-Substitute, and decerned, and found the appellant entitled to the expenses of the stated case on appeal, and remitted the account to the Auditor. defender in the Sheriff Court lodged a minute craving that the claim be dismissed, and for absolvitor with expenses-Held that the defender was entitled to absolvitor and to expenses-Observed that in allowing the defender expenses the Sheriff-Substitute was merely giving effect to the decision of the Court of Session.

The

91

Expenses-Practice as to awarding-Withdrawal of defence An action of ejection was served and after service the defenders vacated the house-The pursuer thereupon restricted the crave to the matter of expenses-Held that the pursuer was entitled to expenses.

Young v. Fairley

scale

49

Expenses-Taxation-Sheriff Court-Higher or lower Time for determination of scale Sheriff Courts (Scotland) Act, 1907, section 3-C.A.S., M, ii. 5-A person interested appealed to the SheriffSubstitute against a resolution of a Local Authority -Held that such an appeal was not a summary cause and that it was accordingly for the SheriffSubstitute to determine on which scale the account ought to be taxed-Held further, that an application to have the expenses taxed on the higher scale might competently be made after the account had been taxed.

Merry & Cuninghame v. District Committee of the Middle Ward of Lanarkshire

107

Expenses Tender An action was brought in the Summary Court for £47, 11s. 10d. for payment of a law agent's account. The defenders tendered in settlement £20 and small debt expenses. After proof and taxation the pursuers were found entitled to £12, 17s. 5d. The pursuers moved for expenses against the defenders in respect that the tender made was not in form a judicial tender in respect that the offer did not contain an offer of a certain amount with expenses appropriate to the particular Court in which the action was raised-Held that the tender was in order, and that the offer of expenses was appropriate and proper in the circumstances. Boyd & Wilson v. Gibson

29

Fishings- Protection of right Trespass Remedy Interdict or action of damages-A tenant, who had the exclusive right of salmon fishings, brought an action of damages in respect of loss sustained through the actings of the defender. It was averred that the defender, in pursuance of a deliberate scheme to spoil the pursuer's fishing, unwarrantably interfered with the pursuer in the exercise of his right to fish for salmon at the mouth of a river, resulting in the loss of profits of the season to the pursuer, who was a salmon fisherman. In defence it was maintained that what the pursuer complained of was poaching, and in the absence of any diversion of water or structural interference or of damage to the pursuer's property, the only remedy competent was interdict-Held that the action was competent and relevant, and proof allowed. MacInnes v. Macdonald

93

Husband and wife-Adherence and aliment-Offer to adhere-In his defence to an action of adherence and aliment a husband made a definite offer to adhere. The wife averred that the offer was not an honest offer of adherence. The Sheriff-Substitute allowed a proof, and on appeal the Sheriff superseded consideration of the cause for a time to enable the wife to test the bona fides of the offer. Thereafter the test not having been entirely successful, but in the meantime the husband through his law agent had definitely offered to take a furnished house in order that the parties might resume cohabitation, which the wife refused to do. The Sheriff then gave the wife an opportunity of amending her record by defining her attitude in order to state whether or not she was willing to accept the offer which the husband had made, on the assumption that it was genuine. The wife refused to amend, and the Sheriff recalled the allowance of proof and dismissed the action as irrelevant.

Samson v. Samson

section 1 Housing, Town Planning, &c., Act, 1909 (9 Edw. VII. cap. 44), sections 14 and 15-A landlord brought an action against a tenant for summary ejection from a house in respect that the rent was in arrear. The tenant pleaded that the landlord was barred from enforcing rent, in respect that he was in breach of the statutory duty to maintain the house in a reasonably habitable condition Held that, in respect that there had been failure on the part of the landlord to execute ordinary maintenance repairs, and that during the tenancy the landlord had failed to keep the dwellinghouse in all respects reasonably fit for human habitation, the landlord was not entitled in hoc statu to insist on payment of rent, and it was not legally due as, under the Housing, Town Planning, &c., Act, 1909, and the Housing (Scotland) Act, 1925, there was an implied undertaking that the dwelling-house should be kept by the landlord during the tenancy in all respects reasonably fit for human habitation -Weston v. Mories (1922, S.L.T. (Sh. Ct.) 84) followed. Oban Gas Company Limited v. Macdonald Oban Gas Company Limited v. Carmichael 97 Oban Gas Company Limited v. Munro

97

97

Landlord and tenant-Ejection-Rent in arrearsDecree granted subject to postponement of execution-Rescission of decree-Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. V. cap. 17), section 5 (1) – Application by defender by way of substantive writ to have decree rescinded-Circumstances in which of consent the Court pronounced an interlocutor rescinding a decree of ejection contained in an interlocutor in the principal action.

Justiciary cases-Coal Mines Act, 1911 (1 & 2 Geo. V. cap. 50), section 29-Gas accumulated in one part of a mine and special appliances were required to keep that part clear of gas. The mine was closed for thirty-four hours, during which the use of the special appliances was stopped, and the only method of ventilation was that used for the general ventilation of the mine-Held that there had been a failure constantly to produce an adequate amount of ventilation.

Landlord and tenant-Agriculture Act, 1920, section 10— Termination of lease-Compensation for disturbance -Termination by reason of notice to quit given by the landlord-Whether notice must be the notice required by the Act. A farm was let on a lease which expired at Martinmas 1923. The lease provided that if neither party gave the other notice in writing not less than two years before the expiry of the lease of his intention to terminate the lease at its expiry, the lease should continue from year to year, subject to two years' notice on either side. The landlord gave the tenant notice to quit in March 1921Held that the tenant was entitled to compensation for disturbance only if the notice to quit were one given in terms of the Agricultural Holdings Acts, 1908 to 1920, that the notice in question had been given under the lease, and therefore that the tenants were not entitled to compensation. Earl of Galloway v. Elliot

123 Landlord and tenant-Defective premises-Retention of rent Tenant justifiably refusing to pay rent Housing' (Scotland) Act, 1925 (15 Geo. V. cap. 15),

18

Landlord and tenant-Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, section 5 (1), as amended by the Rent and Mortgage Interest Restrictions Act, 1923, section 4-Restriction on right to possession-Tenant subletting - Ejection or removing-An action of ejection was brought against the tenant of a house and against a subtenant to whom the tenant had sublet it without the consent of the landlord-Held (1) that section 5 (1) of the 1920 Act as amended did not affect the common-law right of an urban tenant to sublet without the consent of the landlord; (2) that the subtenant was therefore not a squatter; and (3) that the action was therefore incompetent.

Landlord and tenant-Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, section 5 (1) (d), as amended by the Rent and Mortgage Interest Restrictions Act, 1923, section 4-Restriction on right to possession-House required by landlord for person engaged in the whole-time employment of one of the landlord's tenants-Meaning of "person engaged in whole-time employment"-Workmen also shareholders in business-Workmen working only three days a week and unemployed the other three days-Necessity of specifying person for whom the accommodation is required-In an action of remov

ing the landlord averred that he required the house for one of eight workmen engaged in the employment of one of his tenants. All the workmen were shareholders in the tenant company which owned the business, but owing to slackness of trade they were only employed three days a week-Held (1) that it was not necessary for the landlord to specify for which workman he required the house, and (2) that the workmen were engaged in the whole-time employment of a tenant of the landlord.

Beresford's Trustees v. MacInnes

Landlord and tenant-Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, section 12 (1) (f) and (g) -Statutory tenant-A. was tenant of a house to which the Act applied. He died intestate and was succeeded as tenant by B., his widow. B. died leaving a will appointing as her universal legatory C., her only daughter, who resided with her. Held that C. was the tenant, not under section 12 (1) (f) as deriving title under the original tenant, but under section 12 (1) (g) as a member of the tenant's family residing with her.

Kynoch v. Mitchell

Landlord and tenant-Lease-Urban

118

subject-Notice

of termination of tenancy-Sheriff Court (Scotland) Act, 1907 ( Edw. VII. cap. 51), section 38, First Schedule, Rule 118-Removal notice sent by sheriff officer-Notice not stating that it was given on behalf of landlord-Held that such a notice was not invalid. Seggie v. Haggart 104 Landlord and tenant-Removing-Title to sue-House closed by closing order-Housing, Town Planning, &c. (Scotland) Act, 1919, section 25-Housing (Scotland) Act, 1925, section 8-A closing order having become operative in respect of a house, and the tenant having failed to remove, the owner of the house brought an action of removing-Held when the closing order became final the relation of landlord and tenant ceased and that the owner had therefore no title to sue.

John Scott's Timber Company Limited v.

Landlord and tenant-Restriction on right to possession -Hardship Rent and Mortgage Interest Restrictions Act, 1923, section 5-Prevention of Eviction Act, 1924, section 1-A middle-aged lady had an income insufficient to support her and wished to supplement it by taking boarders. The house in which she lived was in a district which made it unsuitable for the purpose and she therefore bought a house suitable for boarders. The house was on the street level and the state of her health rendered it important that she should avoid going up and down stairs. She offered to the tenant, as alternative accommodation, the house in which she was then living, which was on the first floor. The tenant had a son in delicate health who required a great deal of fresh air, and if they lived in a house one storey up he could not run out so freely -Held that greater hardship would be caused by refusing to grant the order craved than by granting it, and decree of removing granted. Swirles v. Isles.

73

Landlord and tenant-Rights of parties under leaseTenant's right at common law to have subjects in tenantable order-Subjects not in tenantable condition-A tenant brought an action against the landlord to have him ordained (1) to repaper the staircase, parlour, bathroom, and bedroom; (2) to repaint the iron entrance gate and garden railing, front door, bathroom, bath, woodwork of bedroom, and woodwork of window; and (8) to distemper

54

Master and servant-Termination of employment-Dismissal Disobedience Dismissal of attendant of mental hospital-Asylums Officers' Superannuation Act, 1909 (9 Edw. VII. cap. 48), sections 8 and 9Contributions paid by attendant-In an action by an asylum attendant against a District Board for return of his contributions under the Asylums Officers' Superannuation Act, 1909, the District Board of Control refused to refund the contributions, in respect that the servant had been dismissed for "misconduct" within the meaning of section 10 (1) of the said Act-Circumstances in which held that the servant had been guilty of misconduct and that he was not entitled to have his contributions refunded. Burnett v. Aberdeen City District Board of Control

113

Parent and child-Illegitimate child-Custody-Father and mother-Provision for custody and aliment in action of affiliation and aliment-Competency of applying for alteration of provision-In an action of affiliation and aliment the original decree, which was dated 1st October 1915, decerned against the defender for aliment of an illegitimate female child until she should attain the age of fourteen years. The decree was in absence, became final, and was duly extracted. The defender presented a minute craving the Court to vary the decree to the effect of finding the defender entitled to claim delivery as at 18th October 1925, the child having reached ten yearsHeld that as the right to apply to alter the provision had not been reserved in the decree the minute was incompetent.

Personal bar-Acquiescenco-Mistake in law-Whether pleadable to defeat provisions of statute-Whether notice originally invalid curable-The Agriculture Act, 1920, section 10, provides that a tenancy shall not come to an end unless written notice of intention to terminate the tenancy be given, in the case of leases for three years and upwards, not less than one year and not more than two years before the termination of a lease. More than two years before the termination of the lease a landlord gave notice to a tenant who held a lease for ten years-Held that the landlord could not be personally barred by his actings from contending that the notice was not a notice under the Act in respect (1) that the mistake was a mistake not in fact but in law; (2) that the notice being originally bad could not be cured; and (8) that he could not bar himself so as to dispense with the notice required by the Act. Earl of Galloway v. Elliot

123