v. Campbell

9,

pleases. Assuming that is a legal mode whereby an intending seller may oblige himself, it is certainly not a very probable arrangement, or, I think, a very businesslike proceeding on his part, and the presumption must certainly be against such an interpretation of a business matter which parties are transacting. The view that parties have entered into a contract of sale is very much more consistent with what is usual in the business of life, and is in the absence of adverse circumstances, I think, a probable interpretation of the matter, especially when the word agreement is used, as it is in this case. I have no hesitation in coming to the conclusion that the thing which the parties had agreed upon was a sale. Now, if that be so, there not being the conjoint consent of seller and purchaser which the law holds to be necessary for a contract of sale, we have not here a complete expression of that contract in the form which the law requires. We have some evidence of consent, but that evidence is insufficient for the purpose of binding the parties according to the principles of our law to a sale of heritable property. I am therefore of opinion that the Lord Ordinary has taken the right view of the case.

The Court adhered.

Counsel for the Pursuer-C. S. DicksonSalvesen. Agents-Macpherson & Mackay, W.S.

Counsel for the Defender-W. C. Smith -Cullen. Agent-T. Temple Muir, S.S.C.

REGISTRATION APPEAL COURT.

Monday, November 23.

(Before Lord Adam, Lord Trayner, and Lord Kincairney.)

FALCONER v. M'GUFFIE. Election Law-Service Franchise.

The

A butler in the employment of a firm of drapers, who by virtue of his employment occupied for his exclusive use a bedroom in the firm's premises, was entered by the Assessor upon the roll. A voter on the roll objected to the entry, on the ground that the butler inhabited a dwelling-house in virtue of his employment which was also inhabited by a person under whom he served in this employment. premises consisted of a tenement of several flats, the ground flat being the business premises, and the upper flats devoted to sitting-rooms and bedrooms for the firm's employees. manager or buyer and shop-walker of the firm, who had general supervision of the domestic arrangements provided for the employees, occupied rooms on the second flat, the butler's room being on an upper fiat. The flats were all reached by a common stair, but had

A

each separate doors. Except the common stair there was no communication between the flat occupied by the manager and that occupied by the butler.

Held (1) that the dwelling - house occupied by the butler was not occupied by the manager; (2) by Lord Adam and Lord Trayner-Lord Kincairney expressing no opinion-that the manager was not the person under whom the butler served; and the objection repelled.

At a Registration Court for the burgh of Edinburgh, held at Edinburgh on the 10th day of October 1891, James Falconer, Writer to the Signet, residing at 42 Heriot Row, Edinburgh, a voter on the roll, objected to the entry on the voters' list of the name of James M'Guffie, residing at 8 South St David Street, Edinburgh.

The said James M'Guffie was entered by the Assessor on the voters' list for the burgh of Edinburgh, West Division, as tenant and occupant of a house No. 8 South St David Street.

Falconer objected that M'Guffie inhabited a dwelling-house in virtue of his employment, which dwelling-house was also inhabited by a person under whom M'Guffie served in this employment.

case.

The Sheriff repelled the objection, and was required by Falconer to state a special The case set forth that it was proved that M'Guffie was a butler in the employment of Charles Jenner & Company, drapers, Princes Street and South St David Street, Edinburgh, and that in virtue of his employment he occupied and had occupied for his exclusive use a bedroom in one of the two upper flats of the tenement 8 South St David Street for the period of twelve months prior to 31st July 1891. That the tenement 8 and 12 South St David Street had originally consisted of several houses which had been altered to suit the business requirements of Jenner & Company. That the first or street and sunk flats were occupied as part of their shop or warehouse; that the second flat, being the flat above the street flat, contained a dining-hall for the assistants in the employment of the firm, the rooms consisting of a dining-room, sitting-room, bedroom, and bath-room allotted to Mr Cormack, a manager or buyer and shopwalker in the employment of the firm, a sitting-room for the female assistants, and another room; that the third flat contained kitchens, servants' rooms, and bedrooms for the female assistants; that the fourth flat contained a library or readingroom, smoking-room, and other rooms; and that the fifth and attic flats, being the two upper flats, were entirely occupied by bedrooms for the assistants or employees of the firm, of which bedrooms M'Guffie occupied one. That entrance was had to the whole tenement, including the shop flat, by the door 8 South St David Street, which gave access to a stair on which at each landing there was a door opening into the corresponding flat; that this stair was the only access to the fourth and fifth and attic flats; that when the door was

closed the flat was shut off from the rest of the tenement, except in the case of the second and third flats, between which there was an internal stair; that there was a stair from the second flat to the door entering at 12 South St David Street, but that this door was not used. That Mr Cormack was one of the managers in the employment of the firm of C. Jenner & Company, but acted under the direct supervision of the partners of the firm, who themselves managed the business; that in the shop he had charge of the fancy department of the business of C. Jenner & Company; that the assistants in his own department were subject to his orders; and that if shorthanded he could require assistance from other departments in the same way as the managers of these departments, but otherwise had no authority over the assistants in the other departments. That Mr Cormack had no power to engage or dismiss assistants, but in these matters reported to the firm; that Mr Cormack was, further, manager of the domestic establishment, and in this capacity had a general supervision of the whole of the domestic arrangements provided for the assistants in the tenement 8 and 12 South St David Street. That he had charge of the keys of the shop and tenement; that he had power to engage and dismiss the domestic servants required for the establishment, including the said James M'Guffie; that he had access to every part of the tenement, and had power, in the event of grave misconduct, to expel an assistant from the tenement for the night, but must immediately report having done so to the firm; that when he pleased he could use the dining-hall and readingrooms provided for the assistants, and had also the use of the kitchens and servants, as well as the exclusive use of the rooms allotted to him as aforesaid; but that he did not use or for his own purposes in any way occupy the fifth and attic flats of said tenement, or any part of them. That Mr Cormack was enrolled under the service franchise as tenant and occupant of 12 South St David Street. That house-duty was paid for the whole tenement, including the shop, as one subject. The case further stated that the Sheriff held that whether Mr Cormack was or was not a person under whom the voter served in his employment, that he did not inhabit the same dwellinghouse as the voter.

The question of law for the decision of the Court of Appeal was-"Whether in respect of the foresaid facts the said James M'Guffie is entitled to be entered on the roll in respect of the qualification set forth in the 3rd section of the Act 48 and 49 Vict. cap. 3?"

At advising

LORD ADAM-The question raised in this case is, whether the claimant M'Guffie does not as a butler in the employment of Charles Jenner & Company occupy premises in No. 8 South St David Street? Certain facts are set forth as to the premises, the employment of the claimant,

and as to the employment of a manager called Cormack. Having set forth these facts, the Sheriff states that he held that Cormack did not inhabit the same dwellinghouse as the voter, and therefore admitted the claim. The question arises entirely under the 3rd section of the Act of 1884. Under that section the house in respect of which the claim is made is not to be inhabited by any person under whom the claimant serves. That involves the consideration of two questions. The first of these is, whether the claimant is in the service of Cormack? I am clearly of opinion that he is not. I think he is Messrs Jenner's butler, and in their service. Cormack's position is that of a manager. In that capacity he occupies a certain flat in this house, and has a power of superintendence over the persons in the house, including the claimant. That does not make the claimant a servant of Cormack in the sense of the Act. The appeal thus clearly fails upon the first ground.

That being so, the other question raised in the case does not require to be discussed. But I am equally clear with the Sheriff that Cormack occupies a different house in the sense of the Act from that occupied by the claimant. These appear to be large premises of four or five flats, and Cormack occupies the second flat, which constitutes his separate premises. In his character of manager he superintends the rest, but then the claimant has his premises in the fifth flat, which is entirely shut off from any other flat in the house.

LORD TRAYNER-I also agree with the Sheriff. I think he has pronounced a sound judgment upon the ground on which he puts it. The statement of facts shows clearly that the claimant does not occupy the same house as Cormack. But apart from that, I agree also with your Lordship that M'Guffie is not employed in any office, service, or employment under Cormack in the sense of the statute.

LORD KINCAIRNEY-I concur entirely in the judgment of the Sheriff, and I do not see any reason for going beyond it. I reserve my opinion upon the other question, but I would like to say that I cannot read the words "under whom such man serves in such office" as meaning nothing but employer. I think a person may serve somebody other than his employer. I rather think Cormack is not in such a position in this case, but I give no opinion.

The Court dismissed the appeal.

Counsel for the Appellant-Asher, Q.C.A. J. Young. Agent James Falconer, W.S.

Counsel for the Respondent-DundasC. N. Johnston. Agent George Inglis, S.S.C.

Thursday, December 10.

(Before Lord Adam, Lord Trayner, and Lord Kincairney.)

M KENZIE v. WATT.

Election Law County Franchise perty Qualification - Disposition Lands in Security.

Pro

of

Bankrupts who had entered into a composition arrangement with their creditors disponed certain lands, heritably and irredeemably, to the person who became security for payment of the composition. The disposition declared that the subjects were conveyed in security, and for payment to the disponee of moneys advanced or to be advanced in payment of the creditors, and of certain expenses in connection with the sequestration. Power of sale was conferred on the disponee, and he was taken bound to account for his intromissions, and to pay over any balance to the bankrupts. Held that the disponee was not entitled to be put on the roll as proprietor of the subjects.

At a Registration Court for the county of Bute, held at Rothesay on the 12th day of October 1891, John Watt, net manufacturer, Kilbirnie, claimed to be enrolled on the register of voters for the said county as proprietor of houses in Roslin Place, Mount Pleasant Road, Rothesay.

There was produced in support of the claim a disposition of the subjects in the claimant's favour dated 14th, 15th, and 18th July and recorded in the Register of Sasines 25th November 1879. Said disposition bore a ten shillings stamp, and its tenor so far as material was as follows-"We, John Thorburn and Thomas Thorburn, fishermen in Rothesay considering

that the estates of the said John and Thomas Thorburn, fishermen, Rothesay, in the county of Bute, as a company, and of John Thorburn and Thomas Thorburn, both fishermen in Rothesay, aforesaid, the sole partners of said company, as such partners and as individuals, were sequestrated by the Lord Ordinary officiating on the Bills in the Court of Session upon the third day of April Eighteen hundred and seventy-nine, and that upon the fourteenth day of said month John M'Ewan, accountant, Rothesay, was elected trustee on the said sequestrated estates, and his nomination confirmed by the Sheriff of the sheriffdom of Renfrew and Bute on the eighteenth day of said month; that at a meeting held upon the fourteenth day of May following, after the bankrupt's examination, they made offer of a composition on their whole debts of five shillings and sixpence per pound, payable by two equal instalments at two months and four months from the the date of their discharge, and agreed to pay or provide for the whole expenses attending the sequestration, and the remuneration to the trustee, and proposed John Watt, net manufacturer, Kilbirnie, as their security; that the creditors and manda

...

tories for creditors present at the last mentioned meeting unanimously resolved that the offer and security should be entertained for consideration, and at another general meeting of creditors held on the seventh day of June following, after due notice by advertisement and circulars, for the purpose of deciding on the bankrupts' offer and security proposed, the same were unanimously agreed to and accepted by the creditors and mandatories of creditors present; and considering also that the said John Watt agreed to become cautioner for payment of the said composition on the distinct arrangement that we, the said John Thorburn and Thomas Thorburn, should convey and dispone to him our whole heritable property of every description, as after mentioned. . . Therefore, in implement and pursuance of the said arrangement, we. .. do hereby assign and dispone to and in favour of the said John Watt, and his heirs and assignees whomsoever, heritably and irredeemably - First [here follows description of subjects]. . with entry at the term of Whitsunday last, notwithstanding the date hereof; and we all, with joint consent and assent, and taking burden as aforesaid, assign the writs, and have delivered the same according to inventory annexed and subscribed as relative hereto; and we all, with joint consent and assent, and taking burden as aforesaid, assign the rents; and we, with joint consent and assent, and taking burden as aforesaid, grant warrandice, but excepting always therefrom the bonds and dispositions in security existing over the said subjects at the date of said sequestration, amounting to three thousand six hundred and eighty pounds sterling or thereby : Declaring always that the said subjects are disponed, and this conveyance is granted, to the said John Watt and his foresaids in real security, and for payment to him and his foresaids of all sums of money he has advanced and may advance or pay to the said just and lawful creditors of the said John and Thomas Thorburn of the debts due to them respectively in the event of our failing to pay the same, and also of all interest due thereon, and of all expenses of every kind and description which the said John Watt may incur in any manner of way, including the expenses of the sequestration and the trustee's remuneration, and the sum of eightyfive pounds sterling or thereby which is claimed by Daniel Macbeth, writer, Rothesay, as a preferable claim, which our said disponee is hereby authorised to pay, and including also the expenses of every kind connected with the negotiations for and the arrangement between us and the said John Watt, also the expense of this conveyance and the completion of the said John Watt's title, insuring the subjects against loss by fire, the factor's commission for collecting the rents, and generally everything which the said John Watt may incur in relation to the premises: Declaring that an account thereof to be made up by the said John Watt, with his oath, if required, as to the accuracy of

the same shall be conclusive as against us and any one or more of us to the exclusion of all other proof; and we, with joint consent and assent, and taking burden as aforesaid, do hereby authorise and empower the said John Watt immediately to sell the foresaid subjects and others above described and disponed, and that either by public roup or private bargain, and that either without advertisements or after such advertisements, and on such terms and conditions as he may think proper: Declaring always that purchasers and others shall have no concern with the application of the prices to be paid by them, and the simple discharge by the said John Watt or his foresaids shall be sufficient, and be as binding as if granted by all of us; but declaring always that the said John Watt shall be bound to account to us for his intromissions in the premises, and in the event of there being any balance due by him, to be ascertained as before provided, the same shall be paid us, whose acceptance shall be a sufficient discharge to our said disponee for his sole intromissions in the premises; and we, with joint consent and assent, and taking burden as aforesaid, consent to registration hereof for preservation and execution."

It was admitted that the yearly value of the subjects as appearing on the valuation roll was £200, and that their clear yearly value to the claimant, after making the statutory deductions, and paying interest on the bonds affecting them, was upwards of £10.

John M'Kenzie, blacksmith, 60 High Street, Rothesay, a voter on the roll, objected to the claim being admitted on the ground (first) that the writ produced was improperly stamped as a conveyance; and (second) that the claimant was ex facie of his title not proprietor of the subjects, but merely a security holder.

The Sheriff (CHEYNE) admitted the claim. M'Kenzie took a special case for the Court of Appeal.

The question of law for the decision of the Court of Appeal was-"Whether the writ produced is sufficient to support a claim to be registered as proprietor?

The appellant cited Jardine v. M'Culloch, 4 Macph. 138; Monteith v. Scott, 7 Macph. 300.

The respondent cited Anderson v. Niven, 8 R. 4.

At advising

LORD TRAYNER-The respondent claims to be registered as a voter in the county of Bute as proprietor of certain houses situated in Rothesay. He produced to the Sheriff in support of his claim the disposition which is printed at the end of the case. The appellant objected to the respondent being registered as a voter, on the ground that he was not proprietor as alleged, that his right was only that of a heritable creditor, and that the disposition founded on was not duly stamped. The Sheriff repelled these objections, and admitted the claim. The question submitted to us is, whether the disposition produced is

sufficient to support the respondent's claim?

The form of the deed in question appears to be somewhat unusual. It narrates that the respondent had become cautioner to the creditors of John and Thomas Thorburn (the disponees) for a composition offered by them under their sequestration, and that he had done so on the distinct arrangement that they, the disponees, should convey and dispone to him their whole heritable property of every description. Accordingly the disponees "assign and dispone to and in favour of the said John Watt and his heirs and assignees whomsoever, heritably and irredeemably," the subjects there described, being the subjects in question. The usual clauses of assignation of rents and writs and of warrandice then follow, and so far the deed is in the form of an absolute conveyance. But the deed proceeds to declare that "the said subjects are disponed and this conveyance is granted to the said John Watt and his foresaids in real security, and for payment to him and his foresaids" of all sums of money he or they may advance or pay to the creditors of the disponees, or may pay in reference to the property (such as insuring the property, collecting the rents, &c.), or in connection with the arrangement out of which the disposition had proceeded. The deed then confers on the disponee an unlimited power of sale, declaring that the purchasers from him shall have no concern with the application of the price, but declaring also that "the said John Watt shall be bound to account to us for his intromissions in the premises," and to pay any balance which on such intromissions he may be found to be due.

The deed which I have thus described is certainly of an unusual style, for it mixes up in the one deed the essentials of two deeds, different both in character and effect. It is an absolute conveyance in so far as it conveys "heritably and irredeemably" the subjects described; it is a disposition only in security, because it so declares in express terms, and takes the disponee bound to account for his intromissions; because, also, it makes the disponee liable for the expense of insuring the property, collecting the rents, &c., which of course under an absolute conveyance of property would be charges falling to be borne by the proprietor, the disponee. It is noticeable, on the other hand, that the deed does not contain in terms any personal obligation on the part of the disponees to repay to the disponee any money he may pay or advance on their behalf, and it is certainly unusual to find a security writ without such an obligation. It is (according to the usual and ordinary form) in security, and for the more sure fulfilment of such a personal obligation that the real or heritable security is given. The want of this expressed personal obligation, however, does not, in my opinion, exclude the view that the writ is or may be only a security writ. For the deed expressly bears that the respondent had become cautioner for the composition which the Thorburns had offered to and

which had been accepted by their creditors, and as a cautioner has always a claim against the principal debtor for reimbursement of any sum paid under the cautionary obligation, I think that obligation to reimburse or repay must be assumed to exist although it is not expressed in the deed before us. Notwithstanding of the difficulties which the form of this conveyance undoubtedly suggest, its import and effect when taken as a whole seems to me to be sufficiently plain. It is an absolute conveyance with a qualifying back-bond, both given in the same deed instead of being separately executed as is commonly done.

The question therefore comes to be, is the holder of an absolute conveyance qualified by a back-bond, duly recorded (for here the back-bond is recorded along with the conveyance), declaring that the conveyance, in form absolute, is really only a security, a proprietor in respect of such a title under the Act of 1865? That the holder of such a title is proprietor in some sense cannot be doubted. That is made very clear by the decision in the case of The Scottish Heritable Security Company v. Allan, Campbell, & Company, 3 R. 333. In that case the Court held that the holder of an absolute title, even although qualified by a back-bond, was not entitled to use a certain diligence competent only to a heritable creditor. The Court proceeded on the ground that the title which the pursuer relied on did not warrant the diligence he had used; and, dealing with a question of diligence, regarded rather the nature and effect of the title than the reality of the transaction out of which that title sprang. Now, it appears to me, that questions arising under the Representation of the People (Scotland) Act 1868 must be differently regarded. Under that Act (the provisions of which we are now administering) the fact of proprietorship rather than the state of the title is the leading and indeed only consideration. By section 5 it is provided that every man of full age and legal capacity shall be entitled to be registered as a voter who is "the proprietor" of lands of a certain value, "whether he has made up his title or is infeft or not." The Sheriff must register as a voter any claimant who satisfies him that he is the proprietor in fact, although that may not be proved by the production of a formal or feudal title to the subjects. It is certain that the Sheriff could not in other cases proceed on the same ground. For example, in a petition for removing, the only title at which the Sheriff could look (where the pursuer's title was competently challenged) would be the pursuer's infeftment; and no other title would be sufficient. Accordingly, what has to be ascertained here is, what in fact is the claimant's right to the subjects in question. The answer to that on the terms of the deed produced by him is, that he is only a holder of the subjects in security, and not proprietor. The radical title and the proper proprietorship is in the Thorburns. This question seems to have been thus regarded, and decided in accordVOL. XXIX.

ance with this view by the Judges in the Registration Court. Perhaps the most direct authority on this point is the case of Monteath v. Scott, 7 Macph. 300, where the claimant was put on the roll as proprietor of a house which he had purchased, to which, however, he had never obtained a title, and the title to which stood at the time as an absolute title in the name of a property company, from whom the claimant had obtained the advances which enabled him to pay for the property. The claimant was held to be, as in fact he was, the proprietor, while the company's title, ex facie absolute, was regarded as only a security, which again it was in point of fact. In the case of Jardine, 4 Macph. 138, it was decided that a conveyance ex facie absolute could not be qualified as a mere security by the production of an unstamped back-letter so qualifying it, or by the oath of the disponee that the right was in fact a security only. This is only an authority on the point before us inferentially, but in that respect it may be regarded as an authority. For if the production of a duly stamped and recorded back-letter would not have prevailed to reduce the apparent right of proprietorship under an ex facie absolute conveyance to the level of a security merely, the case would probably have been so decided, and the decision on the competency of the proffered evidence would have been unnecessary. The decision in that case was followed in the subsequent case of Skeete v. Stewart, 7 R. 12, where a voter on the roll was objected to on the ground that he had disponed the subjects to another by an absolute convey. ance. The disponee under that conveydisponed that the conveyance, although ex facie absolute, was only a security in fact. The Court held such evidence inadmissible to qualify the conveyance, and struck the voter off the roll as he had divested himself, so far as competently appeared, absolutely of the property. But in giving judgment, Lord Mure observed, "If he (the voter) had at any time got a back-letter declaring that this was simply a trust, no question as to his right could have arisen.' Following what I think has been decided by the cases I have referred to, and for the other reasons I have above given, I think the judgment of the Sheriff should be reversed.

ance

It is unnecessary to say anything as to the alleged insufficiency of the stamp. If this had been necessary, I should have been unable to decide the question as the case stands. It does not, and the deed itself does not, disclose the amount of the consideration in respect of which the deed was granted. Without seeing the exact amount or value of the consideration, it is impossible to say what the proper stampduty should be.

LORD KINCAIRNEY-I concur in thinking that this claim ought not to be admitted. I have never met with a deed like that on which the claim is founded. It is anomalous and self-contradictory, and I abstain from expressing an opinion as to its precise

NO. XVI.