late the annual proceeds of the heritage until with the residue they amounted to the sum of £6000, which was then to be applied in founding an institution for the education of orphans of a specified class between the ages of eight and fourteen. The value of the estate having turned out to be much greater than the testator had anticipated, the trustees found that the resources of the trust were not exhausted in carrying out the directions of the testator. They therefore petitioned the Court to authorise them to receive children into the institution at the age of five, subject to the condition that they should always give a preference to children between eight and fourteen. The Court granted the authority craved, holding that the proposed extension of the benefits of the trust was in substantial accordance with the intentions of the testator. The Trustees of Carnegie Park Orphanage, p. 489. Charity. See Trust. Charter-Party-Delivery of Cargo of Timber and Deals-Wharf where no Facilities to Unload Cargo on Quay-Discharge of Cargo into River. By charter-party a sailing vessel was taken bound to deliver a cargo of timber and deals at the port of discharge, at such wharf or dock as the charterers should direct. On the arrival of the vessel at Glasgow, the port of discharge, the charterers directed the master to discharge in the Queen's Dock. On account of the state of the traffic in that dock, the harbourmaster refused to allow the vessel to be berthed there, and assigned the vessel a discharging-berth at Yorkhill, a wharf used for the landing of foreign cattle, and where there were no appliances for unloading timber and deals on the quay. To this arrangement the charterers submitted. The master berthed the vessel at Yorkhill and discharged the cargo into the river Clyde. Held that he acted rightly in doing so, and that having thus delivered the cargo over the ship's side he was not bound to tow it on rafts to the nearest quay and land it thereon. Thorsen v. M'Dowall & Neilson, p. 573. Construction of Clauses of Charter-Party regarding the Mode of Paying Freight--Delivery of Cargo Ship's Lien over Delivered Cargo till Freight Paid. A charter-party contained the following clauses concerning the payment of freight (1) The ship was to deliver the cargo of timber and deals at the port of discharge on being paid freight at a certain rate per 165 cubic feet; (3) "Freight to be paid as follows-One-third in cash on arrival, and the remainder after unloading and on right delivery of the cargo"; (12) "The master or owners to have a lien on cargo for all freight, dead freight, and demurrage." Held that under the charter-party, after payment of the one-third of the freight payable on arrival no further freight required to be paid until the whole cargo had been unloaded and found to be in as good condition as when shipped, while on the other hand the ship had a lien over the cargo so unloaded until the whole freight had been paid. Thorsen v. M'Dowall & Neilson, p. 573. Charter-Party. See Ship. Child. See Culpable Homicide. Church - Stipend Competent and Legal" Stipend -- Burgh · Contract or Trust. The New or Mid Parish of Greenock was erected by the Court of Teinds in 1741. The decree bore that the managers of the burgh (the predecessors in office of the present magistrates) having received a sum of £1000, raised by voluntary assessment, and having been promised further contributions, were to have the patronage of the new church, the right to levy and appropriate the seat-rents and certain other rights, and were to provide the minister with a competent and legall stipend not under 950 merks, with 50 merks for the Communion Elements" (together equivalent to £55, 11s. 1d). The sum of £1000 was subsequently mixed with the town's funds and applied to pay its debts. Held, in an action brought in 1891 against the Magistrates of Greenock, that an onerous contract had been entered into which bound the managers of the burgh and their successors in office to provide such a stipend to the minister of the Mid Parish out of the revenue of the burgh as should be legal and competent according to the circumstances of the time-the amount in case of dispute being from time to time fixed by the Courtdiss. Lord Young, who was of opinion that the £1000 simply constituted a trust-fund with the managers of the burgh as trustees; further that if it was a case of contract, 950 merks should be the limit of the obligation. Peters v. Magistrates of Greenock, p. 507. Circumstances held insufficient to amount to Accession, so as to Bar Creditor from Insisting on his Full Rights. See Bankruptcy. Claim. See Election Law. Claim by Tenant of Farm against Mineral Tenant for Severance Damage. See Contract. Claim by Undischarged Bankrupt. See Bankruptcy. Claim Signed by Person having no Mandate. Clause. See Succession. Common Carriers. See Reparation. Common Property. See Right in Security. tion, incorporated under the Companies Acts as a company limited by guarantee, provided that every member of the company should be liable, in the event of the same being wound up during the time that he was a member, to contribute to the assets of the company for the payment of its debts such an amount as might be required, not exceeding £1. It further provided for the constitution of a guarantee fund, the subscribers to which were in the same event to be liable to the extent of their guarantee. The articles of association provided that in the event of a winding-up any loss or deficiency arising should be assessed first upon the subscribers to the guarantee fund, whether members or not, and secondly, upon members in respect of their liability under the clause of the memorandum of association quoted above. The memorandum of association also provided that one of the objects for which the company was established was "to hypothecate or assign to any corporation or person who shall lend money to the association the guarantee obligations, letters, and relative documents" from members and subscribers to the guarantee fund; and by the articles of association the executive council of the association were empowered to borrow money and to assign and hypothecate the guarantee obligations, letters, and relative documents in security thereof. The executive council having borrowed a sum of money from a bank, resolved that "in security thereof the council, as empowered under articles of association, hereby hypothecate to the said British Linen Company the letters of guarantee granted by the subscribers to the guarantee fund of said exhibition conform to printed list thereof, and hereby undertake that all necessary proceedings shall be taken at their instance to recover the sums for which the several guarantors are respectively liable under said letters, and to apply the same in reduction of said advances." In conformity with this minnte the whole letters of guarantee were delivered by the officials of the company to the bank, and a circular was sent to each of the guarantors by the bank intimating that the executive council had hypothecated the letters of guarantee to the bank in security of advances, that the letters were in the hands of the bank, and that in the event of there being a call upon the guarantee, it would fall to be paid to the bank. The company thereafter went into voluntary liquidation, which was placed under the supervision of the Court, and the liquidator called upon the bank to deliver to him the letters of guarantee. The bank having refused, the liquidator presented a note praying the Court to ordain the bank to deliver the letters to him, and to declare that the bank had no valid security or preference over the guarantee fund or the letters of guarantee for repayment of their advances. Held that the executive council had no power to hypothecate the guarantee fund, as it was a fund not called into existence until the company went into liquidation; that no lien was constituted over the ipsa corpora of the letters by their delivery to the bank; and accordingly that the bank had no valid security over the fund or the letters. Robertson (Liquidator of International Exhibition Association of Electrical Engineering and Inventions 1890) v. British Linen Company, p. 9. Company-Winding-Up- Register- Process Petition for Rectification of Register-Competency-Companies Act 1862 (25 and 26 Vict. c. 89) - Companies Act 1886 (49 Vict. c. 23). Section 6 of the Companies Act of 1886 made it lawful for the Court which had made a winding-up or supervision order to remit to a Lord Ordinary to take the proceedings previously open to the Court under the Companies Act of 1862, and provided that any judgment of the Lord Ordinary should be subject to review by a reclaiming-note within fourteen days. In winding-up proceedings which had been remitted to a Lord Ordinary, the liquidators in May 1890, and again in March 1891, presented a note to the Court for settlement of a list of contributories, and on 3rd March 1891 the Lord Ordinary granted the prayer of the note. A person whose name had hitherto without objection appeared in the list of contributories, presented a petition under section 35 of the Act of 1862, to have the register of the company and the list of contributories rectified by the removal of his name. The liquidators objected that the petition was too late and ought to be dismissed in respect that the various orders of Court had become final, particularly in view of section 6 of the Act of 1886. Held that this section, which transferred the conduct of the liquidation and gave a power of review, did not exclude a party from the benefit of the provisions of the Act of 1862, and as the petition would have been competent under that Act, the petitioner was not now barred from thereby denying that he was a shareholder in the company. Stocker v. Murray & Henderson (Official Liquidators of Coustonholm Paper Mills Company, Limited), p. 29. Articles of Association-ConstructionDirector-Qualification-The Companies Act 1862 (25 and 26 Vict. cap. 89), secs. 23, 30. The articles of a company registered under the Companies Acts as an unlimited company, provided that any two of the directors should be a quorum, that any member holding ten shares should be eligible as a director, and that "in case any share or interest in this concern shall be held in the name of a company or firm, only one individual partner of that company shall be entitled to attend and vote at the general meetings, and to give proxy as aforesaid, whose name shall be entered in the books of the company as the ostensible holder, and no trustee on the bankrupt estate of a partner shall be entitled as such to attend any meeting or to vote by proxy at the same." A call having been made at an ordinary meeting by a quorum of the directors who were registered individually, and as possessing more than ten shares each, a shareholder objected to their qualification, alleging that they had no beneficial right in their shares, but held them in trust for a certain company, and further that as such partners of this company only one was entitled to act. The Court held that this defence was irrelevant on these grounds-(1) that as the directors were registered individually, and were therefore liable individually for all the obligations of an individual shareholder, they were entitled to all the privileges pertaining to such a character; (2) that the word "held" in the clause "any share held in the name of a company" was equivalent to "registered," and did not apply to the shares held by the directors; and that as the directors were not registered as "ostensible holders" for the company for which they were alleged to hold in trust, the restriction on persons registered as such did not apply to them; (3) that the article founded on did not affect the present case, as it applied only to general meetings. The Galloway Saloon Steam-Packet Company v. Wallace, p. 264. Company-Winding-up-Supervision OrderCompanies Act 1862 (25 and 26 Vict. cap. 89), secs. 82, 147, 152. A limited company resolved to wind up voluntarily, and appointed a liquidator, who applied for a supervision order. A shareholder objected to the application, as he had raised an action of reduction against the resolution of the company. There was no suggestion that the procedure of the company had been in any way irregular. The Court granted the supervision order, leaving it to the objector, in terms of the Companies Act 1862 (25 and 26 Vict. cap. 89), sec. 87, to apply to the Lord Ordinary before whom his action of reduction was called for permission to proceed therewith. The Solana Mining Company (Limited) and Liquidator v. Cunningham, p. 290. Winding-up-Creditor's Petition-Disputed Debt-Voluntary Liquidation-Majority Requisite for Special Resolution-Companies Act 1862 (25 and 26 Vict. cap. 89)— Expenses. Creditors of a public company holding an extract decree-arbitral for £58, 12s. 2d., presented a petition for the winding-up of the company. The company in their answers alleged that a process of voluntary liquidation was going on, and produced a minute of an extraordinary general meeting containing a declaration by the chairman to the effect that a resolution to wind up the company voluntarily was carried. The minute further contained the statement that there voted for the resolution eight, and for an amendment four. The company admitted their liability for the debt to the amount of £43, but disputed it to the extent of £15, 12s. 2d., and stated that they wished to test the regularity of the arbiter's decree. Held (1) that there was no voluntary liquidation, as the minute bore upon its face that the requisite majority of three-fourths, required by section 51 of the Companies Act 1862, had not existed; (2) that the disputed debt was of too shadowy and unsubstantial a nature to justify the refusal of the petition. Cowan and Others, Petitioners, p. 375. Company Voluntary Liquidation-Removal of Liquidator-Due Cause-Companies Act 1862 (25 and 26 Vict. cap. 89), sec. 141. The shareholders of a company having resolved that it should be wound up voluntarily, unanimously appointed H. to be liquidator, and a number of the creditors of the company subsequently intimated their concurrence in this appointment. In a petition by H. for a supervision order and for confirmation of his appointment a creditor lodged answers and moved the Court to remove H. from the o fice of liquidator on the ground that he was a shareholder and had at one time been a director of the company. The Court confirmed H.'s appointment, holding that due cause had not been shown for his removal. M'Knight & Company and Hardie v. Montgomerie, p. 433. Misrepresentation Winding-up - Contributory. The directors of a company formed in 1887 issued a prospectus in December 1890, which contained material misrepresentations as to the state of the company's affairs. After a number of new shares had been taken up on the faith of this prospectus, the directors, on 12th May 1891, issued a circular to all the new shareholders acknowledging the misleading character of the prospectus, and intimating that they proposed to present to the Court a petition for authority to rectify the register by deleting therefrom the names of the new shareholders. Two of the new shareholders, W. and D., wrote in reply to this circular on 14th and 20th May respectively, expressing their desire to have their names removed from the register, and approving of the course which the directors proposed to take. On 18th May the directors issued a notice of an extraordinary general meeting, to be held on 26th May, for the purpose of passing resolutions confirming a provisional agreement for the transference of the company's business to another company, and for the voluntary winding-up of the company. On 20th May the directors presented a petition for removal of the new shareholders' names from the register. The petition was intimated to each of the new shareholders and no answers were lodged, but before the induciæ had expired a petition was presented on 26th May to have the company wound up by the Court, and under this petition an order was subsequently pronounced for the judicial winding-up of the company. In a note by the liquidators for settlement of the list of contributories, the Court held (1) that the company not having been publicly declared insolvent, the directors were acting within their powers in issuing the circular of 12th May and presenting the petition of 20th May, and that it was irrelevant for the liqui dators to aver that the directors had acted in the knowledge that the company was insolvent at the date the circular was issued, and in order fraudulently to avoid the personal liability which they had incurred; (2) that W. and D. were entitled to have their names removed from the list of contributories, in respect that before the petition for winding-up was presented they had, by their acceptance of the offer contained in the directors' circular, taken steps to have their names removed from the register; and (3) that the names of all the other new shareholders must be placed on the list of contributories. The Liquidators of the Edinburgh Employers and General Assurance Company Limited v. Griffiths and Others, p. 518. Company Shareholder-Application for Shares -Acceptance-Withdrawal- Notice of Allotment. Where a person applies for shares in a company, and shares are allotted to him, it is not necessary in order to constitute him a member of the company, that a formal notice of allotment should be sent to him, provided he is made aware that the company have accepted his application. C having applied for shares in a company, withdrew his application some months later, in respect that he had received no intimation of allotment. In a petition by C to have his name removed from the register of members, it appeared that before he withdrew his application he had received a circular calling a meeting of shareholders, and that his wife having called at his request upon the secretary of the company in reference to the shares, had been informed that her husband's application had been accepted, and that his name was upon the register. The Court, without deciding the question whether or not a notice of allotment in the usual form had been sent to the petitioner, refused the petition, holding that the petitioner had been adequately informed that his application had been accepted. Chapman v. Sulphite Pulp Company, p. 755. Reduction of Capital-Confirmation of Resolution to Reduce Replacing of Lost Capital-Incompetent Procedure-Companies Act 1862, secs. 9 and 19-Companies Act 1877, secs. 3 and 4. The Court refused to confirm a special resolution of a joint stock company, which purported to reduce the capital of the company, but which really only reduced the amount paid up upon each share with the view of thereby replacing certain capital which had been lost. W. Morrison & Company, Limited, Petitioners, p. 864 Company as Defenders. See Reparation. Company Limited by Guarantee. See Company. Compensation Agricultural Holdings (Scotland) Act 1883 (46 and 47 Vict. c. 62), secs. 7, and Heads (16) and (17) of Schedule Compensation for Unexhausted Improvements Notice of Claim-Particulars to be Stated therein "as far as reasonably may be"-Bar. A landlord in his pleadings in the Sheriff Court expressed his readiness to proceed to arbitration with regard to the first two or three heads of a claim made by a tenant for compensation for unexhausted imprisonments, but took exception to the last head on the ground of insufficiency of specification in the notice. The last head of the claim having been withdrawn, he afterwards brought an action of suspension and interdict in the Court of Session to prevent arbitration proceedings going on with regard to the first two heads of the claim, on the ground that the particulars furnished in the notice as to them were also insufficient. Held that although the notice might probably have been regarded as insufficient, the landlord was barred by his former pleadings from now challenging its insufficiency. Opinions expressed that the particulars of a claim by a tenant for compensation for unexhausted improvements should be given in the notice with such detail as might reasonably be expected to enable the landlord to settle without resorting to arbitration, that being the course contemplated by the statute. Sinclair v. Brown, p. 652. Compensation. See Expenses-Contract-Railway-Bankruptcy. Compensation for Unexhausted Improvements. See Compensation. Competency. See Process Company Bankruptcy Justiciary Cases-Valuation Cases. Competency of Appointment upon Second Ap plication where First Refused. See Appoint ment. Competency of Charge at Instance of Party Under Curatory. See Diligence. Competency of New Action by Mother for Damages for Same Injury. See Reparation. Competency when Limited Company in Liquidation Defenders. See Process. 66 Competent and Legal" Stipend. See Church. Competing Claims. See Executor-Dative. Competing Claims for the Office of Executor. See Executor. Complaint by Third Party. See Valuation Composition. See Superior and Vassal. See Re Conditio si sine liberis. See Succession. Consent of Members. See Building Society. Construction. See Ship-Landlord and Tenant --Trust Company Insurance LeaseProperty--Succession. Construction of Clauses of Charter-Party regarding the Mode of Paying Freight. See CharterParty. Construction of Terms. See Succession. See Trust Contingent Right of Beneficiary. Disposition and Assignation. Contract-Implement-No Specific Time for Delivery - Unavoidable Delay Reasonable Time. A firm of iron merchants in May 1887 contracted to supply the malleable ironwork of certain proposed buildings. The estimate provided "The prices for the above to include all charges for carriage to and delivery at the job at such times as may be required by the mason, who will take delivery of joists and beams and lay the same." Following a usual course, the iron merchants exported iron to Belgium, to be manufactured into girders and joists and returned to them, but owing to strikes and excessive heat in that country certain girders which were ordered between 6th and 15th June were not delivered till the end of September and beginning of October, from a month to six weeks beyond what was admitted to be the usual and ordinary time. In an action against the iron merchants for damages for breach of contract, held that as the defenders had taken a common course of ordering the ironwork from abroad, the causes of delay incident to its foreign manufacture must be considered, and were sufficent to exculpate the defenders from the charge of unreasonable delay in fulfilling their contract. Taylors v. Maclellans, et e contra, p. 23. Stock Exchange Transaction-Gaming— Whether Contract Real, or for Payment of Differences. In an action for a balance alleged be due upon certain transactions in stocks and shares, the defender alleged that these were gambling transactions for differences. It appeared that the capital of the parties was entirely disproportionate to the amount of the transactions, and that the parties contemplated that these might be fulfilled in the way of a re-sale, but the pursuer denied that the transactions were for differences, the defender could not prove such an agreement, and on the face of the documents the transactions appeared to be carried out in the ordinary course of Stock Exchange business, and might have been enforced at law by either party. The court held that the transactions were real, and decerned in terms of the conclusions of the summons. Lowenfeld (Liquidator of the Universal Stock Exchange Company, Limited) v. Howat, et e contra, p. 119. Breach of Contract-Loss of Profits Damages. A manufacturing company in this country entered into a contract for the sale of iron huts of a peculiar construction, for which they held patents, to a firm of merchants in South Africa, with a view to the huts being resold there by the merchants. The earlier consignments of huts sent in pursuance of this contract were sold by the merchants at a profit, but subsequent consignments were rejected as being disconform to contract. In an action by the merchants against the manufacturers, it being proved that the pursuers were justified in their rejection of the huts, the Court in assessing the damages due by the defenders for their breach of contract, held that the pursuers were entitled to payment of a reasonable allowance for loss of the profits which they would probably have made if the contract had been fulfilled. Duff & Company v. The Iron and Steel Fencing Company, Limited, p. 186. Contract-Sale of Heritage-Written Agreement -Unilateral Obligation. The proprietor of a house, in pursuance of a verbal agreement, wrote as follows-"I have agreed to sell my house at corner of High Street, Leven, for one hundred and fifty pounds to M." This document was duly attested, but was withdrawn by letter upon the same day. In an action by M for declarator that a valid contract of sale had been effected, held that although the owner of heritable property might by unilateral obligation bind himself to sell it, the document in question did not set out any such obligation, but formed one side of a bilateral obligation, and that as both parties. were not thereby bound, there was no concluded contract of sale. Malcolm v. Campbell, p. 235. -Loan--Bond Qualified by Back-Letter — Equitable Construction. In January 1889 a banking company lent certain persons £500 under a bond by which the debtors were taken bound to repay said sum "together with the additional sum of £131, 5s, of interest on the said advance, making together the aggregate sum of £631, 5s." at Whitsunday 1889. The lenders at the same time granted a back-letter under which the debtors were to "be allowed five years to pay off the amount of said loan, and that by quarterly instalments," which together amounted to £631, 5s. The backletter, however contained a stipulation that in case certain events occurred, the lenders were to have power "to call up the loan or balance thereof if they think proper, and that as fully and freely as if this letter had not been granted.' These events did occur, and the banking company in September 1890 called up the loan and demanded payment of the balance of the sum of £631, 5s. Held (Lord Trayner diss.) that looking to the terms of the back-letter the lenders were only entitled to the balance of the loan of £500 remaining unpaid, with interest at 10 per cent. up to date, that being evidently the rate of interest upon which the calculations of the contracting parties had been based. British Mutual Banking Company v. Pettigrew, p. 378. Breach of Contract Compensation Defence. T. entered into a contract with M. & Company to supply them with watches to the value of £849 at certain specified prices, the watches to be delivered as they were ready, and paid by bills at four months from delivery. After a number of watches had been delivered in terms of the contract, T. wrote on 26th November 1889, intimating that he would no longer supply the watches at the agreed-on prices. On 30th November T. sent M. & Company bills for the price of watches delivered prior to 26th November, but M. & Company refused to accept these bills in con |