The pursuer seeks to recover interest on the sum of £79,732, 16s. 4d. I offer no opinion on the general question whether interest accrues during the continuance of war on a debt due to an enemy. The topic was discussed in the case of Hugh Stevenson & Sons, but I am of opinion that the Custodian is not entitled to payment of interest as concluded for, namely, as from the dates at which the £79,732, 16s. 4d. was received by the defenders. Up to the date of the outbreak of war no right to interest had accrued to the Adria Co. under the contract, and it is at least a debatable point whether what has occurred since has given that company any right to demand interest at all, and if it has, what interest. In my opinion an indefinite and disputed claim to interest is not property belonging to the enemy. The provisions of the Trading with the Enemy Acts are concerned only with specific property which can be definitely pointed out. The Custodian does not, in my judgment, possess any right or title on behalf of the Adria Co. to have the matter cleared up in the present process. I shall decern against the defenders to make payment to the pursuer of the sum of £79,732, 16s. 4d. Counsel for Pursuer, The Lord Advocate (Clyde, K.C.), Pitman; Agent, Thomas Carmichael, S.S.C. -Counsel for Defenders, Sandeman, K.C., C. H. Brown; Agents, Webster, Will & Co., W.S. SECOND DIVISION. W. G., for R. H. (The Lord Justice-Clerk, Lords Dundas, Salvesen, 3. and Guthrie.) 4th December 1918. Murray v. Pilkington. 1. Landlord and tenant - Small Landholders Acts Crofters' Holdings (Scotland) Act 1886 (49 & 50 Vict. cap. 29)-Holding-Enlargement of holding-Crofter Murray v ton. 1918. On 4th October 1911 Catherine Murray pre- 2ND DIV. sented an application to the Crofters Commission (the jurisdiction of which was thereafter, under Pilking the Small Landholders (Scotland) Act 1911 (1 & 2 Geo. V. cap. 49), exercised by the Scottish December +, Land Court) with regard to certain subjects at Reay Village, Caithness-shire, of which Alan Douglas Pilkington of Sandside is the proprietor. The application contained a crave for an order to fix a fair rent to be paid for the holding, but this crave was followed by a statement in these terms: "I am satisfied with the amount of rent, but I desire the finding of the Commission as to the landlord's interference with my right of way around house and steading." The schedule to the application contained a specification of the contents of the holding as including arable land extending (as agreed at the hearing) to 4·110 acres with 0.440 of an acre outrun, and dwellinghouse, byre, barn, and stable, and an interest in grazings at Dachow extending to 16 acres. The rent was stated to be £6, and "for grazing according to head of cattle-at present £2making in all £8." The respondent to the application was Thomas Pilkington, Esq., who was then the proprietor of the estate of Sandside, which he purchased with entry as at the term of Whitsunday 1887. At the term of Whitsunday 1913 Thomas Pilkington conveyed the estate to his son Alan Douglas Pilkington, who thus became the proprietor, and was sisted as a party to the application. On 5th June 1916 the Land Court pronounced the following order: "Find.... that the present yearly rent pay- At the request of the defender the Land original croft - Whole subjects worked together as one holding - Rent of the different subjects entered separately in landlord's books and separate receipts granted-Held that the right of grazing and the barn and stable did not form part of the holding. II. Landlord and Tenant-Small Landholders (Scotland) Act 1911 (1 & 2 Geo. V. cap. 49)-Stated case-Discrepancy between findings in stated case and statements in note by Land Court-Held that the statements in the note by the Land Court fell to be disregarded. Stated Case under the Small Landholders (1) At the passing of the Crofters Act 1886, the la 2ND DIV. erection of a new dwelling-house on the site of the December 4, 1918. (2) At the term of Whitsunday 1896 a holding belonging to Finlay Mackay was given up, and was divided among four crofters including George Murray, who thus obtained, in addition to the subject formerly held by him, (First) arable ground at the yearly rent of £2, 3s. 10d. and (Second) a barn and stable at a rent of £1. The different items of rent, as well as the interest on expenditure and the rent for Dachow grazing, were all entered separately in the landlord's books, and receipts granted accordingly. (3) At the term of Whitsunday 1906 the said George succeeded her father in the tenancy and paid a rent and stable remained at £1. In 1911 the rent was increased by a sum of 11s. in respect of interest for The following Questions of Law were stated, "2. On the facts stated, was there evidence The case was heard before the Second Division on 30th November and 3rd December 1918. Argued for the Defender: The barn and stable, and also the applicant's interest in the Dachow grazing, did not fall within the statutory conditions and could not be the subject of an award by the Land Court unless they were incorporated with the holding. On the findings in the case it was clear that they had not been so incorporated. Argued for the Pursuer: The question was one of fact: Of what did the holding consist when the question was brought before the Land Court? There had been enlargements of the original holding as contemplated by the Crofters Act 1886, and the various parts had been worked together as one holding (Small Landholders (Scotland) Act 1911, section 26 (2)). Avizandum, 3rd December 1918. On 4th December 1918 the Court answered the second question of law and branch (a) of the third question in the negative, and the fourth question in the affirmative. Lord Dundas.-It seems to me to be really lamentable that this small dispute should have dragged its slow length for seven years. As long ago as September 1912 the landlord had, without admitting liability, constructed a pathway, which appears to have figured prominently, if not principally, as the subject of contention, and he craved the Land Court to have the application finally disposed of. No final order, however, was pronounced until June 1916. There may have been good reasons for this remarkable delay, though no explanation was furnished to us; but I think it may not improbably have caused or contributed to the errors into which the Land Court fell, as I think they fell, in framing their final order. Fully two more years elapsed before the present case was submitted to this Court. [His Lordship then dealt with the first question of law.] The second and third questions ask whether, on the facts stated, there was evidence upon which the Land Court could competently find that the stable and barn, and the applicant's interest in the grazing known as Dachow, "3. On the facts stated (a) was there evidence formed part of the holding. My opinion is upon which the Land Court could clearly in the negative. We must, I apprehend, competently find that the applicant's proceed, as the questions properly indicate, interest in the grazing known as upon the facts found in the case, and not Dachow formed part of the holding; upon statements as to the contents of the holdand (b) if so, were the Land Court ing contained in the note by the Land Court entitled to fix the rent payable therefor to their final order. These statements appear according to what was proved to have to me to differ diametrically from those in the been the customary method of payment? case. That difference may or may not have "4. Was the final order of the Land Court arisen because, after the delay of four years, to quoad the second and third findings which I have alluded, the memory of the Land or either of them in excess of their Court as to the facts of this small matter had jurisdiction?" become dim; but, however this may be, the the case. contents of the note cannot, in my judgment, be looked at to contradict the facts found in The statement of these begins with details of the contents of "the holding' which, at the passing of the Crofters Act 1886, were tenanted by the applicant's father, and in respect of which he then became a crofter. The statement proceeds: "He also exercised the right of grazing on Dachow. His rent was £6, apart from what was paid for grazing on Dachow." It seems to me to be plainly found in fact that the right of grazing, whatever it was, was not part of the holding, but distinct from it. In 1896, when Finlay Mackay's holding was divided, the applicant's father obtained a bit of arable ground, and the barn and stable now in question-these latter at a rent of £1. The facts found disclose that "the different items of rent, as well as the interest on expenditure and the rent for Dachow grazing, were all entered separately in the landlord's books, and receipts granted accordingly." When the applicant succeeded her father in 1907 "she paid a rent of £5 for the original holding and £1 for the barn and stable, while she continued to rent a share of the grazing on Dachow." From these and other statements of fact in the case it seems to me clear that we must hold that neither the barn and stable nor the grazing were originally part of the holding, but that they were, and still are, separate subjects held separately and apart from the holding. I do not think that the finding "that the whole of these subjects had been worked together as one holding" is of any material advantage to the applicant's argument. Subjects held under different and distinct tenures may, for convenience, or for any reason, be worked together; but that fact will not alter their respective characters in law. There is not a shadow of evidence to shew that the original croft was ever enlarged so as to comprise either the barn and stable or the grazing, even supposing that these were subjects which could have been susceptible of absorption into a croft. I have no doubt that we ought to answer the second question and branch (a) of the third question in the negative. Branch (b) of the third question, if that view be correct, is superseded and does not arise for decision. It follows from what I have said that the fourth question must, in my judgment, be answered in the affirmative. The result will be that the first finding in the Land Court's order of 5th June 1916 will stand; but the second and third findings are of no force or avail. Lord Salvesen.-I agree in the opinion which has been delivered. [His Lordship then dealt with the first question in the case.] So far as the barn and stable are concerned, the position of matters was that, at the date when the Act of 1886 became operative, ton. 1918. they formed no part of the holding, but were 2ND DIV. part of another holding. That holding was Murray v. given up by the crofter, and the land reverted Pilking to the landlord free from the fetters imposed upon it by the Act of 1886. He could have December 4, done with this land just as he pleased; in point of fact, what he did was to divide it by giving it upon separate tenures to the remaining crofters. The respondent's father received 2 acres of that croft, plus a barn and a stable, which had been used by the crofter who had given up his holding, and he got these subjects upon a separate title of let. It is a novelty, to my mind, to say that because you let a piece of ground, after the date of the Crofters Act, to a crofter, it automatically becomes part of the croft when the landlord is careful to shew that that is not his intention by his exacting a separate rent for it. Whatever was held along with the original holding in 1886 was, of course, not subject to disposal by the landlord; but that land which he afterwards became entitled to, and could deal with as he pleased, should become part of a holding, because he allowed a crofter under a contract of lease to have the use of it, seems to me absolutely unarguable. With regard to the grazing, I agree with Lord Dundas that there are no facts stated in the case from which the Land Court could deduce the conclusion that a share in the 16 acres of grazing land at Dachow formed part of the original holding. Whether evidence might have been adduced that would have led to a different conclusion we cannot speculate upon. The fact remains that no evidence on the subject was led, and there was nothing to warrant the Land Court in holding that a share, and still less a variable share-variable at the option, apparently, of the crofter-in a certain grazing formed part of the original holding. I accordingly agree with Lord Dundas that the second, third, and fourth questions should be answered as he proposes. Lord Guthrie.-I concur in the opinion of Lord Dundas. The Lord Justice-Clerk.-I agree with Lord Dundas, subject to this observation, that, so far as Dachow grazings are concerned, I prefer to put my judgment upon the fact that the finding in regard to that matter is not justifiable, in respect that it seems to me perfectly plain from the pleading and from the argument at our Bar that this question of the Dachow grazings was never raised as matter in dispute before the Land Court; and, accordingly, no judgment upon that question should have been given. Counsel for Pursuer, W. Mitchell, Valentine; Agents, Robert Stewart & Scott, S.S.C.-Counsel for Defender, Moncrieff, K.C., Gentles; Agents, Macpherson & Mackay, S.S.C. W. S. D., for D. O. D. Campbell Paterson, Woodend, Glasgow, brought an action against Robert Paterson and James Davidson Paterson, coffee essence manufacturers, 77 Charlotte Street, Glasgow for payment of £1217, 2s. 9d. The pursuer was formerly managing director and shareholder in a private company of coffee essence manufacturers trading under the firm name of R. Paterson & Son. In the beginning of May 1914 the pursuer retired from the post of managing director of the company, leaving the management with the defenders but retaining his holding of shares in the company. The pursuer averred that in the three years prior to 31st March 1914 the share of profits paid to him averaged £7000, that it had been the invariable practice of the company to pay income tax, to deduct the payment from the gross profits and so to bring out the net profit divisible among the shareholders, and that the share of profit paid to the pursuer was arrived at after income tax had been paid. The pursuer further averred that a minute of agreement, dated 5th May 1914, was entered into between the pursuer and defenders; that it was a condition of this agreement that the actual return payable to the pursuer out of the profits should not be less than the average which he had received up to that date, and that the defenders guaranteed payment to him, as his share of the profits of the company, of a sum of not less than £7000 per annum. The pursuer also averred that in the agreement the parties used the word "profits" in the sense of the previous practice of the company and intended that the sum of £7000 should be paid to him free of income tax. For the year ending 31st March 1916 the share of the profits found due to the pursuer and paid to him amounted to £5782, 17s. 3d., and the sum of £1217, 2s. 9d. sued for represented the deficiency between the amount actually paid and the amount which the pursuer claimed under the agreement. A proof having been allowed, the pursuer moved the Court for a commission and diligence to recover documents, and lodged a specification the terms of which sufficiently appear from the opinion of the Lord Ordinary. On 22nd November 1918 the Lord Ordinary Lord Hunter. This specification has come back to me from the Inner House with a simple remit to proceed in the cause. As there may be room for misapprehension and as I consider that a question of practice of some importance in connection with the adjustment of specifications is raised, I think it right to state why I took the course which I did. At the previous discussion before me I thought it quite evident that the diligence claimed by the pursuer was infinitely too wide, and I indicated to him that he ought to remodel his specification. That course is the course which I have invariably followed in similar circumstances since I have been on the Bench, and it is the course which, within my own knowledge, when I was at the Bar, was followed by other judges. It is a course which economises the time of the Court and also of counsel, and it saves a considerable amount of expense to litigants. The recovery of documents in a cause is allowed in order that the Court may be put in possession of documentary evidence bearing upon the issues of fact that have to be determined. The draughtsman of a specification, as it appears to me, ought to frame the articles of his call with distinct reference to the issues of fact upon which the documents are supposed to have a bearing. Unfortunately that practice is too often not followed, and a general call is made for all documents, wherever they may be or in whose hands they may be, that are supposed tohave any bearing upon any question that is mentioned upon the record. The result is that processes are frequently encumbered by quite useless documents and an enormous amount of unnecessary expense is caused to litigants. To my mind, a specification expressed in absolutely wide terms and without reference to issues of fact is an abuse of the right of recovery; and, so far as I am concerned, I should think it a misfortune if it were supposed that a Lord Ordinary, whose discretion must regulate the procedure of the cause, is not to be entitled to ask a litigant to reframe a specification which is expressed in general terms. In the present case, I thought the specification framed in infinitely too wide terms, and, therefore, I ordered that it should be remodelled. As counsel did not see his way to remodel thespecification, I refused it. Now, the main issue of fact in the present case-and the issue of fact that I am called upon to try-is what is the meaning, in an agreement between the pursuer and the defenders, of an expression "share of profits." It is contended for the pursuer that it means the share of profits after income tax on his behalf has been paid. For the defenders, that is denied. There is a subordinate question with reference to the amount of income tax that was paid in the year ending March 1916. Keeping in view these two issues of fact, one has to consider what documents the pursuer has a right to recover. Kirkcudbrightshire. Valuation-Subject-Erection by tenant-Lands Valuation (Scotland) Amendment Act 1895 (58 & 59 Vict. cap. 41), section 4 (3)-Granite crusher-Held that a granite crusher erected by a tenant was a "structure" in which a mineral was treated in the sense of section 4 (3) of Case. As the first article of the specification was 5. D. H. & J. Newall v. Assessor for framed, it was, to my mind, in terms involved and obscure in meaning. Not only were documents bearing upon questions of fact asked for, but all documents, all books, profit and loss accounts, ledgers, private ledgers, and everything else kept by the company were called for. In the discussion that took place to-day I think it was conceded that that call was much too wide. There could not, to my mind, be any doubt about it. But even yet there is not agreement between the two parties, and I have to indicate what, in my view, should be recovered: I think the pursuer is entitled-and, if he gets this, he gets all that, to my mind, he is entitled to-to get the books of the company that excerpts at the sight of the commissioner appointed by the Court may be taken relating to the practice of the company as to the payment of dividends to shareholders and deduction of income tax from shareholders' dividends between 1st April 1909 and 12th December 1916. The second article of the specification is also objectionable in respect of the generality of its terms. There is a call for the minutes of "the meetings of the company and of its directors in so far as bearing upon the said matters." It is very difficult to know what "the said matters" were. But, assuming that you have extracted from the first article, after criticism, what is meant by "the said matters," then what is "bearing upon them"? What are sought to be recovered? And in addition to that, any minutes bearing upon the averments.on record are called for. Reading this record, I find there are many statements made that are really not in issue between the parties; they refer to matters of mere historical interest. It would be quite useless to have the minutes bearing upon these. The only minutes that can be of any use must relate to the practice of this company in regard to income tax and payment of dividends; and I think, therefore, Article 2 must be limited in the same way as I have limited Article 1. [His Lordship dealt with other articles of the specification with which this report is not concerned.] With these amendments, I grant the specification. D. H. & J. Newall, granite workers, Dalbeattie, appealed to the Valuation Committee of the Stewartry of Kirkcudbright against the following entry in the Valuation Roll: No. Description and 156 Situation. Granite crush- D. Proprietor. Occupier. Rent. H. and Proprietors £75 J. Newall, chants, Dal- and craved that the entry should be struck The case The Committee dismissed the appeal. forth: The subjects embraced in the lease are entered in the current year's Valuation Roll, the said William and the appellants as tenants and occupiers as follows: Jardine Herries Maxwell being entered as proprietor BUITTLE PARISH. 144. Quarry, Craignair Rent. Pater son. December 13, 1918. |