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case of the illness or absence of the official sheriffclerk depute. He resigned the office after election and before the personal objection to his appointment was considered by the Sheriff-Substitute-Held that he was disqualified from acting as trustee. Sinclair's Sequestration




date elected found to be disqualified-Necessity for new election-Power of Sheriff-Substitute to order second meeting of creditors to elect a trusteeBankruptcy (Scotland) Act, 1913, section 63-After a meeting held for the election of a trustee the candidate elected was found by the Sheriff-Substitute to have been at the time of the meeting personally disqualified from holding the office. This personal objection had not been stated at the meeting-Held (1) that the unsuccessful candidate had not been elected, but that a new election was necessary; and (2) that the Sheriff-Substitute had no power to order it to be held, but that an application must be made to the nobile officium of the Court of Session.

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Bankruptcy Sequestration-Trustee Personal objection -Competency of stating personal objection after expiry of four days from date of meeting for election of trustee Bankruptcy (Scotland) Act, 1913, section 66 A personal objection was stated to a trustee within four days from the meeting for election. After the expiry of the four days a motion was made for leave to amend the note of objections by adding a new personal objection-Held that, since a personal objection had been taken within the four days and the new objection had been taken before any decision had been arrived at, the new objection could competently be considered and leave to amend granted. Sinclair's Sequestration

82 Bankruptcy Sequestration-Vesting of estate in trustee -Alimentary provisions-Excess-Right of trustee to obtain decree for payment of excess against payer of alimentary provisions-Bankruptcy (Scotland) Act, 1913, section 98 (2) A bankrupt had right to an alimentary liferent under her father's will. Her trustee in bankruptcy brought an action to fix the amount of the excess over suitable aliment in which he called her father's testamentary trustees as defenders and craved decree against them for payment of the excess-Held that the action was competent against the testamentary trustees, and decree granted against them for payment of the excess. Shaw's Trustee v. Shaw


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death of intestate-Circumstances in which held that the executry estate still remained in the hands of the executrices qua executrices and had not vested in them qua next-of-kin.

Brown's Executor v. General Accident, Fire,

and Life Assurance Corporation Limited . 11 Executor Nomination - Executor-nominate Substitution of executors-A husband and wife executed a mutual settlement in which the survivor was nominated to be the executor of the first deceaser, and power was reserved to each of the spouses to alter its provisions. The husband predeceased, leaving a holograph document subsequent in date to the mutual settlement, in which he bequeathed his whole estate in the manner therein specified "to come into effect on the death of the survivor" and nominated certain persons to be his executors. The wife was confirmed as executrix-nominate on her husband's estate, but died without having completed the administration of it. A petition for confirmation as executors ad non executa was presented by the persons nominated in the holograph document executed by the husband-Held that they were entitled to be appointed.

Smith and Others-Petitioners


Expenses-Taxation-Sheriff Court-Higher or lower scale Value of cause Claim and counter-claimTime for application for determination of scaleC.A.S., M, ii., 1 and 2-An action was brought for £35 in name of damages. The defender counter-claimed for £45. The defender was assoilzied and decree given in his favour for the amount of his counterclaim and expenses. The scale of taxation was not specified and no motion was made for taxation on the higher scale. The Auditor taxed the defender's account on the higher scale. The pursuer objected to the Auditor's report-Held that the value of the cause was the total sum at issue between the parties, that as the sum of the claim and counter-claim exceeded £50 the higher scale was applicable, and objection repelled-Held further, that in any event a motion for expenses on the higher scale could be competently made by the defender after taxation of the account of expenses, and that in the circumstances it should be given effect to. Murphy v. Muir


Gaming and betting-Glasgow Police (Further Powers) Act, 1892, section 15-Power to search for and seize money, etc., in premises kept for betting-Right to forfeit money seized-Seizure of money found on person during search in police office- DefenderTreasurer of police-In an action brought against the treasurer of police of Glasgow for delivery of a sum of money taken from the pursuer during a search of his person in a police office, and forfeited upon his conviction for keeping a house for betting purposes, held (1) that the treasurer of police, being in possession of the sum alleged to be the property of the pursuer, could competently be sued for delivery thereof; (2) that the pursuer's remedy was not by way of setting aside the conviction; and (3) that in order to justify the forfeiture the onus was on the defender to shew that the money was found and seized within the betting house within the terms of the Glasgow Police (Further Powers) Act, 1892, section 15.

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67 Heritable Property-Bounding title-Sea-flood-Fluctuating boundary-Operations upon Foreshore-Right to exclude intruder between property and the seaTitle to sue-Held that the proprietors of certain subjects of which the seaward boundary was the sea

Executor-Duties and liabilities-Next-of-kin appointed executrices-dative of intestate Claim by creditor

against executry estate more than six months after

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Hiring Horse-Liability of hirer-Pony placed by hirer in field along with strange ponies and kicked by one of them-Relevancy-The hirer of a pony turned it out into a field with other ponies which were strangers to it. One of them kicked and injured it. In an action for damages the owner averred that it was common knowledge that strange horses placed together had a tendency to kick, but did not aver either that the hirer or his servants knew that any of the ponies in the field had a propensity to kick or was of a particular class likely to do harm, or that there was any circumstance rendering any of the ponies dangerous for the time being-Held that there was no relevant averment of negligence. Boyle v. Scott

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Insurance Industrial assurance Proposal form filled in by person employed by society-Misstatements in proposal form-Industrial Assurance Act, 1923, section 20 (4)-A proposal form for an industrial assurance contained the following question: "What illness, if any, has proposed suffered from?" The answer, which was inserted by an agent of the society, was "None." The form also contained a declaration that the answers were true, and (whether written by proposer or by anyone on his behalf) he accepted full responsibility, that no material information had been withheld, and that if anything contrary to the truth was stated therein the policy should be void. It was not proved that the question was put to the proposer before the answer was inserted, or that he had read, or had read over to him, the answer and declaration before he signed the form. The form was signed by the proposer on 11th February 1926. The proposed had, in fact, suffered some six weeks before from cerebral hæmorrhage, and died in July 1926. There was no evidence as to the state of the proposed's health in February 1926. The society refused payment, but did not aver or plead fraud-Held (1) that proviso (b) of subsection (4) did not apply, in respect that there was no evidence as to the state of the proposed's health at the date of signing the proposal; and (2) that the policy was not voidable on the ground of fraud, since fraud was neither averred nor pled, and, in any case, was not in the circumstances proved. Loftus v. Co-operative Insurance Society Limited


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which may be proved by accused-Shops (Early Closing) Acts, 1912 to 1921-Order of 26th April 1917-The Order of 26th April 1917 provides that shops must be closed for the serving of customers not later than 8 p.m., but that the Order shall not prevent the sale after the closing hour of newly cooked provisions to be consumed off the premises. The occupier of a shop was charged with having after 8 p.m. sold boiled beef, "the said beef not being newly cooked provisions for consumption off the premises." It was objected to the relevancy of the complaint that the complainer was bound to state what were newly cooked provisions-Held that, as the provision in regard to newly cooked provisions was an exception which the accused might prove, it need not be specified in the complaint. Christie v. Gooseman .


Justiciary Statutory offence-Hackney carriage Roads Act, 1920, section 11 (2)-Hackney Motor Vehicles (Seating Capacity) Regulations, 1927, paragraph 3 (1), proviso ii-A vehicle licensed as a hackney carriage to seat not more than fourteen persons contained, in addition to a driver's seat and seats for fourteen passengers, a tool box with an upholstered lid in the front of the vehicle, further forward than and to the left of the driver's seat, such that it could be used as a seat for the conductor when the folding door of the vehicle was shut-Circumstances in which held that the seat was "alongside" the driver's seat, and that the fact that the conductor voluntarily gave up his seat to a passenger did not involve the proprietor of the vehicle in a breach of the Roads Act, 1920, section 11 (2).

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Landlord and tenant-Agricultural Holdings (Scotland) Act, 1923-Claim by landlord for compensation for deterioration of holding-Particulars of claim-Time for intimating-Two months expiring on Sunday-A tenancy expired on 11th November 1924. The landlord, by letter dated 25th October 1924, intimated to the tenant that he intended to claim compensation for deterioration through the failure of the tenant to cultivate the holding properly. No particulars of the claim were at that time sent. On 10th January 1925 the landlord's agents posted a letter to the tenant's agents which was not delivered till the 12th, the 11th being a Sunday-Held that the particulars were not given to the tenant within two months of the termination of the tenancy. Scott v. Scott


Landlord and tenant-Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, section 2 (1) (a) and (5)-Permitted increase in rent-Structural alteration-A house had no sanitary convenience except an earth-closet situated apart from it. The landlord, in 1925, built a water-closet on to the house -Held that this building was a structural alteration not a repair, and that the landlord was therefore entitled to increase the rent by an amount not exceeding 8 per cent. of the expenditure. Free v. Callender's Trustees 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-Alternative accommodation available on terms affording security of tenure reasonably equivalent to the security afforded by the Act-Houses erected by Local Authority in compliance with the provisions of the Housing (Scotland) Act, 1925, available for tenant-Conditions of let of Local Authority houses prohibiting subletting-Held that a Local

Authority house afforded security of tenure reasonably Landlord and tenant-Removing-Increase of Rent and equivalent to that afforded by the Act. Thomson v. Brady


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, and the Prevention of Eviction Act, 1924, section 1-Restriction on right to possession-Dwelling-house required by landlord for himself-Hardship-Circumstances in which it was held that greater hardship would not be caused by refusing to grant an order for possession than by granting it. Naysmith v. Maxwell


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, and the Prevention of Eviction Act, 1924, section 1-Restriction on right to possession-Provision of alternative accommodation-Tenant taking lodgers-Notice to quit a house to which the Acts applied having been given, the landlords, who desired to occupy the house themselves, offered as alternative accommodation a smaller house, which would have been sufficient for the tenants, but was not sufficient to allow of their keeping lodgers. The tenants were in the habit of taking lodgers-Held that alternative accommodation meant accommodation for all the persons who usually and properly resided with the tenants, including lodgers where they were in the habit of taking them, and decree of removing refused. Hush v. Murray


Landlord and tenant-Lease Urban subject-Notice of termination of tenancy-Form of notice Notice giving tenant option of buying house-Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), section 37, First Schedule, Rule 112, Form J-A letter from the landlord's agent not following the lines of Form J and containing an offer to sell the house to the tenant was founded on as a notice of termination of tenancy-Held that, as the notice contained all the requisites of Form J, as the offer to sell was distinct from the notice to quit, and as the tenant had not been misled or suffered injustice, the notice was good.

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Landlord and tenant-Rent and Mortgage Interest (Restrictions) Acts, 1920 to 1925-House to which Acts apply-Whether occupier a tenant or a servant of the owner-A company gave to one of its servants the occupation of a house which it owned, subject to rules. The rules provided, inter alia, that the wages of the workman should be liable to deductions for the rent of any house occupied under the company, and that the workman should be bound, immediately on the termination of his employment, to remove from the house without warning. The workman left the employment of the company in 1924, but remained in occupation of the house and paid 4s. 7d. a week to the company in respect of his occupation-Held (1) that the original contract was a contract of service running side by side with a contract of tenancy; (2) that after the workman left the service of the company his con

tract was entirely one of tenancy; and (3) that for both these reasons the provisions of the Rent and Mortgage Interest (Restrictions) Acts applied to the house.

Young's Paraffin Light and Mineral Oil Company Limited v. Moore


Mortgage Interest (Restrictions) Act, 1923, section 2 (1) and (3)-Houses to which Acts apply-Decontrol of house coming into possession of landlord -"Actual possession "-A house was let in 1918. In 1919 the tenant became ill, and the landlord, who was his stepfather, allowed him to stay on rent free. In 1925 the tenant resumed payment of rent, and in 1926 the landlord raised an action of removingHeld that the landlord had never had actual possession of the house, and that the house was therefore still one to which the Acts applied. Park v. Somerville


Landlord and tenant-Restriction on right to possession -House partly used as business premises-Lodginghouse Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. V. cap. 17), section 12 (2) (ii)-Premises consisting of some twenty rooms were let. The tenant and his family lived in four rooms, the remainder being used for lodgers-Held that the question whether the tenancy was protected by the Act depended on the real, main, and substantial purpose for which the premises were let and used, that the facts admitted shewed that they were let as a lodging-house in which the business of lodging-house keeper was to be carried on, and therefore that the tenancy was not protected. Kirk's Trustees v. Murray .


Landlord and tenant-Restriction on right to possession— House reasonably required by landlord-HardshipRent and Mortgage Interest Restrictions Act, 1923, section 4 Prevention of Eviction Act, 1924, section 1 -A market gardener bought, in 1919, a house adjoining his market garden, but as the tenant in possession refused to leave he bought a house one mile and a quarter from the garden for his own occupation. The distance of his residence from the garden endangered his health and prevented proper oversight of the garden. He offered the tenant his own residence as alternative accommodation, the two houses not being dissimilar in point of accommodation. The tenant objected on grounds of amenity and the additional distance from town-Held that the house was reasonably required by the landlord for his own occupation, and that greater hardship would be caused by refusing to grant an order for possession than by granting it, and decree of removing granted. Macfarlane v. Murray Lyon


Landlord and tenant-Termination of lease-Conventional irritancy-Failure by tenants to pay on demand rents and lordships due-Demand for sum largely in excess of amount actually due-A mineral lease provided that if the tenants failed in the regular payment of the fixed rent or lordship, then, after seven days' notice in writing demanding payment of the sums due, the lease might in the option of the landlord be held as having become void, and that such nullity should not be purgeable by payment after the exercise of such option. The landlord demanded in writing a sum of £3013. It was proved that the sum actually due at the date of the notice was about £1755-Held that the lease had not been effectually terminated. Duke of Argyll v. Campbeltown Coal Company Limited

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Partnership-Bankruptcy-Sequestration of firm and of the partners as such partners-Title to sue a partner as an individual for debt due by the firm-The estate of a firm and of the partners as such partners were sequestrated. Thereafter a creditor of the firm raised an action against one of the partners as an individual for payment of a sum for which the creditor held a

decree against the firm-Held that the right of
action had passed from the creditor to the trustee
on the sequestrated estate of the firm and that the
action was therefore incompetent.

Thom v. M'Kie

-Held that no nuisance had been committed, and interdict refused.

Cupar District Committee v. Gysels


59 Reparation-Killing cat caught in trap-A gamekeeper
found a cat caught in a trap and killed it. It was not
proved that the cat was at the point of death or that
it was suffering great agony-Held that the game-
keeper was not entitled to kill the cat and that its
owner was entitled to damages.
Ross v. Cunningham

Payment-Part payment tendered "in full satisfaction "
-Payment retained by creditor-Discharge-Goods
were sold and delivered to a purchaser, who, being
dissatisfied with the goods, delayed payment of the
price of £4, 12s. After a request by the sellers for
payment the purchaser sent his cheque for £4 to the
sellers accompanied by a letter stating: "If, how-
ever, you are prepared to accept Four pounds in full
settlement of account, I enclose a cheque, which, if not
accepted, you will kindly return." The sellers cashed
the cheque and sued for the balance of the price-Held
that the acceptance and cashing of the purchaser's
cheque in the circumstances operated a discharge in
full of the sellers' claim.
Errington Limited v. Hare.

Process Appeal -Competency


Merchant Shipping

(International Labour Conventions) Act, 1925, sec-
tion 1-Action to recover wages under Act-Question
of the competency of appeal considered.

Kerr v. Annandale Steamship Company


Process-Plurality of pursuers-Two pursuers aggrieved by the same act-One pursuer suing for damages for breach of contract, the other for damages for negligence A landlord employed a plumber to carry out certain work. Flooding occurred which was alleged to be due to the fault of the plumber. An action was raised for damages against the plumber in which the pursuers were the landlord suing for damages to the premises and the tenant suing for damages to the contents-Held that the action was competent. The Baptist Union of Scotland and Henry Nelmes & Company v. William Anderson Limited


Right in security-Rights of creditor-Creditor holding one security for two loans to the same debtorApplication of proceeds of security to worse secured debt-A man and his wife borrowed £1000 and granted a bond therefor, together with a disposition by the wife of certain heritage and an assignation by the husband of an assurance policy on his own life, both in security. Four years later the husband borrowed a further sum from the same lender and assigned the same assurance policy in security. On the death of the husband the creditor uplifted the proceeds of the policy and applied them pro tanto in payment of the second loan-Held that he was entitled to do so. 50

Moffat's Trustees v. Lord Advocate

31 Right in security-Security over moveables-PledgePawnbroker-Pledge of stolen goods-Restitution on terms-Civil remedy-Pawnbroker's Act, 1872 (35 & 36 Vict. cap. 93), section 30-In an action by a firm of clothiers for recovery from a firm of pawnbrokers of goods belonging to the clothiers stolen from them by one of their employees and pledged, the pawnbrokers pleaded that the pursuers should be found entitled to the goods only on payment of onehalf of the amount advanced by the defenders on the security of the goods, and averred that this division of loss was the practice of the Criminal Courts under section 30 of the Pawnbrokers Act, 1872-Held that this defence was irrelevant as the section related only to criminal proceedings, and that the alleged practice of the Criminal Courts was not a relevant consideration in a civil action by the owners for recovery of their property.


Public health-Nuisance-Choked ditches-Mosquitoes-
Public Health (Scotland) Act, 1897, section 16 (2)—
Ditches were so choked by vegetation that the water
lay in them or was thrown on adjacent ground.
The ditches and adjacent ground became a breeding-
place for mosquitoes, which invaded a neighbouring
residential district and attacked the inhabitants.
The bites caused pain and swelling, with, in some
cases, temporary incapacity-Held that a nuisance at
common law existed, that in order to shew that a
common law nuisance constituted a nuisance under
the Public Health Act it was not necessary to prove
that it was definitely injurious or dangerous to health,
. but that it was sufficient to prove that it might reason-
ably be connected with public health, and that the
above facts constituted a nuisance under the Public
Health Act-Held further that, although there was
nothing foul or unpleasant about the ditches them-
selves, they nevertheless, as breeding-places for
mosquitoes, constituted a nuisance.
Upper District Committee of the County of
Renfrew v. Woddrop's Trustee


Public health-Public Health (Scotland) Act, 1897, section 16 (6) Nuisance" Work, manufactory, trade, or business injurious to the health of the neighbourhood "-The owner of a mill allowed smells to escape from his mill. In an application by the Local Authority for interdict it was proved that the smells were offensive, but not that they were injurious to health

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Sale-Auction-Duty of auctioneer to seller-Duty to
account for price of article sold-A cow was delivered
to an auctioneer to be sold, and was sold, by him. The
buyer was allowed to take possession of the cow with-
out paying the price. Two days later the buyer re-
jected the cow and returned it to the auctioneers, who,
after giving notice to the original seller, resold it at a
lower price. In an action by the seller against the
auctioneer for payment of the price at which the cow
was originally sold, held that it was the duty of the
auctioneer to recover the price from the buyer when
the cow was sold to him and to account for it to the
pursuer, that after the fall of the hammer the auc-
tioneer ceased to be agent for the seller, and therefore
that he had no implied authority to resell the cow,
and decree granted.
Welsh v.



Sale Breach of contract-Damages-Duty of buyer to inspect goods-Duty of buyer to inform seller timeously of claims against the buyer by buyers from him-A bought from B, in April 1924, a quantity of seed potatoes, it being an implied condition that the potatoes were Majestics. In fact they were of an inferior variety. A planted the potatoes and sold part of the crop as Majestics to C. While it

was difficult to tell the variety from an examination of the potatoes themselves, A could easily have seen from the colour of the flower while the crop was growing in 1924 that they were not Majestics. In February 1925 C expressed a doubt to A whether the potatoes were Majestics, but A did not communicate this to B. C subsequently resold the potatoes as Majestics. C, having had to pay damages to his purchasers, claimed against A, who, having satisfied his claim, brought an action against BHeld that it was A's duty, before selling the crop, to satisfy himself by inspection, either personal or by the inspectors of the Board of Agriculture, while the potatoes were growing, that they were Majestics, and that he was not entitled to rely on the implied condition of the sale to him; that, even if he were not so bound, it was his duty when he knew of C's doubts either to have the potatoes inspected by an inspector or to communicate with B; that the true cause of the loss was A's failure in his duty; and therefore that B was not liable in damages. Murray v.


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Ship Seaman Rights of seaman on loss of ship Merchant Shipping (International Labour Conventions) Act, 1925, section 1—A seaman, on 31st December 1925, signed articles to serve on a voyage not exceeding one year's duration within certain limits, to end at such port (within home trade limits) as might be required by the master. The ship was lost on 10th January 1926 while lying ready to discharge a cargo. The owners had not then obtained a fresh cargo for her, and it was unlikely that they would be able to do so at or near the port of discharge. The seaman was brought to a home port and paid off on 22nd January. Up to 10th March he had not obtained employment. There were many unemployed seamen at the time-Held (1) that the employers had failed to prove that the seaman's unemployment

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Merchant Shipping (International Labour Conventions) Act, 1925

Pawnbroker's Act, 1872

Prevention of Eviction Act, 1924

Public Health (Scotland) Act, 1897
Roads Act, 1920

Sheriff Courts (Scotland) Acts, 1907 to 1913 4, 25, 65
Shops (Early Closing) Acts, 1912 to 1921
Summary Jurisdiction (Scotland) Act, 1908



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Superior and vassal-Casualty-Composition-Special stipulation as to composition-Liability of impliedly entered vassal-Conveyancing (Scotland) Act, 1874 (37 & 38 Vict. cap. 94), section 4-The superiors of certain subjects granted a charter of confirmation to a corporation in 1788. The reddendo clause provided that the vassals should pay, so long as the subjects remained the property of the corporation and till such time as another vassal should enter, £8 in name of composition every twenty-five years. The corporation sold the subjects in 1870, and eventually, in 1880, s company became the proprietors. None of the intermediate proprietors before the Act of 1874 entered with the superiors. An action was raised by the superiors against the company for payment of compositions. At the date of raising, action the corporation was still in existence-Held that, as the corporation was still the vassal, the company was not liable for payment of the casualty, notwithstanding its implied entry under section 4 of the Act of 1874. Governors of George Heriot's Trust v. Drumsheugh Baths Club Limited



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