Hearsay. See Poor. Heir and Executor. See Succession. Highway Passing through Burgh. See Justiciary Hired Evidence. See Trade-Name. Homologation-Adoption of Liability. The son in the course of an application by him to set aside a sequestration of his estates had requested the tenant who was claiming as a creditor to consent to it being recalled. The tenant had not consented to do so. Held that the son had not by such application barred himself from denying liability for the deposit. Henry v. Scott, p. 486. Horseracing-Obligation-Principal and AgentMandate-Disbursement of Money in BetsPactum illicitum-Sponsio ludicra-Relevancy. Held that commission agents who averred that they had disbursed certain monies at a horseracing meeting upon the mandate of the defender, were not barred from suing their alleged principal for recovery of these sums because they had been paid away as bets, and that the pursuers had made their averments sufficiently specific by giving in each case the name of the race, of the horse backed, of the amount staked, and of the person with whom the bet was made, even although in half of the cases the name given was merely "a bookmaker." Knight & Company v. Stott, p. 810. Hospitality. See Justiciary Cases. Hotel. See Valuation Cases-Trade-Name. Hotel Conducted without Certificate. See Reparation. Husband and Wife-Divorce-Domicile-Jurisdiction. A Scotsman who in 1862 had entered the Royal Navy, in 1866 married in Malta a native of that island, where from 1867 till 1873 he was employed in a Government office. He then retired, and after some months' residence in Great Britain he again returned with his wife and family, on account of his health, to Malta, where he remained until 1879, when he was appointed to an office there which he was entitled to hold for a period of twenty years. While abroad he maintained constant communication with his relatives in Scotland, and his sons were sent to this country for education. He had no property or residence in Malta other than his official apartments. In 1887 the spouses separated under an extrajudicial agreement, which by the law administered in Malta required judicial consent. The deed of separation provided that in the event of the wife's adultery the remedy of divorce "before the competent tribunals in England" would still be competent to the husband. In an action of divorce on the ground of adultery, raised by the husband in Scotland, the wife pleaded no jurisdiction. Held-diss. Lord Young(1) that the defender had not proved that the pursuer ever intended to abandon his Scottish domicile; and (2) that even assuming the separation to have been judicial, it did not, for the purposes of this action, affect the defender's status as the pursuer's wife, and further, that she was excluded by its conditions from pleading it in bar of action. Low v. Low, p. 108. Husband and Wife-Constitution of Marriage-Proof-De præsenti Acknowledgment. A de The clarator of marriage was raised by a woman founded upon de præsenti acknowledgments exchanged between her and her alleged husband. The acquaintance began in October 1888. A courtship ensued, and the parties became engaged. On 8th May 1889 they signed and exchanged writings in which they acknowledged each other as husband and wife. No witness was present when this was done, though the writings bore to be attested by witnesses. The parties had connection with each other both before and after 8th May, and the intercourse between them resulted in the birth of a child on March 2nd 1890. pursuer deponed that the documents had been exchanged with the intention of constituting a marriage. The defender said that the object of the exchange was to give the pursuer, in the event of his death, a claim to an insurance on his life. He admitted, however, that at the time he was perfectly willing to marry the pursuer before the registrar, and had proposed that course to her. The correspondence showed that after 8th May 1889 the parties, with the exception of one letter written after a quarrel, always wrote to one another as husband and wife, but, on the other hand, it was proved that on New Year's Day 1889 the pursuer had from the defender a card addressed to "my dear husband." It was also proved that on an occasion in July 1889 the pursuer introduced the defender to a friend as her husband, and the defender allowed the description to pass without comment, and that in the same month the defender gave her a wedding-ring, which she sometimes wore. The writings founded on were not produced, and the defender deponed that the pursuer, in the course of a quarrel with him, had torn the one given to her, saying "that that finished it for good and all," and that he had afterwards burned his. The pursuer denied that she had destroyed the writing given her by the defender, and there was some ground for the belief that it might have fallen into the hands of the defender's mother, who was hostile to the pursuer. There were passages in some of the pursuer's letters which suggested that in the beginning of August 1889 she had attempted to procure abortion, and there was also evidence that she had about the same time carried on a flirtation with a former admirer. The Court granted declarator of marriage, holding that the result of the whole evidence was to show that the writings in which the parties acknowledged one another as husband and wife had been signed and exchanged with the intention of constituting a marriage. Imrie (Poor) v. Imrie, p. 161. Husband and Wife-Affiliation and Aliment of Illegitimate Child-Wife Suing without Husband's Concurrence-Title to Sue. Held that a married woman whose husband was abroad and had not been heard of for six years, had a title to sue an action of affiliation and aliment for a child borne by her, without the concurrence of her husband, and without having a cura-tor ad litem appointed. M'Quillan . Smith, p. 315. Wife's Separate Estate--Earnings of Wife in Business-Married Women's Property Act 1877 (40 and 41 Vict. c. 29), sec. 3. Section 3 of the Married Women's Property Act 1877 excludes the jus mariti and right of administration of the husband from the wages and earnings of every married woman, acquired by her after 1st January 1878, "in any employment, occupation, or trade in which she is engaged, or in any business which she carries on under her own name." A man married a woman who had for some time carried on the business of fish-hawking. After the marriage the husband gave up the business of carting which he had previously carried on, and took to the business of fishhawking, and by request of both spouses the dealers who had previously supplied the woman charged their accounts to the husband's name. The two carts used in the business both bore the husband's name, but the wife chose the fish for one of the carts, and went a separate round from her husband, who looked after the other cart. The earnings of both spouses were lodged in bank in name of the husband and of the wife, or either, or the survivor. The wife predeceased the husband in 89. Held that the business was the husband's, and that the wife did not thereby earn any separate estate. Opinion by the Lord President that in order to get the benefit of the above section the wife must have some other "employer" than the husband, or the "occupation or trade" in which she is engaged must not be simply the occupation or trade of the husband. Opinion by Lord Adam that the first branch of the above section refers to wages earned by a wife in an employment, occupation, or trade in which she is engaged as the servant of another person; and the second branch to the earnings of a wife in any business which she carries on under her own name. Opinions by Lords Adam and M'Laren that it is only when the business is carried on in the wife's own name that she can lay claim to earnings as her separate estate. M'Ginty and Another v. M'Alpine, p. 825. Husband and Wife. See Assurance. Husband Selling to Wife the Furniture of their Illegal Preference. See Bankruptcy. Implied Entry. See Superior and Vassal. Imprisonment for Non-Payment. See Aliment. Income Tax. See Revenue. Incompetent Procedure. See Company. Infeftment. See Superior and Vassal. Injury to Workman resulting Fatally after Action Insecure State of House. See Reparation. Instrument of Dissolution. See Building Society. Insurance - Accident Policy - Construction— "Bodily Injury caused by Violent, Accidental, External, and Visible Means." A person who was insured against death from "bodily injury caused by violent, accidental, external, and visible means," had just risen from bed and was in the act of pulling on his stockings, when "he felt something give way in his inside," and shortly afterwards he died. Examination showed that the colon of the deceased had fallen out of its place and become folded, which caused great distension, and the resulting pressure on the heart was so great that its action was stopped. In an action by the deceased's representatives for the amount under the policy, held that the death was not the result of injury caused by violent, accidental, external, and visible means. Clidero and Another v. The Scottish Accident Insurance Company, Limited, p. 303. Insurance against Third Party RisksAction of Relief by One Insurer against Another. A tramway company effected policies of insurance against claims of compensation for injuries caused by its vehicles with two insurance companies. One of these companies having indemnified the tramway company for a loss covered by its policy, brought an action of contribution against the other insurance company, alleging that the loss in question was covered by both policies. Held that the pursuers had a title to sue. The Sickness and Accident Assurance Association, Limited v. The General Accident Assurance Corporation, Limited, p. 836. Insurance-Agreement to Insure-Condition that Insurance not to take Effect until Premium Paid-Insurance "from" a Particular Date. An insurance company agreed to insure a tramway company against accidents for twelve months from 24th November 1888 inclusive, the agreement being subject to the condition that no insurance should be effected until the premium was paid. An accident occurred on 24th November before the policy had been issued or the premium paid, and for the loss resulting from this accident the insurance company at once repudiated liability. On 26th November the premium was paid, and the insurance company acknowledged receipt of it as premium for the risk from the 24th inst." Held (1)-following Canning v. Farquhar, 16 Q.B.D. 729-that after the accident on 24th November the insurance company were not bound to issue a policy for the risk from 24th November inclusive; and (2) that they did not by the terms of the receipt undertake liability except for accidents occurring after the 24th. The Sickness and Accident Assurance Association, Limited v. The General Accident Assurance Corporation, Limited, p. 836. 66 See Damage by Fire. Interest on Unauthorised Payments. See Succession. Interest, whether should be Allowed on Ascertained Value. See Date of Valuation. Interlocutory Judgment. See Process. Interpretation of Statute. See Justiciary Cases. Intestacy. See Succession. Intestate Moveable Succession-Executor Making Agreement Adverse to Interest of Executry Estate-Removal of Executor―Judicial Factor. The majority of certain executrices-dative, in consideration of a sum of money, agreed to take measures to vest the executry estate in a person who alleged herself to be the widow of the deceased intestate. The minority of the executrices and certain other relatives of the deceased denied that the alleged widow was entitled to that character, and an action of multiplepoinding had already been raised to have part of the moveable estate distributed at sight of the Court. The objectors further alleged that a large portion of the executry estate was still to be ingathered. Held that as the majority of the executrices had agreed to use their powers adversely to the general interest of the executry estate, the administration thereof could not be left in their hands, and a judicial factor appointed. Birnie and Others v. Penny and Others, p. 270. Intimation of Order of Service. See Process. Irritant Clause. See Trust. Issue. See Reparation. Issue of Predeceasing Legatee. See Succession. Joint Contributor. See Reparation. Judicial Factor-Curator Bonis-Opposition of Lunatic to Appointment-Expenses of Opposi tion-Bank Cheque granted by Lunatic--LawAgent. The Lord Ordinary having on 15th August appointed a curator bonis to a lunatic, the latter reclaimed, but the First Division on 8th November adhered to the appointment, and pending an appeal to the House of Lords authorised the curator bonis to extract his appointment and act thereunder. The expenses were not dealt with. On 23rd October and 6th December the lunatic granted to his law-agents certain cheques on his bankers to cover respectively the expenses of the proceedings in the Court of Session and the House of Lords. The lunatic had also in September unsuccessfully sued the curator bonis and others in the Sheriff Court and Court of Session for delivery of certain securities belonging to him. In consequence of a refusal to honour the cheques the lunatic and his law-agents raised an action against the bank and the curator bonis for payment thereof. The curator by note to the Court desired authority to pay the law-agents their expenses incurred before the Lord Ordinary and in the Inner House as taxed, and to advance a sum on account of expenses in the House of Lords, provided the law-agents found caution to repeat the same in the event of the House of Lords disallowing expenses. The House of Lords meantime affirmed the decision of the Court of Session, and found the agents entitled to their expenses in that House. Held (1) that the decision of the House of Lords carried as a consequence the expenses in the Court of Session; (2) that the expenses of the Sheriff Court action could not form a charge against the estate; (3) that the cheques were invalid, as at their date the granter had been superseded by the Court in the management of his affairs. Mitchell & Baxter v. The Bank of Scotland and Cheyne (Dewar's Curator), p. 267. Cautioner-Woman. Held that an unmarried woman might be accepted as cautioner for a judicial factor's intromissions. Ross (Fraser's Judicial Factor), p. 432. sion. See Petition-Intestate Moveable SuccesJurisdiction-Forum non conveniens. S. and R. being both in business in Cape Colony entered into a joint speculation in the shares of a South African Mining Company. Some years afterwards, S., being then resident in England, raised an action of count, reckoning, and payment against R. in the Court of Session, averring that he had realised the shares and failed to account for the proceeds. At the date of service the defender had been resident in Scotland for more than 40 days. He stated that in the absence of his books and papers he could not give the details of the transaction referred to by the pursuer, but that the whole accounts connected therewith had long ago been settled, that his visit to Scotland was merely temporary, and that he was about to return to his business in South Africa. He pleaded forum non conveniens. The Court repelled the plea. Sim v. Robinow, p. 585. Jurisdiction. See Sheriff-Husband and Wife Justiciary Cases-Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), sec. 70-Education (Scotland) Act 1883 (46 and 47 Vict. cap. 56), sec. 9 Attendance Order. In a complaint charging a parent with contravening the Education (Scotland) Acts 1872 to 1883, in respect he had failed "to discharge the duty of providing efficient elementary education" for his child, and praying, in the event of conviction, for penalties under section 70 of the Education (Scotland) Act 1872, the Sheriff found that the accused had "failed to secure the regular attendance of his child to a public or inspected school," and pronounced an attendence order under the Education (Scotland) Act 1883, sec. 9. Held (1) that the complaint was competent, (2) that it was incompetent for the Sheriff under such a complaint to pronounce an attendance order under the Act of 1883, and order quashed. M'Donald v. Duff, p. 44. A Breach of the Peace - Relevancy. complaint charging against certain parties that they did loudly read, sing, pray, and preach, and did continue to do so for half-anhour, by which a large crowd was collected and the residents and others in the neighbourhood were annoyed and disturbed," held irrelevant. Hutton and Another v. Main, p. 45. Indictment - Instance Criminal Procedure (Scotland) Act 1887 (50 and 51 Vict. cap. 35), sec. 3. The Criminal Procedure (Scotland) Act 1887, sec. 3, enacts-"The Lord Advocate and his deputes shall not demit office on the resignation of the Lord Advocate, but shall continue in office until their successors respectively receive their appointments." An indictment at the instance of a Lord Advocate who had been appointed to another office, was served after the date of the royal warrant authorising the issue of the commission of his successor and the announcement of the appointment in the Gazette, but before the warrant had been received by the officials charged with the duty of issuing the commission. Held that at the date of service the Lord Advocate's successor had not received his appointment, and that the indictment was good. Halliday v. Wilson, p. 67. Salmon Fishing--Salmon Fisheries (Scotland) Act 1862 (25 and 26 Vict. cap. 97), sec. 7 -Weekly Close-Time. The Salmon Fisheries (Scotland) Act 1862, sec. 7, provides that the weekly close-time for net fishing shall continue from six o'clock on Saturday night till six o'clock on Monday morning. Where owing to a state of the tide which occurred once a fortnight, fishermen were unable to put their net out of fishing order at six o'clock, and did not do so till eight o'clock, keeping them out of fishing order till eleven o'clock on Monday morning-held that the provision of the statute must be complied with literally, that the fishermen ought to have put their nets out of order at the latest opportunity prior to six o'clock, and that accordingly they were guilty of a contravention. Osborne v. Anderson, November 4, 1887, 1 White 497, commented upon and distinguished. Irving v. Phyn, p. 275. Justiciary Cases-Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. c. 62), secs. 3 and 4-Refusal of Magistrate to State a Case. A charge brought by a private prosecutor having been found not proven and dismissed, the Sheriff - Substitute refused to state a case under the Summary Prosecutions Appeals Act 1875, and granted a certificate of refusal accordingly. A note having been presented under the Act for an order on the inferior Judge and the other party to shew cause why a case should not be stated, counsel for the inferior Judge stated, upon the authority of the inferior Judge, that upon the facts found proved by him no question of law could arise. The Court refused the note. Ross v. Macleod, p. 278. Summary Prosecution Oppression Right of Accused to Adjournment-Summary Procedure (Scotland) Act 1864 (27 and 28 Vict. c. 53), sec. 11. There is no legal duty upon a magistrate in summary prosecutions to inform the accused of his right to an adjournment of the trial, and the fact that he has not done so is not therefore of itself a sufficient ground for setting aside a conviction. Boyce v. Shaw, p. 279. Summary Prosecution-Special Defence -Notice-Alibi, The respondent in a prosecution before a Court of Summary Jurisdiction is not bound to give notice of a special defence. Howman v. Ross, p. 281. Cockfighting-13 and 14 Vict. cap. 92, sec. 2-Relevancy. Held, in accordance with decisions in England under the corresponding English statute, which is in the same terms, that a charge under the Act 13 and 14 Vict. c. 92, sec. 2, of aiding and assisting at cockfighting is irrelevant which does not set forth that the cockfighting took place in a place kept for that purpose. Brown v. Renton, p. 283. Title to Prosecute-Title of District Committee as Local Authority under the Public Health Act 1867--The Public Health (Scotland) Act 1867 (30 and 31 Vict. c. 101), sec. 48. A complaint brought by a district committee of a county council as local authority under the Public Health Act, charged certain persons with placing an infected person in a hackney carriage and in a railway carriage without notification to the owners. The loci at which the infected person was placed in the hackney carriage and railway carriage respectively were outwith the district. The complaint stated that she was conveyed in the railway carriage to S, but did not say that S was within the district, although it was stated at the bar to be so. Held that the offence charged consisted in the act of placing the infected person in the carriage, and was not an offence continuing so long as the person remained in the carriage, that it was alleged to be committed outwith the district, and that there was therefore no title to prosecute. The District Committee for Kelso District of County of Roxburgh v. Fairbairn and Ferguson, p. 284. Justiciary Cases-Public House-Public Houses Acts Amendment (Scotland) Act 1862 (25 and 26 Vict. cap. 35), sec. 20-Relevancy. The Public Houses Acts Amendment (Scotland) Act 1862 provides by section 20 that it shall be lawful for any justice of the peace, &c., on being satisfied by the personal examination upon oath of a credible witness that there is reasonable ground for believing that excisable liquors are trafficked in within any house not licensed for the sale thereof, or by any person not licensed to sell in such house, or that such liquors are illegally kept for sale at such house, to grant warrant to search for the same, and if more than one gallon be found, to seize it; and proceeds-"and the person occupying or using the premises when such liquors shall be found as aforesaid shall thereby be guilty of an offence." Held that, on a sound construction of the section, the fact that the liquors are trafficked in or kept for the purpose of traffic is essential to the constitution of the offence, and that a complaint which failed to set forth that fact was irrelevant. Batchen v. Morrison, p. 297. Unsound Meat—The Public Health (Scotland) Act 1867 (30 and 31 Vict. cap. 101), sec. 26-Relevancy. The Public Health (Scotland) Act 1867 provides by sec. 26 that the sanitary inspector may enter any premises and inspect any carcass, &c., "exposed for sale, or which there is probable cause for believing to be intended for human food;" and if it appear to him to be unfit for such food he may seize it and have it destroyed under warrant of the Sheriff; and proceeds"and the person to whom such carcass, &c., belong, or in whose custody the same are found, shall be liable to a penalty." Held that to render any person liable to such penalty, the unsound article must be in his premises exposed for sale for human food, or intended for human food, and that a complaint which charged a person with having within his premises unsound food "exposed for sale, or which there was probable cause for believing to be intended for human food," was irrelevant. Phillips v. Auld, p. 299. Public-House--Public-Houses Acts Amendment (Scotland) Act 1862 (25 and 26 Vict. cap. 35), sec. 17-Relevancy, Certain persons were charged with a contravention of section 17 of the Public-Houses Acts Amendment (Scotland) Act by trafficking without a licence in excisable liquors "at a tent in a grass field." Held that the charge was relevant-diss. Lord с Trayner, on the ground that the locus was a place incapable of being licensed. Hutcheon and Others v. Cadenhead, p. 300. Justiciary Cases-Salmon Fishings--Salmon Fisheries (Scotland) Act 1868 (31 and 32 Vict. c. 123), sec. 23-Failing to Remove Nets, &c.-Jurisdic tion. Held that the occupier of a fishery in England, the landing-place of which was in Scotland, could not be convicted of a contravention of section 23 of the Salmon Fisheries (Scotland) Act 1868 by failing to remove and secure all nets, &c., within thirty-six hours after the commencement of the annual close time for the district in which the landingplace was. Houghton v. Phyn, p. 476. --Suspension-Severity of Sentence. A bill of suspension of a sentence of imprisonment for breach of the peace in which the only ground of suspension alleged was the undue severity of the sentence in the circumstances, refused. Rodgers v. Henderson, p. 477. Failure to Educate Child - Education (Scotland) Act 1872 (35 and 36 Vict. c. 62), sec. 69-Education (Scotland) Act 1863 (46 and 47 Vict. c. 56), sec. 4. A married woman was prosecuted under the Education Acts for failing to provide sufficient elementary education for her child. Her husband, the child's father, usually resided with his family, but occasionally went to another part of the country to get work. At the date of the prosecution he had been absent for six months. Held that the father had not thereby ceased to be the person responsible under the Acts, and that the mother was not liable to prosecution. Macdonald v. Lamont, p. 478. Glasgow Police Act 1866 (29 and 30 Vict. cap. 273), secs. 184, 218, and 219-Unlicensed Carriage Let for Hire at a Railway Station. The Glasgow Police Act 1866, sec. 184, imposes a penalty upon person letting a hackney carriage for hire within the city without a licence. Sec. 218, after defining "stage carriage," enacts-"The expression hackney carriage shall mean every other wheeled carriage, whatever be its form or construction, which shall stand on hire or ply for a passenger for hire within the city, except a carriage let out to hire as a job carriage by the day, month, or other longer period, or a carriage kept by a proprietor within his own premises unyoked for the purpose of being let out to hire as a job carriage for any shorter period. The expression 'job carriage' shall not include any carriage licensed in pursuance of this Act." Section 219 enacts Nothing in this Act contained shall prevent any carriage proprietor from having one or more 'job carriages,' not being licensed carriages, at any railway station within the city." Held that the exemption in sec. 219 does not entitle a person to keep unlicensed carriages standing at a railway station and plying for hire for shorter periods than a day, and that a person who had done so was guilty of a contravention of section 184. Duncan v. Neilson, p. 479. |