Page images


SCOTS LAW MADE IN ENGLAND. Some interesting considerations are presented by the case of Young v. Campbell, reported 1924, S.L.T. 73. This was a case where the pursuer met with a serious accident through a fall consequent on her having caught her foot in a saucer-shaped depression in the pavement of a court common to and situated at the back of two tenements belonging to the defenders. The pursuer's husband was tenant of a house in one of the tenements. The Sheriff-Substitute allowed a proof, and the pursuer required the cause to be remitted to the Court of Session for, jury trial. The First Division recalled the interlocutor of the Sheriff-Substitute and dismissed the action, chiefly on the brocard volenti non fit injuria. The pursuer's own averments shewed that she had accepted the risk and put her out of court. So far there is nothing out of the way in the case. What is noteworthy is the part played in the case by the decision in Fairman v. Perpetual Investment Building Society ([1923] A.C. 74). Lord Skerrington and Lord Sands reserved their opinions on this case and its possible effect on Scots law. Lord Cullen, however, observed that "there is, I think, no doubt that an application of that decision in Scotland involves the upsetting of a considerable train of Scottish authorities whereby the law on the subject was here regarded as settled. While that is so, I am unable to perceive that the decision went on any principles of the law of liability for negligence which are not common to both countries. Moreover, as the report shews, the House had under its consideration certain representative Scottish cases on the subject. I am of opinion that we must follow the case of Fairman.

[ocr errors]

The plaintiff in Fairman lodged with her sister in a flat on the fourth floor of a block of flats owned by the defendants. The stairs were made of cement reinforced with bars of iron, of which there were two or three on each step. Owing to the wearing away of the cement, in some cases a bar became exposed and an irregular depression was scooped out behind it by the breaking away of little bits of cement. The plaintiff caught her heel in a depression so formed, and fell downstairs. The subsequent action went to the House of Lords, which found for the defendants. Though differing on the facts, the noble and learned Lords were at one on the principles to be applied. They held that the only duty owed by the defendants to the plaintiff was not to expose her to a concealed danger or trap. In so holding, they overruled the well-known case of Miller v. Hancock ([1893], 2 Q.B. 177). As Scots authorities were quoted, the personnel of the House is worth recording-Lords Buck

[ocr errors]

master, Atkinson, Sumner, Wrenbury, and Carson. The only direct reference to the Scots cases is made by Lord Buckmaster: "Two cases in the Scottish Courts appear to hold that in circumstances where the landlord retains control and possession of a common staircase his duty to the public is to keep it reasonably safe. Whether such a duty is one that it might be reasonable to impose on landlords is not a matter which this House has to consider. The question is-Does such a duty exist?" The answer in England is now "No." Miller v. Hancock said "Yes"; and this was, and, it is submitted, still is, the law of Scotland.

[ocr errors]

In Miller v. Hancock the defendant was owner of a building in the city of London, different floors of which were let as separate tenements for offices. The plaintiff was a collector in the employment of the Midland Railway, and had to call on tenants on the second floor. He met with an accident on the stairs owing to their defective condition, and broke his leg. (Lord Sumner, who in Fairman goes fully into the different reports of Miller, points out the curious circumstance that they are not unanimous even on the question whether the plaintiff was going up or coming down.) The jury awarded £200 damages, and this was upheld by a strong Court of Appeal holding that, inasmuch as the defendant must have known and contemplated that the staircase would be used by persons having business with his tenants, there was a duty on his part towards such persons to keep it in a reasonably safe condition. Lord Esher M.R. said: "I think that there is a relation between the landlord and those who resort to the premises for business purposes, from which a duty arises on the part of the landlord to keep the staircase, which is the means of access to the premises, in reasonably safe repair." Bowen L.J., afterwards Lord Bowen, said: A landlord must know when he lets a flat that tradesmen and other persons having business with the tenant must have access to it. It seems to me that it would render the whole transaction inefficacious and absurd if an implicit undertaking were not assumed on the part of the landlord to maintain the staircase so far as might be necessary for the reasonable enjoyment of the demised premises."


The Scots cases to which Lord Buckmaster referred are Kennedy v. Shotts Iron Co. (1913 S.C. 1143) and Grant v. Fleming (1914 S.C. 228). In these cases our Court enunciated the principle that there is a duty on the landlord in circumstances like those disclosed in this type of action to see that the staircase must be kept safe, not only in a question with his tenant but in a question with those lawfully resorting


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. Hannay (10 M. 411). The fact that Miller has now been disapproved in the House of Lords in an English case cannot, it is submitted, have the effect contended for by the defenders in Young, and conceded by Lord Cullen, of overruling by implication the trend of prior Scots decisions, which were not before the House of Lords.


In M'Martin, a case decided before our law had become infested by the barbarous terms licensee and invitee, a child was killed by falling through the railing of a common stair where one of the banisters was wanting. There thus in no sense "a trap," and, although the judgment here has been explained as resting entirely on the landlord's failure to repair the stair after being warned (see Lord President Strathclyde's opinion in Grant), it is interesting to note the words of Lord Cowan, who gave the leading judgment upholding the landlord's liability. "The child had a legitimate object for being on the stair, having been called up by one of the tenants with the view of being sent to do an errand for her, and thus stood in the same position as any party might have been who was called or had occasion to go up the stair for some lawful purpose, and who was entitled to rely on the entrance to these houses by this stair being in that safe condition in which it was the duty of the landlord to have kept it." The duty of the landlord, then, is to keep the stair in a safe condition for all lawful users, not merely the negative one of setting no traps for licensees. In Grant, again, the judges of the First Division enunciated most distinctly that the duty was to keep a reasonably safe entrance and exit for all who were using the property lawfully. Does this not constitute ground for saying that there is a tract of Scots authorities independent entirely of Miller?

If this be so, then there is no doubt that Fairman is not a precedent here. The House of Lords, it is true, cannot be regarded at one time as an English, at another as a Scots Court. In the words of Lord President Inglis (Virtue v. Commissioners of Police of Alloa, 1 R. 285 at p. 296), it "sits always in one character, as the House of Lords of the United Kingdom, and as such the imperial Court of Appeal for the whole three parts of the United Kingdom." But, of course, in Scots cases it sits to administer the law of Scotland only, and its judgments in English cases are precedents in Scotland only when the legal principles are the same in both countries. Sitting in an English case, the House of Lords

[ocr errors]


If, in spite of these considerations, Fairman is to be deemed the law of Scotland, it must be made quite clear that it goes so far and no farther. From the opinions in Fairman it is clear that there the plaintiff was a mere licensee; the landlord's duty to her was less than it would have been to an invitee. But in Young, Lord Skerrington makes it plain that the pursuer was an invitee. She was one of the class of persons ... for whose accommodation this back access had been provided by the original building owner, and continued to be provided by the defenders, not from any philanthropic motive, but because he, and after him the defenders, considered it to be for his and their advantage that both residents and members of the public should be offered and should enjoy this accommodation." If in future cases the argument of the defenders, as accepted by Lord Cullen, is to prevail, then the scope of Fairman has already been extended before the legitimacy of its application to Scots law is yet certain. Lord Cullen in his opinion said nothing which indicated that he differed from Lord Skerrington as to the pursuer's position.


We should beware of swallowing the law of England wholesale, and particularly on a matter like this, where the English law in itself is an uncertain state. Sir John Salmond says: "It is not possible in the present confused state of the authorities to state [the law] with any definiteness or confidence." In the Introduction to the 6th edition of his Law of Torts " he mentions this point, with special reference to Fairman. A third matter in respect of which the law is in a far from satisfactory condition is that of responsibility for harm done by dangerous premises or dangerous chattels. The question has recently been the subject of consideration in the House of Lords in the case of Fairman, but, notwithstanding this decision, the matter remains to a considerable extent one of grave uncertainty. Into this labyrinth a writer is bound to enter, but he does so with fear and trembling." We should strive to keep as clear as possible of the English labyrinth.


The Editor will welcome legal problems or questions of interest from subscribers, and will, wherever possible, arrange for articles thereon by experts. Interesting points are continually cropping up in practice, and there is at present no means other than that now suggested whereby a lawyer in one part of Scotland may benefit at a saving of time and money from the experience of a lawyer in another part who has dealt with a similar problem.


[ocr errors]


her lifetime, for onerous causes, by a deed to take effect at her death. When she made a settlement, therefore, leaving everything she had, or might afterwards have, to her sisters, no reasonable doubt can be entertained that she meant to include a sum which in effect was as much hers as any part of her property.' The Lord Ordinary goes on to point out that the law of Scotland has never recognised the English rule that a general devise, however unlimited in terms, will not comprehend the subject of the power unless it refers to the subject or the power itself."

Attention is directed to the final sentence in the paragraph above quoted as probably conveying an erroneous impression as to the law of England on the point of a general devise in relation to the subject of a power and the exercise of that power, and the following explanations are made.

Lord Corehouse was speaking in the year 1834, and the exact words used by him were these: "The defenders, relying on those English cases and dicta, have pleaded that a general devise, however unlimited in terms, will not comprehend the subject of the power unless it refer to the subject, or to the power itself, or unless some part of the will would otherwise be inoperative. If that be a rule of the law of England it is enough to say that no trace of such a rule ever existed in the law of Scotland."

"It is quite settled in our law and practice that, where a testator leaves his whole means and estate to a person or persons named in his will, that may be a sufficient exercise of a power to dispose of funds not the property of the testator, but which the testator has been empowered by somebody else to dispose of." That statement of the law of Scotland was made by Lord Deas in the case of Mackenzie v. Gillanders (1 R. 1050), and it is quoted by Lord Adam in the case of Dalgleish's Trs. v. Young (20 R. 904). In the latter case Lord Adam also referred to the case of Hyslop v. Maxwell's Trs. (12 S. 413) as follows: In that case Mr Maxwell left to his niece, Miss Hyslop, an annuity of £100 stg. with power to her by will or other deed under her hand' to dispose of as she might think proper, after her decease, of the capital sum of £2000, which was to be set apart by his trustees for ensuring the annuity, and which they were directed to pay in the way she might order and appoint. Miss Hyslop, before Mr Maxwell's death, had executed a settlement of her whole estate, heritable and moveable, in favour of her three sisters. After her death her sisters claimed this sum of £2000. Mr Maxwell's trustees objected to the claim on the ground that the testatrix had no property in the sum, but a mere power or faculty to dispose of it, and that her settlement was not an effectual exercise of the power, so that the sum of £2000 fell to the residuary legatee of Mr Maxwell. The Lord Ordinary, Lord Corehouse, than whom I need hardly say there can be no higher authority, preferred the Misses Hyslop's claim. The only question, therefore,' he said, 'is, whether the general conveyance in favour of her sisters is an execution of the power, and comprehends that sum. According to a very strict and rigorous construction of the instrument, it may perhaps be admitted that the words used do not comprehend it, for neither was the fee vested in her person, nor could the trustees have been called to denude of it during her life. But testamentary deeds are not SO 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 one time she submitted to a reduction of her annuity when the rate of interest fell. Indirectly, she might have disposed of it even in

It appears from "Jarman on Wills" after referred to, that such a rule did exist in England prior to the year 1837, but it was rescinded in that year by the statute to be afterwards adverted to.

Lord Adam, however, was speaking in the year 1893, and one gathers from the sentence referred to that the English rule was even then in operation, for no reference is made by his Lordship to the statute of 1837 abrogating the former law. Indeed, in "Wood's Lectures on Conveyancing," at p. 715, on the subject of Wills, the sentence mentioned is given as authority to the effect that the law of England differs from the law of Scotland on the subject under discussion.

England only. It is entitled, "An Act for the
Amendment of the Laws with respect to Wills,"
and is referred to shortly as the Statute of Wills.
It is enacted by section 27 of the statute (the

[ocr errors]

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

[ocr errors]

shall be construed to include any real estate which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator. . . shall be construed to

include any personal estate . which he may
have power to appoint in any manner he may
think proper, and shall operate as an execution
of such power, unless a contrary intention
shall appear by the will."

The subject is dealt with in "Jarman on
Wills," 4th ed., Vol. I. p. 682 et seq., and the
Statute of Wills is printed in the Appendix
to Vol. II.
W. Y.

It is officially announced that, in view of the
Justice Act, 1920, which provides for the
provisions of Part II. of the Administration of
enforcement in England, Scotland, or Ireland
of judgments obtained in any parts of His
Majesty's Dominions outside the United King-
dom or in
protection to which the Act extends, the
any Territories under His Majesty's
Territories have made reciprocal provision for
Legislatures of the undermentioned Overseas
the enforcement therein of judgments obtained
Session in Scotland, and the High Court in
in the High Court in England, the Court of


[blocks in formation]



The Federated Malay States.

WEST.-The Right Hon. The Lord Justice-
Clerk, and The Right Hon. Lord Murray.
The Northern Territories of the Gold Coast.
Inveraray-Wednesday, 26th March, at 10.30.
Pleading Diet Saturday, 15th March. Service in Council is confined to England, Scotland,
The operation of the above-mentioned Orders
Saturday, 8th March. Stirling-Tuesday, and Northern Ireland, and similar provision has
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
V. S. M. Marshall, Clerks.

NORTH.-The Hon. Lord Skerrington, and

The Hon. Lord Constable.


day, 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. Service-Tuesday, 25th March. Perth-Wednesday, 23rd April, at 10.30. Pleading Diet -Saturday, 12th April. Service-Saturday,

MR WILLIAM MARCHBANK, 45 York Place, Edinburgh, has been admitted a member of the Society of Solicitors before the Supreme




T. C. & E. C. Jack. Price 12s. 6d.

5th April. Aberdeen-Tuesday, 6th May, at The Scottish Law List for 1924. Edinburgh:
10.30. Pleading Diet-Saturday, 26th April.
Service-Saturday, 19th April. A. C. Black,
Esq., Advocate-Depute; Alexander Rae, Esq.,

Carefully revised and supplemented, to bring it up to date, the issue for 1924 is now on sale. The volume, which is in its usual handy form, also contains useful information relating to various public offices and departments, stamp duties, and Court fees, a list of accountants, and a section in which are to be found the names of law agents bracketed with the Scottish landowners, corporate bodies, limited liability companies, and public departments, etc., for

SOUTH.-The Hon. Lord Cullen, and The Right Hon. Lord Morison. Jedburgh-Wednesday, 26th March, at 10.30. Pleading Diet -Saturday, 15th March. Service-Saturday, 8th March. Ayr-Thursday, 3rd April, at 10.30. Pleading Diet-Monday, 24th March. Service-Monday, 17th March. DumfriesTuesday, 8th April, at 10.30. Pleading Diet -Saturday, 29th March. Service-Saturday, whom they act.

[merged small][ocr errors]

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


[ocr errors]
[ocr errors]


any such payment." But loan interest of the nature now referred to is not a payIf one may judge from the correspondence ment out of" profits. A payment 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 so 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 from the English Appeal Bench has been supported very recently by Lord Ormidale in the Second Division in the case of Lord Inverclyde's Trs. (1923, S.L.T. 711). For the benefit of any readers of this article who may not, as yet as any rate, have had access to the report of the latter case, it may be explained that the decision of the Court there was that the trustees must pay in full on an assessment under Schedule D on War Loan interest, received without deduction of tax at the source, and that they were not entitled as against that to set-off the very large amount of interest which in the same year they had paid on death duties without deduction of tax, the non-deduction of tax on the death duties being in terms of section 18 of the Finance Act, 1896.


[ocr errors]


It has been alleged that section 17 of the Income Tax Act, 1918, does not apply, because it is a section dealing with exemption, abatement, or relief," and the suggestion apparently is that these words have specific and limited meanings, which do not cover the question at issue. It is thought that that view is unsound. Section 17 deals with any claim ant," which is in contradistinction to the term individual ” in section 9. It is also to be observed that the rights of exemption, abatement, and relief introduced by section 9 are all to be found "in the six sections next following," being sections 10 to 15 both inclusive. It is true that section 16 refers back and is limited to those immediately preceding sections, but section 17 starts afresh on a wider basis. It therefore appears that the reference in section 17 to the taxpayer's right to deduct and " retain " is relevant and important. There appears to be a good deal of confusion as to the true meaning of paragraph (b) of subsection (1) of section 209 of the 1918 Act. That paragraph provides that "no deduction shall be made on account of any annual interest to be paid out of such profits or gains in regard that a proportionate part of

Paragraph (1) of Rule 3, Schedule D, Cases I. and II., is not helpful or applicable at all, for it also is limited to annual payments “out of "profits.

It seems to us that the question really turns upon the title and power of the Department to compel the trader to pay over the tax which he has deducted from the creditor in a year of loss. That payment may in many cases as matter of

« PreviousContinue »