Paton v. play. The question is whether the defenders, Education as the parties responsible for the proper equipAuthority ment of the school, are liable in damages for the occurrence in respect of negligence.

for Fife.

I

think it clear that it is their duty-to state it in general terms-to maintain the furniture of their classrooms in a sound and safe condition. If it should become defective, through decay or accidental damage, I should hold them responsible if an accident occurred in consequence. They could not, I think, plead ignorance of a defect which ought to have been known to their officials. The defect which is in question here would not, I assume, be obvious, save upon a close inspection of the school seats. But was there no duty to make an inspection? It is maintained for the pursuer that there was such a duty in the circumstances disclosed. seats are made of pitch pine, a wood which is very liable to splinter with age and use. They had been in use for a number of years-thirty, and probably more; and as Mr Dunbar, the headmaster, admitted, they were not smooth.' It does not appear that they had received any attention in the way of planing or smoothing since they were new. They have, in fact, been

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planed since this occurrence, and are now, I presume, free from splinters. The defenders attribute the lad's injury to accident, for which they are not responsible. They contend, I understand, that there was no duty of inspection, there being no reason to anticipate such an accident as has occurred. The point is, perhaps, a fine one, but I have reached the conclusion that there was, in the circumstances disclosed, a duty of inspection. The known character of the wood of which these seats were made, and the long period during which they had been in use, ought, I think, to have suggested this. It is, further, practically certain that an inspection would have revealed the peccant splinter. Part of it, the larger part, which caused the trouble and was extracted by the surgeon, was produced. It is a splinter of some length, several inches at least. It could not have escaped the application of a plane. The facts seem to me to warrant a verdict for the pursuer on the ground of negligence, and I propose to award the sum of £15 in name of damages and solatium with

expenses.

Agents for Pursuer, T. & R. J. Davidson, Solicitors, Cupar; Agents for Defenders, Dow & Son, Solicitors, Kirkcaldy.

SHERIFF COURT OF THE LOTHIANS AT EDINBURGH.

63.

(Sheriff-Substitute Orr, K.C.)

22nd June 1925.

Brown's Trustee v. Brown. Succession-Legal rights of spouses-Terce-Deductions -Factorage-In arriving at the sum due to a widow in respect of her terce the trustee made a deduction of 5 per cent. for factorage from the gross rental. The widow maintained that her late husband had occupied the property himself and no independent factorage was required, and, in any event, the rate charged was excessive-Circumstances in which held that a rate of 21 per cent. for factorage was sufficient. Agent and client Remuneration Agent's rights Charging order " Recovered on behalf of client "— Law Agents and Notaries Public (Scotland) Act, 1891, section 6-Pursuers brought an action craving the Court to fix the capital sum to be paid by them in redemption of terce due to the defender. The sum put forward was £18, 7s. 1d., but one of the deductions was partially disallowed, resulting in the capital sum being increased to £22, Os. 9d.-Circumstances in which held that it was equitable that a charging order should be granted to the defender's law agent upon the difference between these two sums, viz. £3, 13s. 8d. Process-Writ-Style-Declarator as to the annual amount of terce out of heritable subjects.

James Thomson and George Thomson, tobacco manufacturers, Leith Street, Edinburgh, and John Hope Campbell, writer to the signet, 31 Moray Place, Edinburgh, trustees of the deceased Louis Liddle Brown, cabinetmaker, who resided at 33 Lutton Place, Edinburgh, nominated by and acting under his trust disposition and settlement dated 12th August, and registered in the Books of Council and Session 17th December 1924, with the consent and concurrence of Louis Robertson Brown, electrician, residing at 35 Wellington Street, Portobello, heir-at-law of the said Louis Liddle Brown, brought an action against Mrs Hannah Sarah Joicey or Robertson or Brown, widow of the said Louis Liddle Brown, and presently residing at 33 Lutton Place aforesaid, in which they craved the Court:

(First) to grant a decree declaring what is the annual amount of the defender's right of terce out of the maindoor dwelling-house, No. 33 Lutton Place, Edinburgh, in the city and county of Edinburgh, described in the disposition by Robert Addison Smith, as trustee of David Reid, with consent therein mentioned in favour of the said Louis Liddle Brown, dated 10th and 11th, and recorded in the division of the General Register of Sasines for the county of Edinburgh on the 15th, all days of May 1905, namely, a sum which one year with another shall be taken as the annual amount of the defender's terce out of the said subjects and that from and after the date of the decree, or from and after any succeeding term of Whitsunday or Martinmas to be named by the Court;

and (second) to grant a decree declaring what is the capital sum to be paid by the pursuers to the defender in redemption of the said annual sum so to be fixed as the annual amount of the defender's right of terce out of the said subjects; to fix a date on or before which the pursuers may consign in the hands of the clerk of Court the redemption price of the said right of terce, and if such consignation shall be made to grant a decree declaring the said subjects to be freed and disburdened of the defender's right of terce; and in the event of the defender opposing this application, to find the defender liable to the pursuers in expenses.

The parties averred, inter alia :

COND. 1. The pursuers are the testamentary trustees of the deceased Louis Liddle Brown appointed by his trust disposition and settlement dated 12th August, and registered in the Books of Council and Session 17th December 1924. The said Louis Robertson Brown, who consents to and concurs in the present application to the Court, is the eldest son and heir-at-law of the said Louis Liddle Brown, and resides at 35 Wellington Street, Portobello. The defender is the widow of the said Louis Liddle Brown, and is presently, by permission of the pursuers, residing within 33 Lutton Place, Edinburgh.

COND. 2. The said Louis Liddle Brown died on or

about 11th December 1924, and at the time of his death he was proprietor of the maindoor dwellinghouse No. 33 Lutton Place, Edinburgh, which is entered in the Valuation Roll at a rental of £32 per annum. The feu-duty, including the additional sum for the redemption of the casualties, is £3, 6s. per annum. The pursuers have completed a valid title to the said property by recording a notice of title in their favour in the division of the General Register of Sasines applicable to the county of Edinburgh on 30th March 1925.

COND. 3. By his said trust disposition and settlement the said Louis Liddle Brown, inter alia, disponed the said property in trust to the pursuers. He further provided that the pursuers should allow the said Louis Robertson Brown the option of acquiring the said dwelling-house at 33 Lutton Place aforesaid on certain terms therein narrated, and the said Louis Robertson Brown has intimated to the pursuers that he is to exercise the said option.

COND. 4. The defender has intimated to the pursuers that she repudiates the testamentary provisions in her favour, and claims her legal rights, including terce out of the said property.

COND. 5. At the date of death of the said Louis Liddle Brown the said property was burdened with a bond and disposition in security granted by him in favour of the trustees of the late John Hope, W.S., Edinburgh, for the sum of £200 sterling, dated and recorded in the division of the General Register of Sasines applicable to the county of Edinburgh, 17th April 1911. The rate of interest thereon current at the date of death was 5 per cent. per

annum.

COND. 6. The following is a statement of the rental of the said property and of the charges and expenses which form deductions from the rental in ascertaining terce in accordance with section 21 (6) of the Conveyancing (Scotland) Act, 1924:

In the case of deductions (1), (2), (3), (4), and (5) the figures are those for the year current at the date of the deceased's death, and vouchers therefor are produced herewith. in answer, so far as not coinciding herewith, are denied. Quoad ultra, the statements The deduction of 5 per cent. in respect of factorage is at the lowest possible rate. In practice the rate is usually much higher in the case of a small property like the one in question.

with a statement that the free rental of said subjects, Ans. 6. The pursuers at first furnished the defender after all proper deductions, was £6, and the terce confurther communication to defender or her agent this sequently £2. Following on that and without any action was served, in which the items (6), (7), and (8) are added to the list of deductions for the first time, thereby reducing the terce ostensibly to £1, 4s. 8d. The defender objects to the item £1, 12s. (8) forming tion. Louis Liddle Brown lived all along till his a deduction. It is not a proper or enforceable deduc

death in the house 33 Lutton Place, and no inde

pendent factorage was needed or was, as matter of fact, employed, and no voucher of payment for factorthe terce is £1, 15s. 4d. In any event, if any charge age is produced. Accordingly, the proper amount of for factorage is permissible it ought not to exceed 24 per cent. of the rental. The defender had to come into the process in consequence of that to safeguard her interests, and she should be allowed her expenses.

of birth of the defender, but in her marriage certificate COND. 7. The pursuers are not aware of the date herewith produced she is said to have been forty-one years of age on the occasion of her marriage to the said Louis Liddle Brown, which took place on 28th September 1911. The defender is thus between cost of a post-office annuity of £1, 4s. 8d. per annum fifty-four and fifty-five years of age, at which age the in her favour would be £18, 7s. 1d.

fender's said right of terce by payment to her of a COND. 8. The pursuers desire to redeem the decapital sum to be fixed by the Court in terms of section 21 of the Conveyancing (Scotland) Act, 1924.

Ans. 7 and 8. Admitted that the defender is between fifty-four and fifty-five years of age. She office annuity for the settlement of her terce, provided approves of the course suggested of purchasing a post£1, 15s. 4d. it is for the annual sum she is entitled to, namely,

The pursuers pleaded, inter alia:

"1. The pursuers being proprietors of the said property affected by the defender's right of terce are entitled to the decree craved by

Brown.

The defender pleaded:

"1. The pursuers are bound to purchase an annuity in favour of the defender for an annual annuity of not less than £1, 15s. 4d.

"2. The amount of factorage claimed is, in the circumstances, excessive, and should be dis

allowed.

"3. The compearance of the defender in the process was rendered necessary to safeguard her rights and interests owing to the course adopted by the pursuers, and she should be allowed her expenses of process.'

On 5th June 1925 the Sheriff-Substitute pronounced this interlocutor: "Under reference to the annexed note, sustains the second plea in law for the pursuers; declares, in terms of the (first) conclusion of the crave of the writ, that the annual amount of the defender's right of terce out of the maindoor dwelling-house No. 33 Lutton Place, Edinburgh, referred to in said Lutton Place, Edinburgh, referred to in said crave, shall be taken as £1, 10s., and that from and after the date of this interlocutor; declares, in terms of the (second) conclusion of the crave of the writ, that the capital sum to be paid by the pursuers to the defender in redemption of the said annual amount of £1, 10s. is £22, Os. 9d. ; appoints and fixes 12th June 1925 as the date on or before which the pursuers may consign in the hands of the clerk of Court the said redemption price of £22, Os. 9d. of said right of terce, and on such consignation being made, and on a certificate to that effect being appended to this interlocutor by the clerk of Court, declares the said subjects to be freed and disburdened of the defender's right of terce; finds no expenses due to or by either party."

cent is sufficient; the charge, therefore, will be 16s. The amount of terce will be £1, 10s.

On 22nd June 1925 the Sheriff-Substitute, of the defender's agent for a charging order for having heard parties' procurators on the motion the amount of his account against the defender in relation to this action upon the sum of £22, Os. 9d. consigned in Court by the pursuers in terms of the interlocutor of Court, dated 5th June current, as the capitalised value of the defender's terce, found and declared Charles Garrow, solicitor, Edinburgh, the defender's agent, entitled, in terms of section 6 of the Law Agents and Notaries Public (Scotland) Act, 1891, to a charge upon and against, and to a right of payment out of, the said sum of £22, Os. 9d. for his account against the defender in relation to this action, as the same might be taxed by the Auditor of Court, but that only to the extent of £3, 13s. 8d., being the difference between the said sum of £22, Os. 9d. and the sum of £18, 7s. 1d., the sum which the pursuers set forth in the condescendence as the capitalised value of said terce.

The Sheriff-Substitute (Orr, K.C.). The pursuers came into Court craving the Court to fix the capital sum to be paid by them in redemption of defender's terce out of the subjects referred to on record; but the capital sum put forward by them as the correct amount was only £18, 7s. 1d. I have partially disallowed a claim made by pursuers for factorage, with the result that the capital sum is increased to £22, Os. 9d. The defence has been successful to that extent, and it appears equitable that a charging order should be granted to defender's agent upon the difference between those two sums, viz. £3, 13s. 8d., which may be said to be the sum preserved or recovered through his agency.

Counsel for Pursuers, King Murray; Agents, D. & J. H. Campbell, W.S., Edinburgh.-Agent for Defender, Charles Garrow, Solicitor, Edinburgh.