(319) [Scots Law Times, June 7, 1919 INDEX OF CASES ACCORDING TO SUBJECT MATTER. Note.-The figures refer to the number of the Page, and not to the number of the Case. L signifies House of Lords Decision. O signifies Outer House or Bill Chamber Decision. S signifies Sheriff Court Decision. J signifies Justiciary Court Decision. C.A. signifies Criminal Appeal Court Decision. R signifies Registration Appeal Court Decision. V signifies Lands Valuation Appeal Court and Valuation Appeal Court Decision. R. and C.T.C. signifies Railway and Canal Traffic Cases. ACQUIESCENCE. See CONTRACT PAGE ARBITRATION-continued. 98 158 247 See PARENT AND 77 CHILD ARBITRATION-Arbiter; Disqualification; Reference to two named arbiters, and to an oversman in the event of their differing; One arbiter a shareholder in a railway company which was a party to the reference; Arbiters differing in opinion; Award devolving on oversman; Held, on the assumption that the rules as to disqualification of judges applied to arbiters, that the arbiter was disqualified, and that the oversman's award was reducible at the instance of the other party to the reference. Sellar v. Highland Railway Co.-L Expenses; Lands Clauses Consolidation (Scotland) Act 1845, s. 24; Arbiters nominated by railway company and by party claiming compensation; 149 Arbiter appointed by the railway company disqualified as being a shareholder in the company at the date of his appointment; Decree-arbitral by oversman reduced at instance of claimant on account of arbiter's disqualification; Held that the company was not liable for the expenses incurred by the claimant in the reference. Sellar v. Highland Railway Co.-L Reduction of award; Personal bar; Reference to arbiters to determine sums payable by landlord to outgoing tenant in respect of bona fide sheep stock of farm; Action of reduction of award by landlord on ground that stock delivered was not the bona fide stock of the farm; Acceptance of stock by landlord without challenge; Treatment of stock as his own; Delay in raising the question; Circumstances in which held that the landlord was barred from maintaining that the sheep stock delivered to him was not the bona fide sheep stock of the farm. Fletcher v. Robertson . Reduction of award; Reference to arbiters to determine value of sheep stock; Direction to determine value by average prices of sheep of same ages and quality at certain specified markets; Averments in action of reduction that the oversman's valuation was not based on such average PAGE 149 260 ARBITRATION-continued. prices, but that a substantial allowance was added for acclimatisation value held relevant and proof allowed. Fletcher v. Robertson . CHURCH-Ann; Act 1672, cap. 13; "Rent of the benefice or stipend"; Glebe; Minerals under glebe; Lease of ironstone under glebe in return for grassum and nominal rent; Grassum invested on heritable security by trustees for behoof of the incumbent for the time being; Held that the interest on the invested funds was subject to ann. Fyfe v. Thomson . COMPANY Alteration of constitution; Extension of objects; Power to amalgamate; Power to sell or dispose of the undertaking; Companies (Consolidation) Act 1908, s. 9 (1) and (2); Petition by company for confirmation of alteration of constitution; Company already possessing power to amalgamate; Power to amalgamate granted, and power to sell undertaking refused. Aberdeen Steam Navigation Co. Ltd., Petrs. Capital; Reduction of capital; Procedure; Petition for confirmation; Form of prayer; Companies (Consolidation) Act 1908, s. 49; Creditors not affected by reduction; No specialties to be dealt with; Held that it was inappropriate to include in the prayer of the petition the clauses which apply to creditors and to the list to be made up in terms of s. 49 of the Act. Cranston's Tea Rooms Ltd. (and Reduced), Petrs. CONTRACT Contract for services; Increase of charge; Acquiescence; Personal bar; Railway company rendering services to manufacturers and intimating increase of rate of charges; Manufacturers continuing under protest to take advantage of services and making payments at old rate; Railway company accepting payments as payments "to account"; Held that the manufacturers were barred from objecting to the increase of rates, and decree granted for the amount of the increased charges withheld by them. Caledonian Railway Co. v. Stein & Co. Ltd.. Executory contract. See WAR-O Interdependence of contracts; Verbal agreement to purchase ships A and B at a slump price; Agreement embodied in two separate written contracts and price apportioned between ships by buyers; Knowledge of sellers PAGE CONTRACT-continued. 260 185 249 107 5 that buyers wanted only ship A and bought ship B solely in order to secure ship A; Contract for sale of ship A falling through owing to requisition by Government; Held the contracts were not interdependent, and that the buyers were bound to pay the price of ship B. Claddagh Steamship Co. Ltd. v. Steven & Co. Sale; Impossibility of performance; War; Government requisition; Sale of Goods Act 1893, ss. 12 (2) and (3), 17, 18, 20, 28, and 62 (4); Contract for sale of a ship, property to pass at stipulated date; Requisition of ship by Government before arrival of stipulated date; Held that the buyers were not bound to take delivery of the ship subject to the requisition, and were not bound to pay the price. Claddagh Steamship Co. Ltd. v. Steven & Co. PAGE 31 31 DAMAGES-Breach of contract; Owner of shop granting lease in which he bound. himself not to let any other shop for purpose of a business of a similar nature to that of his tenant; Breach of condition by letting shop for similar business; Claim for damage to tenant's business; Opinions that no damage to tenant's business had been proved; Opinions that the tenant's claim should be a claim for abatement of rent. Randall Ltd. v. Summers. . 191 Measure of damages; Available market; "Market or current price"; Sale of Goods Act 1893, s. 51 (2) and (3); Contract for sale of goods to be manufactured according to specifications; Sellers failing to deliver the goods; Circumstances in which it was held that there was an available market for the goods at the date of the breach of contract. Marshall & Co. v. Nicoll & Son. Solatium; Amount of damages; Motion for new trial on ground of excess of damages; Action by father for death. of infant son aged six months; Circumstances in which it was held that £250 was an excessive award. M'Kiernan v. Glasgow Corporation 98 ENTAIL-Disentail; Effect on obligations imposed by statute on heirs of entail; Statute imposing obligation on heirs of entail to pay certain fees to townclerk of a burgh; Heir in possession under entail disentailing estate and thereafter re-entailing on himself and certain of the heirs under the earlier 88 204 [Scots Law Times, June 7, 1919. ENTAIL-continued. THE SCOTS LAW TIMES-DIGEST. entail; Held that the obligation to pay fees to the town-clerk was not abrogated by the disentail, but was binding on the heirs under the new entail as being a debt of the entailer; Held also that the town-clerk was entitled to sue the heirs of entail without discussing the representatives of the entailer. Glasgow Corporation v. Lord Blythswood-O Provision to younger children; Provision to children of heir-apparent; Aberdeen Act 1824, ss. 1, 4, and 6; Entail (Scotland) Amendment Act 1868, s. 6; Heir in possession granting provisions payable on his death to his younger children out of entailed estate by bond of provision dated in 1881; Bond of provision declared to be revocable, but bearing to be granted in satisfaction of provisions contained in heir's marriage contract; Heirapparent in 1892, with consent of heir in possession, granting provisions to heir-apparent's younger children payable on heir-apparent's death; Heir-apparent predeceasing heir in possession; Held (1) that the provisions in favour of the heir-apparent's children were payable at his death, and their amount was not affected by the provisions in favour of the children of the heir in possession; Held further (2) that the provisions in favour of the children of the heir in possession had been granted at the date when the heir in possession consented to those of the heir-apparent's children and were preferable to the latter provisions, and that their amount fell to be ascertained at the death of the heir in possession as if the provisions of the heir-apparent's children had not been granted; Held accordingly (3) that the heir succeeding to the entailed estate was liable for the total amount of both sets of provisions, although the cumulo amount was in excess of three years' rental of the estate, both in the year current at the heirapparent's death and in the year current at the death of the heir in possession. Earl of Haddington, Petr. -0. EVIDENCE Diligence to recover documents; Action of damages for slander; Defender moving for diligence to recover documents to enable him to ascertain if veritas could be successfully pleaded; Documents asked not competent evidence in cause; Motion not opposed by pursuers; Circum PAGE 201 15 EVIDENCE-continued. 321 PAGE 304 12 140 stances in which motion refused by Lord Ordinary. M'Kinnon & Co. Ltd. v. Whitelaw-0 Commission and diligence for recovery of documents; Specification; Framing of specification; Observations by Lord Ordinary (Hunter) with reference to the framing of specifications. Paterson v. Paterson-0 Modification of written document by parole evidence; Decree; Small debt decree obtained by creditor; Arrestments laid on under decree; Petition by debtor for recall; Averment of verbal agreement to accept payment of the sum in the decree by instalments, and that three weeks' instalments were paid and accepted; Held that in the absence of rei interventus the agreement could not be proved by parole evidence; Held also that the acceptance of instalments was not inconsistent with the terms of the decree and did not amount to rei interventus. Lavan v. Gavin Aird & Co. Ltd. EXPENSES Abandonment; Judicature Act 1825, s. 10; Interlocutor dismissing action as irrelevant reversed, and pursuers found entitled to the expenses of the reclaiming note; Leave to appeal to House of Lords refused; Pursuers subsequently abandoning action; Held that the defenders were not entitled to the expenses of the reclaiming note or the expenses of the application for leave to appeal. Nobel's Explosives Co. Ltd. v. British Dominions General Insurance Co. Ltd. -0. 195, 225 Agent-disburser; Interlocutor of 11th December 1918 finding pursuer entitled to expenses against defender, remitting to the Auditor, and decerning for the expenses as taxed; Account taxed by Auditor on 31st January 1919; Motion by pursuer's agent on 1st February 1919 for decree for expenses in his name as agent-disburser; Held that the motion came too late in respect (1) that there was undue delay in making it, and (2) that no reasonable excuse was offered for the failure to make it at the appropriate time. Torry v. Torry-O 161 HARBOUR Harbour authority; Duty to afford facilities for vessels berthing in turn; Harbours, Docks, and Piers Clauses Act 1847, s. 52; Bye-laws regulating the docking of vessels in turn "according to time of arrival at HARBOUR-continued. berthage"; Harbour-master giving precedence, because of special circumstances, to A's vessel, although it had arrived after B's; Held that the harbour-master had acted ultra vires and that the harbour authority was liable for any loss caused to B. Gould & Co. v. Clyde Navigation Trs.-S HUSBAND AND WIFE Divorce for adultery; Proof of adultery; Onus; Period of gestation; Child born 331 days after last intercourse between husband and wife; Held that the onus was on the wife to shew that the husband was the father of the child. Gray v. Gray-0. Divorce for desertion; Husband removing from home to single-roomed house; Offer to receive wife at new house; Husband refusing to receive children of the marriage in the new house; Held that the wife was in desertion and divorce granted. Inglis v. Inglis-O INDUSTRIAL AND PROVIDENT SOCIETY Powers; Rules; Power to dispose of profits; Industrial and Provident Societies Act 1893, ss. 4, 10 (1) and (6), and Second Schedule (10); Held that a society registered under the Act of 1893 may apply its profits to the promotion of the candidature of co-operative candidates for Parliament and local bodies, provided the rules of the society empower it to do so; Terms of a society's rules which were held not to empower the society so to apply its profits. Lafferty v. Barrhead Co-operative Society Ltd.-O INNKEEPER-Duty to give board and lodging to bona fide traveller; Common inn; Station hotel belonging to railway company; Right to refuse accommodation to traveller; Proof before answer allowed. Rothfield v. North British Railway Co.. INTERNATIONAL LAW-Domicile; Change of domicile; Domiciled Scotsman going to Australia with the object of overcoming drinking habits, and residing in Australia for twenty-five years until his death; Circumstances in which held that he had abandoned his Scottish domicile and acquired a domicile in Australia. Mackinnon's Trs. v. Inland Revenue-O. Domicile; Wife's domicile; Deserted wife; A, a domiciled Scotsman, going to Australia with wife's consent and acquiring a domicile there; Contract of separation between A and his wife PAGE INTERNATIONAL LAW-continued. 198 163 184 257 195 214 PAGE 214 entered into before A left Scotland; A contracting a bigamous marriage in Australia; Wife remaining in Scotland until her death and signeting summons of divorce before her death; Held that the wife had retained her Scottish domicile. Mackinnon's Trs. v. Inland Revenue-O Marriage contract; Wife domiciled in England and husband in Scotland; Spouses intending to reside in Scotland; Wife's estate settled by indenture in English form; Indenture not containing technical expressions of English law; Husband's estate settled by marriage contract in Scotch form to which wife was a party; Held that the indenture fell to be construed in accordance with the law of Scotland. Eadie's Trs. v. Henderson--O . . 253 JUSTICIARY CASES-Alternative charges; General conviction; Criminal Law Amendment Act 1885, s. 13 (1); Criminal Law Amendment Act 1912, cap. 20; Charge of managing or assisting in the management of a brothel; Held that the charges were not alter native, and that a general conviction was valid. Vaughan v. Smith-J . 314 JURISDICTION - Forum non conveniens; Action for accounting in relation to LANDLORD AND TENANT-Action of removing; House let along with land not exceeding two acres in extent; Sheriff Courts (Scotland) Act 1907, s. 37; Statutory notice of termination of tenancy not given; Action served more than forty days before term; Action held competent. Green v. Young-S. Compensation for unreasonable disturbance; Agricultural Holdings (Scotland) Act 1908, s. 10; Jurisdiction of arbiter; Notice to quit; Notice by tenant of claim for compensation; Held that the questions of the validity of the notice to quit and of the sufficiency of the tenant's notice 138 314 [Scots Law Times, June 7, 1919. THE SCOTS LAW TIMES-DIGEST. LANDLORD AND TENANT-continued. of claim fell to be determined by the arbiter. Ferries v. Viscountess Cowdray-L Furnished house; Receptacles reserved by landlord; Evidence; Written lease; Modifying written lease by parole evidence; Observations per Lord Sands on a landlord's right to lock up cupboards, wardrobes, and other receptacles when house let furnished. Miller v. Wilson-O. Lease; Duty of landlord to keep premises habitable, and wind-and-water-tight; Remit to man of skill; Competency; Action by tenant craving Court to remit to man of skill (a) to inspect premises, (b) report on condition thereof, and (c) to report upon the repairs necessary to be executed by landlord; Held that the action was incompetent as laid. M'Farlane v. Crawford-S Lease; Restrictive agreement; Shop let for purposes of bootseller's business; Lease providing that landlord should not let any other shop in his property for a business of a similar nature; Landlord letting shop for purpose of naval outfitter's business which included the sale of men's boots (uniform and civilian) as an essential part; Held that the business of naval outfitters was not similar to that of the bootseller's and that the landlord was not in breach of the restrictive agreement. Randall Ltd. v. Summers Removing; Title to sue; Landlord entering into missives for sale of house with future date of entry; Held that until the date of entry arrived the landlord had a title to sue an action of removing Grandison v. Mackay-O 153 223 144 323 PAGE 29 23 9 PAGE LANDLORD AND TENANT-continued. 191 95 Small Landholders (Scotland) Act 1911. s. 26 (3) (c); "Municipal boundary 9 95, 309 253 |