Assignation of Harbour Rates in Security. See Burgh. Assignation of Portion of Bond. See Right in Security. Assurance-Life Assurance-Husband and Wife -Married Women's Policies of Assurance Act 1880 (43 and 44 Vict. c. 26), sec. 2-Destination Different from the Terms of the Statute. The wife of a person who has effected a policy of life assurance will not be deprived of the benefit of the statute because the destination is in favour of his "children, whom failing his widow, whom all failing his own nearest heirs whomsoever," and contains a reserved power to regulate the terms of payment and vesting. Dickie and Others (Dickie's Trustees) v. Dickie and Another, p. 908. Attendance Order. See Justiciary Cases. Authority to Correct Error in Note and ExtractDecree. See Process. Authority to Make Advances on Marriage. See Succession. Balancing of Accounts. See Bankruptcy. Bankruptcy Claim by Undischarged Bankrupt -Appeal-Caution. Held that an undischarged bankrupt, who had lodged a claim in a sequestration which had been rejected, must find caution as a condition of being allowed to proceed with an appeal against the trustee's decision. Stewart v. Gordon (Dunsmore's Trustee), p. 22. Lease-Illegal Preference-Act 1696, c. 5. By agreements purporting to be "minutes of lease," entered into in 1879 and 1880, the trustees of J. P. "let" to J. S. P. certain premises, and the pawnbroking stock therein, J. S. P. being bound to pay a rent of a fixed amount for the premises, and 5 per cent. on the value of the stock handed over to him. It was provided that J. S. P. should keep books showing his intromissions with the business, and that in the event of the stock falling below the value at which it had been handed over to him, the trustees should have a right to enter into possession of the premises and stock, and that J. S. P. should be bound to cede possession thereof on receiving fourteen days' notice. On 24th April 1888 J. S. P. executed deeds of renunciation of the lease in favour of the trustees, who at once entered into possession of the premises and stock of pledges therein. Four days afterwards J. S. P. was sequestrated. Held that under the agreements the trustees parted with the only right they had in the pledges, and only acquired the personal obligation of the bankrupt in a certain event to deliver over to them the pledges then in his possession; and therefore that the deeds of renunciation were ineffectual as granted within sixty days of bankruptcy in satisfaction of a prior debt within the meaning of the Act 1696, c. 5. Walker (Paterson's Trustee) v. Coyle and Others, p. 87. Act 1856 (18 and 19 l'ict. c. 79)—Com putation of Time. Section 67 of the Bankruptcy Act provides "The Lord Ordinary or the Sheriff by the deliverance which awards sequestration shall appoint a meeting of the creditors to be held at a specified hour on a specified day being not earlier than six nor later than twelve days from the date of the Gazette notice of sequestration having been awarded". . . for the election of a trustee and other business. On 5th October a Sheriff awarded sequestration, and appointed a meeting of creditors to be held on 12th October. Notice of sequestration was published in the Gazette on 6th October, being the first publication of the Gazette after the award of sequestration. The meeting was held on the 12th October. The Court held that an interval of six days must elapse after the close of the day of the Gazette notice, and before the commencement of the day of meeting, and appointed a new meeting of creditors to take place. Wilson and Another, Petitioners, p. 176. Bankruptcy-Election of Trustee-Appeal-Competency-Bankruptcy (Scotland) Act 1856 (19) and 20 Vict. c. 79), sec. 71. It was objected to the affidavit and claim upon which a creditor had voted at a meeting for the election of a trustee in a sequestration, that part of it was vouched by a prescribed bill, and that an acknowledgment of indebtedness by the bankrupt endorsed upon the bill, which bore to be dated shortly prior to sequestration, being holograph, did not prove its own date. The Sheriff rejected the creditor's claim to rank and vote for the amount of the prescribed bill, on the ground that the acknowledgment did not bear to be holograph. The result of this decision was to leave the candidate for whom this creditor had voted in a minority, and the Sheriff accordingly declared the opposing candidate to have been duly elected trustee. Held that the Sheriff had not exceeded his jurisdiction, and that his decision was final under the 71st section of the Bankruptcy Act. Farquhar v. Sutherland, June 6, 1888, 15 R. 759, distinguished. Smith v. Wilson, p. 359. Sequestration-Meeting of Creditors Called by Commissioner "with Notice to the Trustee” Notice not Timeous-Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), sec. 98. The Bankruptcy (Scotland) Act 1856, by section 98, provides that "any commissioner, with notice to the trustee, may at any time call a meeting of the creditors." A commissioner called a meeting by a notice in the Gazette, which is published in the evening. Upon the afternoon of the day of publication he sent notice to the trustee by a registered letter, which was not delivered until the following morning. Held that the requirement of the statute had not been complied with, as the notice to the trustee had not been timeously given. Steele and Others v. Strathie, p. 382. Trust for Behoof of Creditors-Title of Truster under Private Trust by Debtor to Sue for Reduction of Illegal Preferences. The accession of creditors does not give the trustee, under a trust voluntarily created by a debtor for behoof of his creditors, the right to sue for the reduction of illegal preferences where the trust-disposition contains no clause specially conferring such right upon the trustee. Collis and Another (Fleming's Trustees) v. M'Hardy, p. 483. Bankrupty-Sale-Husband Selling to Wife the Furniture of their Dwelling-house-Mercantile Law Amendment (Scotland) Act 1856 (19 and 20 Vict. cap. 60), sec. 1-Married Women's Property (Scotland) Act 1881 (44 and 45 Vict. cap. 21), sec. 1, sub-sec. 4. A wife agreed to pay to her husband money from her separate estate to the value of the household furniture belonging to her husband, in return for which the furniture was to be sold by him to her. Payments to an amount exceeding £225 were made by the wife to her husband at various times from January 1886 till December 1890, when the husband wrote, and handed to his wife a "sale-note" acknowledging the payments, and in consideration thereof stating that he had sold her the furniture, which was inventoried at £225. The furniture remained in the joint use and enjoyment of the spouses. On the sequestration of the husband's estates the wife sought to interdict his trustee from selling the furniture. Held, that even assuming a bona fide transaction between the spouses, it was not one which fell within the provisions of the Mercantile Law Amendment (Scotland) Act 1856, sec. 1, and even if the Act had applied, the furniture had been "lent or entrusted" by the wife to her husband and "immixed with his funds" in the sense of the Married Women's Property (Scotland) Act 1881, sec. 1 (4), and was liable to the claims of his creditors. Anderson v. Leith (Anderson's Trustee), p. 598. Lease-Compensation-Balancing of Accounts-Landlord and Tenant. A lease provided that in the event of the tenant becoming bankrupt it should, in the option of the proprietor, become ipso facto null and void, and that in the event of the lease coming to a termination at any time during the currency of let the tenant should be entitled to receive from the proprietor the value of the grain crop and some other articles, as the same should be fixed by arbitration. The tenant died insolvent. After his death none of his representatives desired to carry on the farm, and the landlord entered into possession thereof. Thereafter the tenant's effects were sequestrated, and a trustee was appointed on the sequestrated estate. A reference was entered into between the landlord and trustee under which the valuation of the grain crop, &c., was determined. Held that the landlord having got possession of the grain crop, &c., before the date of the sequestration, was entitled to compensate the amounts due by him under the reference by the debt due to him by the tenant for arrears of rent and interest on improvement expenditure. Anderson (Davidson's Trustee) v. Urquhart, p. 664. Bankruptcy-Cessio-Debtors Act 1880 (43 and 44 Vict. cap. 34), sec. 9-Discretion of Sheriff. A grocer having become insolvent granted a trust-deed for creditors, under which he paid 3s. in the pound. One of his creditors refused to accede to the trust-deed, and while he received the dividend did not discharge his debt. The debtor having thereafter obtained employment as a joiner, this creditor by using arrestments and poinding had obtained other 2s. in the pound. The debtor presented a petition for cessio. His state of affairs showed practically no assets. His other creditors were his mother-in-law, who had lent him a little money, his landlord, and two tradesmen. These persons had become his creditors since the date of the trustdeed. In his examination he expressed his intention, if he could, to pay these creditors in full, but said he did not propose to make any arrangement to pay the creditor above mentioned, who accordingly opposed the granting of cessio. Held that the debtor was entitled to cessio. Sproul v. M'Cusker, p. 668. In Father and Child-Provisions to Children -Effect of Bankruptcy of Father on Rights of Children Entitled to Receive Provisions at his Death. In the antenuptial contract of marriage, dated in 1868, of A B, heir-apparent of an entailed estate, he himself and the heir in possession of the estate bound and obliged themselves and the succeeding heirs of entail to pay the child or children of the marriage who should be alive at the death of A B and should not succeed to the entailed estate, and to the representatives of the children predeceasing A B, certain provisions proportioned in amount to the number of children or representatives of children surviving. 1877 A B succeeded to the entailed estate. In 1883 he disentailed the estate, and in the course of the disentail proceedings he granted a bond and disposition in security, in which he bound and obliged himself and his heirs, &c., to make payment of a sum similar in amount to the provisions to younger children and their representatives contained in his contract of marriage at the first term of Whitsunday or Martinmas which should happen twelve months after his death, to trustees therein named in trust for payment to the said younger children and their representatives in such proportions, if more than one child, as he should appoint in writing, and failing such appointment, equally. In 1887 the estates of A B were sequestrated, and the estates over which the bond and disposition in security extended were sold by the trustee in the sequestration. At that time there were alive two younger children of the marriage-a girl born in 1870, and a boy born in 1878-and their rights under the bond were valued at £2510, 11s., and this sum was paid over to the trustees under the bond. Held that the trustees were bound to retain the money and accumulate the interest until the Heron first term of Whitsunday or Martinmas which should happen after the death of A B. Maxwell v. Maxwell Heron, p. 793. Bankruptcy-Trust-Deed - Accession - Circumstances Held Insufficient to Amount to Accession, so as Bar a Creditor from Insisting on his Full Rights. A mercantile firm granted heritable security for payment of a sum of money. It became bankrupt and granted a trust-deed for behoof of creditors, of which the heritable creditors were aware. Being satisfied with the security which they held they did not claim or receive a dividend. Held that they had not acceded to the trust to the effect of discharging the partners of the firm from liability for the debt. The Heritable Securities Investment Association, Limited v. Wingates, p. 904. Novation Delegation Discharge. A mercantile firm and the partners thereof granted heritable security for a debt, and thereafter became bankrupt. A new firm was formed under the old name, which undertook to perform the whole obligations contained in the agreement between the old firm and the heritable creditors for repayment of the debt. The heritable creditors undertook to accept the new firm as tenants under a lease of the security-subjects which they had granted to the old firm. One of the partners of the new firm bound himself for the debt, but without hurt or prejudice to the old security, and in corroboration thereof. The new firm became became bankrupt, and on an affidavit and claim lodged in its sequestration the heritable creditors stated that they held no other obligants bound for their claim except the firm, the partners thereof, and the partners of the old firm. Two of the partners of the old firm were not members of the new. Held that these facts were insufficient to infer delegation or novation, or to release the two partners of the old firm from their obligation of the debt. The Heritable Securities Investment Association, Limited v. Wingates, p. 904. See Trust. Bar. See Agricultural Holdings. "Beecham's Pills." See Trade-Name. Bill-Diligence-Suspension of Charge-Caution. In a suspension of a charge upon a bill, the complainer, who was the acceptor, averred that he had been induced to part with the bill by false and fraudulent statements, and had received no value for it; that the bill had been negotiated fraudulently and in violation of an order of the Court of Chancery; and that the chargers had acquired it when overdue and without value given, and after they had received notice of the fraud and of the order pronounced by the Court of Chancery. The chargers, who were a banking company, averred that they had acquired the bill during its currency for value from one of their customers, and without notice of the Chancery Order or of any defect in the title of the prior holders. Held that the complainer must find caution as a condition of being allowed to proceed with the Bill. See Cautioner. Bill of Lading. See Ship. "Bodily Injury Caused by Violent Accidental, External and Visible Means." See Insurance. Bona Fides. See Trust. Bond and Disposition in Security. See Loan. See Justiciary Building Society-Instrument of DissolutionConsent of Members-The Building Societies Act 1874 (37 and 38 Vict. cap. 42), sec. 32. The 32d section of the Building Societies Act 1874 provides that a society may be dissolved by dissolution with the consent of three-fourths of the members, holding not less than two-thirds of the shares, "testified by their signatures to the instrument of dissolution." Held that members of a society under the Act who had employed mandatories to sign an instrument of dissolution on their behalf, had failed to testify their consent to a dissolution in terms of the Act, and that signatures adhibited by mandatories could not be reckoned in calculating, whether an instrument of dissolution was signed by three-fourths of the members of the society. Second Edinburgh and Leith 493rd Starr-Bowkett Building Society and Another v. Aitken, p. 456. Building without Warrant. Cases. Burgh-Burgh of Barony-Election of Magistrates-Police and Improvements Scotland Act 1862 (25 and 26 Vict. cap. 101)-Failure to Elect Magistrates. A burgh of barony under the powers of its Crown charter elected its magistrates and councillors on the first Wednesday in September every third year, the electors being male owners or tenants of land of the annual value of £10. In 1863 the burgh adopted the General Police Act of 1862, but in spite of the extension of the franchise under the Amendment Act of 1868 to occupiers of land of the yearly value of £4, and under the General Police Act 1882 to female occupiers of the same value, the elections continued to be conducted under the charter, the last being held in September 1888. In November 1891, after the date of the election for that year under both the Charter and the Burgh Election Acts had elapsed, the Court was asked to direct the town-clerk of the burgh to make up the roll of electors, including male occupiers of lands or premises of the yearly value of £4 and upwards as appearing in the valuation roll, and female occupiers of lands or premises as aforesaid who were not married, or, being married, did not live in family with their husbands, or otherwise, including only persons qualified in terms of the said charter of Stromness, and to appoint a returning officer to hold the election under the provisions of the Ballot Act. The Court refused to do more than appoint a returning officer to act at the election to be held on December 18th following. The Magistrates of Stromness, Petitioners, p. 177. Burgh-Dean of Guild-Feu-Contract-Conditions-Contravention. The owner of a distillery in a burgh petitioned the Dean of Guild for warrant to erect "bonded warehouses, malt barns, and relative stores adjoining ground which was held under a feu-disposition prohibiting the erection of "any distillery, brewery, or other manufacture or chemical process of any kind which may be nauseous or noxious to the inhabitants of the neighbourhood." In a question with a co-feuar, held that the proposed buildings would not constitute a contravention of the condition of the feu. Finnie v. Andrew Usher & Company, p. 273. on as Police-Assessment - Sewer Rate--Sinking Fund-General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. c. 101), secs. 196 and 384. The General Police and improvement (Scotland) Act 1862 provides, section 196, that the police commissioners of a burgh are entitled to "borrow for the purpose of making, enlarging, re-constructing, and maintaining sewers," on the security of the sewer rates, "such sums of money as the commissioners shall deem necessary for that purpose, and to assign the. rates in security of the money so to be borrowed," and declares that the provisions of the Act with regard to the borrowing of money and granting of bonds in security shall apply to money borrowed for purposes falling under this section. Section 384-"It shall be lawful for the commissioners to borrow and take up for any of the purposes of this Act other than the construction, alteration, or maintenance of sewers hereinbefore provided," any sums of money thought necessary. The commissioners are authorised "to assess all owners, or occupiers of premises within the burgh, respectively liable in the several assessments under this Act, in such additional assessments beyond the sums necessary for such respective purposes as will produce a fund equal to five per centum per annum upon the sum or sums so borrowed respectively, and also to the annual interest of such borrowed sum or sums, which sum of five per centum per annum the commissioners shall annually appropriate, set apart, and invest. . . as a sinking fund applicable and to be applied by the commissioners from time to time to the repayment of the monies borrowed until the respective debts shall be extinguished." The commissioners of a police burgh raised a sum of money upon the security of the special sewer rate of a separate drainage district, for the purpose of constructing sewers. The sewers were constructed, and the commissioners believing themselves authorised by b section 384 of the General Police Act 1862, imposed an assessment upon the separate drainage district, which in their opinion was sufficient not only to pay the interest upon the borrowed money, but also to form a sinking fund for repayment of the capital within twenty years. Certain ratepayers objected to assessment, on the ground that it was ultra vires of the commissioners. Held that the assessment was legal, because either (1) section 384 of the statute applied to the matter of borrowing money for making sewers, and the commissioners had acted within the provisions of the statute; or (2) if it did not, section 196 imposed no directions as to the manner of borrowing, or the time within which the money was to be repaid; that therefore the action of the commissioners was not forbidden by the Act, and as an act of administration was within their powers. Macdonald (Clerk of the Commissioners of the Burgh of Govan) v. Mickel and Others, p. 530. Burgh-Police-Assessment-Sewer Rate-Deduction General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. c. 101), sec. 100. The General Police and Improvement (Scotland) Act 1862, section 96, provides "that when police commissioners resolve to make a new sewer, they may charge the owners of all the lands or premises liable to contribute to the rates for making the same with special sewer rates over and above any other assessment or rates to which such persons may he liable." Section 100 provides - "Where in the judgment of the commissioners any premises were sufficiently drained before the making of such new sewer, the owners thereof shall be entitled to have such deduction made from the special sewer rates to which they would otherwise be liable in respect of the making of such new sewer, having regard to the cost of making such new sewer and to the value and efficiency of such old sewer." . . . The police commissioners of a burgh borrowed money on the security of the sewer rates for the construction of a new sewer within the drainage district, and in order to pay the interest on the sum borrowed and the capital within twenty years, the commissioners imposed an assessment of one shilling and fivepence upon the whole drainage district. The full amount, however, was levied only from owners whose properties drained into the new sewers. The owners of properties which were drained into sewers existing before the construction of the new sewers received an abatement of one shilling and fourpence three-farthings. The ratepayers from whom the full amount was levied objected that the assessment ought to be levied equally over the whole district. Held that the abatement was within the competency of the commissioners, and was a matter of discretion with which the Court would not interfere. Macdonald (Clerk of the Commissioners of the Burgh of Govan) v. Mickel and Others, p. 530. Burgh- Common Good - Harbour - Loan for Benefit of Harbour Obligation to Repay Loan-Assignation of Harbour Rates in Security-Burgh Harbours (Scotland) Act 1853 (16 and 17 Vict. c. 93), secs. 17, 18, 19, and Sched. B. A burgh which had adopted the Burgh Harbours (Scotland) Act 1853, borrowed a sum of money for the extension and improvement of its harbour, and granted a bond and disposition in security, in the form prescribed by Schedule B of the Act, which contained an obligation to repay the money lent, and assigned the harbour rates in security. The harbour rates proved insufficient to repay the loan. Held that under the bond and assignation the burgh was bound to repay the money out of the common good. Royal Burgh of Renfrew v. Murdoch, p. 742. Dean of Guild-Edinburgh Municipal and Police Amendment Act 1891, sec. 50Reduction of Open Space-Discretion of Dean of Guild-Saloon-Ventilation. The Edinburgh Municipal and Police Amendment Act 1891, by section 50, provides that "Every new house, and any building altered for the purpose of being used as a house, shall have in the rear thereof" a certain open space: Provided always, that in any case where the thorough ventilation of any house or building is in the opinion of the Dean of Guild Court otherwise secured . . . the said Court may in their discretion allow the open space to be reduced: Provided also, that in the case of the erection of houses with shops on the ground floor, or of conversion of a house into a building to be used for business premises only, the Dean of Guild may sanction the erection of saloons upon such open space."... The proprietors of a house presented a petition to the Dean of Guild Court for warrant to convert the ground and basement storeys into business premises, and to erect a workshop on the open ground behind the house. The Dean of Guild granted the prayer of the petition. He also expressed himself satisfied with the ventilation of the house. Held (aff. the interlocutor of the Dean of Guild) that the building in question rather fell under the 2nd proviso of the 50th section of the statute, in which case the Dean of Guild could grant warrant to erect buildings such as were contemplated here, being of the nature of a saloon, but that even if the building was to be regarded as "a house" the Dean of Guild being satisfied as to the ventilation, could allow the open space behind to be occupied. Observed that the ventilation to be attended to was that of the building which it was proposed to erect, and not that of neighbouring houses. Scott's Trustees v. Shaw, p. 767. See Reparation-Church. Burgh Franchise. See Election Law. Bye-Law ultra vires of County Council. Justiciary Cases, See Case Improperly Stated. See Valuation Cases. Cash-Credit Bond. See Married Women. Casualty. See Superior and Vassal. Caution-Cautionary Obligation for InterestAct 1695, c. 5-Septennial Limitation. Held, by a majority of Seven Judges (the Lord President, Lords Young, Rutherfurd Clark, and M'Laren-diss. the Lord Justice-Clerk, Lords Adam and Trayner) that the septennial limitation introduced by the Act 1695, c. 5, does not apply to the obligation of a cautioner who is bound only for payment of interest on the principal sum due under a bond. Molleson v. Hutchison, p. 458. See Bankruptcy-Bill. Cautionary Obligation-Letter of GuaranteeImprobative Writ-Rei Interventus-Writing in re mercatoria. A bank handed a letter of guarantee to M, the person whose credit was to be guaranteed, for the purpose of obtaining the signature of the granter. After the granter had signed, and outwith his presence, M got two persons to adhibit their signatures as witnesses to the subscription, presented the writ to the bank with the testing clause filled in, and received the advance guaranteed. In an action raised after M's bankruptcy, at the instance of the bank, it was held that they were entitled to recover the sum contained in the letter of guarantee from the granter thereof, and that as the advance had been made on the faith of his signature, he was barred by rei interventus from pleading the improbative condition of the writ when it left his possession. Question, whether a letter of guarantee is a writ in re mercatoria. National Bank of Scotland, Limited v. Campbell, p. 757. See Married Women. Cautionary Obligation for Interest. See Caution. Cautioner-Liberation-Bill-Giving Time. A cautioner granted a letter guaranteeing to see J"duly paid for all gcods you may supply from and after this date to the order of C." When the account between J and C was closed, a considerable sum remained owing to J, for which the cautioner repudiated liability. J thereafter accepted bills at three months from C for the sum due, and C having become bankrupt before the bills were met, but after a portion of the debt had been satisfied by cash payments, J sued the cautioner for the balance. Held that J, by taking the bills and thereby giving time to C, had liberated the cautioner-diss. Lord M'Laren, who held that the cautioner having repudiated liability, J was entitled to make the best terms he could with C. C. & A. Johnstone v. Duthie, p. 501. See Judicial Factor. Charge. See Landlord and Tenant. Charitable Bequest. See Will. |