cient, if proved, to entitle a jury to infer malice, and that because it is a rule of law that where statements are made recklessly, without sufficient inquiry and without ordinary and reasonable regard to the character of others, such words may be held to have been uttered maliciously." Now there are no averments here which suggest recklessness on the part of the attendant or any undue disregard of the character of the pursuer. On the pursuer's own averments the slanderous statement was made only to himself, and he says nothing to exclude the case of the defenders-that the attendant in making it proceeded on the information of a young lady who had made a complaint to him as to the conduct of the pursuer. It is perfectly obvious that if a complaint of that sort is made and is believed by the attendant it is his duty to remonstrate with the person against whom the charge is made. It is, no doubt, said that the statement was repeated, but the circumstances in which it was repeated, as disclosed by the pursuer's own record, indicate to my mind conclusively that the attendant was not going beyond his proper duty. The pursuer says that he was taken to a private room, and that there the charge was repeated to the under-manager. That is exactly what one would expect where, as here, the charge had been denied by the pursuer, in order that it might be investigated and the proper course to follow determined by a superior authority. Beyond that there is absolutely no averment against this attendant. So far as one can gather from the pursuer's averments, he acted with perfect propriety, assuming that he was in the bona fide execution of his duty-which is the only assumption upon which the pursuer has a case at all against the defenders. Accordingly, it being now conceded, as was decided in Finburgh's case, that the attendant was privileged, there are no averments in this record to deprive him of his privilege-there is nothing from which one would be entitled to infer that he acted recklessly or that would justify the insertion of the word malice in the issue. I agree, therefore, that we must dismiss the action. LORD GUTHRIE-I am of the same opinion. The pursuer's pleadings not only disclose a case of apparent privilege on the part of the defenders, but they show that the pursuer is not in a position to meet that defence with the necessary answer, namely, an averment which, if proved, will destroy the defenders' apparent privilege. In the case of a limited company it has not yet been held that antecedent and independent malice on the part of one of their servants will infer liability on them, and in this case it is not necessary to consider that question, for nothing of the kind is suggested. All that is put forward is that there was recklessness, in the way of word and conduct, which would make the limited company liable. The recklessness in the way of word is in the shape of an alleged repetition of the slander. But that repetition was to the under-manager, who is said by the pursuer himself to have been one of those who were in charge of the establishment. The recklessness in the way of conduct might conceivably infer liability on the part of a limited company. But it does not appear to me that the averment of an altercation, as the pursuer narrates the circumstances, would suggest anything to throw a light back on what the servant had previously said in the way of inferring malice, but rather the reverse. LORD JUSTICE-CLERK-I entirely concur in the opinions which your Lordships have expressed. The Court recalled the interlocutor of the Sheriff, sustained the first plea-in-law for the defenders, and dismissed the action. Counsel for the Pursuer and Appellant-Christie. Agents--St Clair Swanson & Manson, W.S. FIRST DIVISION. GANDY, PETITIONER. Company-Winding-up-Inability to Pay Debts-Proof-Bill Dishonoured but not Protested-Other Evidence - Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 69), sec. 130, sub-secs. 3 and 4. In a petition under the Companies (Consolidation) Act 1908 for the winding-up of a company, the petitioner produced (1) a dishonoured bill of exchange, and (2) a correspondence which showed that, though the petitioner had repeatedly asked for payment of the bill, payment had not been made. The bill had not been protested, nor had any charge for payment been given thereon. The Court granted the first order. The Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 69) enacts:-Section 129"A company may be wound up by the Court, .. (v) if the company is unable to pay its debts. . . ." Section 130-"A company shall be deemed to be unable to pay its debts-(iii) if, in Scotland, the inducia of a charge for payment on an extract decree or an extract registered bond or an extract registered protest have expired without payment being made; or (iv) if it is proved to the satisfaction of the Court that the company is unable to pay its debts; and in determining whether a company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company." On 3rd October 1912 James Gandy, assistant-registrar, Neath, presented a petition under the Companies (Consolidation) Act 1908 for the winding-up by the Court of W. M. Mollison & Company, Limited, carrying on business as lithograpic printers at Anniesland, Glasgow. The petition (as amended at the bar) stated "That the said company is a private company with a nominal capital of £15,000, divided into 5000 6 per cent. cumulative preference shares of £1 each, and 10,000 ordinary shares of £1 each. Of these shares there have been issued 3880 preference shares, of which 3660 have been fully paid in cash, and 220 have been issued as fully paid up otherwise than in cash, and 4080 ordinary shares, of which 3750 have been fully paid in cash, and 330 upon which 10s. per share has been paid. That the petitioner is a creditor of the said company to the extent of £50, 12s. 3d., with interest thereon from 7th July 1912 to date. The said sum is due by the company to the petitioner as holder of a bill, dated 4th June 1912, for £50, 12s. 3d., payable one month after date, and drawn by R. S. Griffiths on, and accepted by, the said company. That the said company is unable to pay its debts. That the said bill for £50, 12s. 3d. was duly presented for payment and was dishonoured. On 10th July 1912 the petitioner's solicitors wrote to the said company demanding payment of the said bill, and on 12th July the company's solicitor replied admitting that the company was unable to meet the bill, and asking for delay to enable the company to take steps to secure the payment. A correspondence then ensued, and continued until 23rd September 1912, in which the petitioner repeatedly asked for payment, and the company repeatedly promised payment in a few days when certain arrangements had been completed. No arrangements have been made to enable the company to meet its liabilities, and the said bill still remains unpaid. The said bill and correspondence are produced herewith. That in these circumstances the petitioner humbly submits that the said company ought now to be wound up by the Court, and that an official liquidator should be appointed for that purpose.” Argued for petitioner-Esto that the bill of which the petitioner was the holder had not been protested, there was sufficient evidence in the correspondence that this company was unable to pay its debts. To require protestation in these circumstances would be to put the petitioner to unnecessary expense, expense which he was not likely to recover from the company. The Court without delivering opinions ordered intimation and service. Counsel for Petitioner-A. C. Black. Agents-Fraser & Davidson, W.S. Friday, October 18. FIRST DIVISION. (SINGLE BILLS.) MONTGOMERIE FLEMING'S TRUSTEES v. KENNEDY. (Ante, July 13, 1912, vol. xlix, p. 925.) Expenses Taxation - Photographs Obtained by Pursuer--Small Sums Involved. In an action for the enforcement of certain restrictions in the defender's title, in which the pursuers were substantially successful, the defender objected to the Auditor's report on the pursuers' account of expenses, in so far as he (the Auditor) had allowed an item of £9 odd, being the cost of certain photographs which the pursuers had obtained at their own hand, for the purpose of illustrating the subjects in dispute. The Court repelled the objection. Observed (per the Lord President) that it would be pessimi exempli to allow an objection involving a sum of only £9 odd upon a matter about which the Auditor was perfectly able to make up his mind. [The case is reported ante ut supra.] The Act of Sederunt, 15th July 1876, Table of Fees, chapter v (Jury Trials and Proofs), sec. 2, enacts-"Plans.-No allowance shall be made for plans lodged in process, or prepared for use of counsel, except such as are either ordered, or subsequently sanctioned, by the Court, prepared by mutual arrangement of parties, or proved and put in at the trial or proof." Hugh Tennant, Holland House, West Kilbride, and others, testamentary trustees of the late J. B. Montgomerie-Fleming, of Kelvinside, Glasgow, pursuers, brought an action of declarator and interdict against Alexander Kennedy, cabinetmaker and upholsterer, Byres Road, Glasgow, defender, in order to enforce certain restrictions in the title of his (the defender's) house. On 13th July the First Division_recalled the interlocutor of the Lord Ordinary (SKERRINGTON), who had dismissed the action, and found that the defender as proprietor of the subjects in question was not entitled to occupy them otherwise than as a self-contained lodging, and granted interdict against their being converted into a cabinetmaking or upholstery business. The Auditor having lodged his report on the pursuers' account of expenses, the defender objected thereto in so far as he (the Auditor) had allowed an item of £9 odd, being the cost of certain photographs which the pursuers had obtained for the purpose of showing the alterations which the defender proposed to make. Argued for defender-The cost of the photographs in question was an unnecessary expense, as the case had never gone to proof. Moreover, they had been obtained . Fleming's on the pursuers' instructions alone, and their preparation had neither been sanctioned by the Court nor agreed to between the parties. The item, therefore, must be disallowed-A.S., 15th July 1876, Table of Fees, chap. v., sec. 2; City of Aberdeen v. School Board of Aberdeen, 15th November 1897, 5 S.L.T. 182. Counsel for pursuers were not called on. LORD PRESIDENT-I am of opinion that this objection must be repelled. In the first place, my recollection is that the photographs were quite useful at the hearing of the case. But I do not rest my judg ment upon that. Again and again it has been held in this Court that we are not sitting as taxing - masters, and it would be pessimi exempli to allow an objection involving a sum of only £9 odd upon a matter about which the Auditor is perfectly able to make up his mind. LORD KINNEAR-I quite agree. I think this is merely a taxing question to be decided by the Auditor. LORD JOHNSTON-I agree. LORD MACKENZIE-I also agree. The Court repelled the objection. Counsel for Pursuers-D. P. Fleming. Agents-H. B. & F. J. Dewar, W.S. Counsel for Defender - D. M. Wilson. Agents-Patrick & James, S.S.C. Lease Right in Security A bond and disposition in security was granted by the proprietor of certain lands during the currency of a lease of the minerals. When this lease expired, a new lease was entered into which contained certain unusual provisions unduly favourable to the tenant. In a question between the bondholder and the mineral tenant as to the validity of the new lease, held (per Lord Čullen) that the terms of the lease were such that it could not be regarded as an act of fair and reasonable administration on the part of the proprietor, and that the lease was therefore not binding on the bondholder. William Reid, 4 Clarendon Terrace, Dundee, raised an action against James M'Gill, Castlecary, Stirlingshire, in which he sought to have it declared that he was absolute proprietor of the whole metals and minerals in and under the lands of Coneypark and Tomfyne in Stirlingshire, and that the defender had no right, title, or interest in the same as lessee, tenant, occupier, or otherwise. The defender brought a counter-action against the pursuer, inter alia, for declarator that he (M'Gill) was tenant of said metals and minerals, in virtue of a lease entered into between him and the former proprietor of the lands in question. Proof was allowed and evidence was led before the Lord Ordinary. The facts proved and the contentions of parties sufficiently appear from the opinion of the Lord Ordinary infra. The following authorities were referred to at the hearing:- Gloag and Irvine, Rights in Security, p. 130; Cooke, Mortgages, 1904, p. 708; Rankine, Law of Leases (2nd ed.), chap. ii; Abbott v. Mitchell, May 25, 1870, 8 Macph. 791, 7 S. L. R. 493; Ritchie v. Scott, March 10, 1899, 1 F. 728, 36 S. L. R. 540. On Duration of Leases-Entail (Scotland) Act 1882 (45 and 46 Vict. cap. 53), sec. 9; Entail Improvement Act 1770 (10 Geo. III, cap. 51), sec. 1. On Fair Rent-Valuation of Lands (Scotland) Act 1854 (17 and 18 Vict. cap. 91), sec. 6. LORD CULLEN - The principal question which arises for decision in these cases is whether a certain lease of minerals granted by the proprietor of the lands of Coneypark, &c., in the county of Stirling, is valid and effectual in a question with a creditor holding a bond and disposition in security over the property granted and recorded prior to the said lease. The property of Coney park, &c., was purchased by John S. Street (the granter of the bond) in 1898 at the price of £12,000. To meet the price pro tanto he borrowed £10,000 on bond and disposition in security from Mr Wm. Reid, the pursuer of the principal action now before me. The coal and most of the other minerals were then under lease to a company called the Kilsyth and Bonnybridge Coal Company, Limited. This lease was dated in 1895, and was terminated by a renunciation granted by the liquidator of the tenant company in 1900. John S. Street was a speculator possessed of little or no means, and apart from the loan of £10,000 obtained from Mr Reid, seems to have been sustained in his venture by advances made by his brother William B. Street, which ultimately amounted to about £11,000. After acquiring the property John S. Street associated himself with Mr Andrew M'Gill, who had been a colliery manager, who is the defender in the principal action and pursuer of the other action of declarator and reduction. Mr M'Gill had practical experience as a colliery manager, but he, like John S. Street, his employer, was a man of no means. He was employed by John S. Street under the writing dated 22nd December 1898, in terms of which he was to be paid £250 per annum for taking full management of the brickwork and colliery on the property. The property included clay suitable for the making of bricks, and after purchasing it John S. Street erected buildings and put down plant for brickmaking purposes at an outlay which is varyingly estimated at £3000 to £6000. The money appears to have been borrowed by him from his brother W. B. Street. John S. Street having so expended a large amount in setting up a brickwork, proceeded to work it, but without success. In 1903 matters came to a standstill. The brickwork was a failure, and there was no money available to work the coal. In 1903 an attempt was made to float a company to take up the property along with a business at Inverkeithing carried on by John S. Street's brothers. A prospectus was issued, but the enterprise proved entirely unsuccessful. In 1904 the project was mooted of constituting a lease of the minerals in the person of Mr M'Gill. M'Gill had no money, and could not himself work the minerals. But as the previous efforts to sell had failed, it seems to have been considered a good move to invest M'Gill with a lease. M'Gill does not seem to have been able to command any financial backing, and I do not profess to understand clearly all that the parties had in view in handing over the mineral rights under a lease (for fifty years) to a tenant who could not work them, and who had no tangible prospect of obtaining money through a company or otherwise to procure them worked. The possibility or probability of M'Gill being unable to turn the lease to any account must have been obvious to the parties, but the proof does not disclose what arrangement, if any, was made as to the function of the lease in that event. It was granted as an instrument to be used for the purpose of exploiting the minerals one way or another, and one idea which I think the parties entertained was that the existence of a lease on easy and favourable terms might be attractive enough to bring about the formation of a tenant company. What followed on the lease was (1) that M'Gill did nothing either in floating a company to take over the lease or in the way of working the minerals himself; (2) that John S. Street, with the co-operation of his brothers W. B. Street and Thomas Street, endeavoured unsuccessfully to sell the property in London and elsewhere; (3) that in connection with these endeavours M'Gill on the 31st January 1905 granted an assignation of the lease to W. B. Street, who obtained also a disposition of the property from John S. Street, ex facie absolute, but really in security of his advances; (4) that W. B. Street executed a renunciation of the lease on 24th September 1907; (5) that in June 1906 John S. Street was sequestrated; and (6) that in 1910 the bondholder, Mr William Reid, foreclosed in virtue of the Act 57 and 58 Vict. cap. 44. Having thus foreclosed under his bond, Mr Reid now raises the question whether the foresaid lease granted by John S. Street to M'Gill is a valid and effectual right in a question with him as a heritable creditor who did not consent to it. In the principal action Mr Reid founds on the assignation of the lease by Mr M'Gill to W. B. Street and the renunciation by the latter as having extinguished the lease. To meet this contention M'Gill raised the second action, in which he seeks to have it declared that the assignation, although ex facie absolute, was truly granted in trust, and that W. B. Street, the assignee in trust, acted ultra vires in renouncing it. The case made by M'Gill is that in course of the endeavour to sell the property he was asked to assign his lease to W. B. Street, who was also to obtain an ex facie absolute disposition of the property from his brother John, so that W. B. Street might thus have a more free hand in negotiating for a sale-that is to say, might be in a position to sell the property free of the lease; and that he, M'Gill, ultimately agreed to grant and did grant the assignation for this purpose, but on the footing that, failing a sale, he was not to be held as having parted with the lease. It is somewhat remarkable that M'Gill should have made no stipulation as to what he was to get out of the proceeds of a sale should one be effected. reason for this, as indicated in the evidence, perhaps was that it was highly speculative on what terms a sale could be effected, if at all, and that M'Gill at that time trusted the Streets to deal fairly with him in the event of their succeeding in selling. It is, I think, less difficult to believe that M'Gill should have acted on this footing than to believe that he should have agreed gratuitously to strip himself of the lease altogether. And had he agreed to take the latter course it would have been more natural that he should have renounced the lease rather than have assigned it. The The assignation was granted in January 1905. At the same time W. B. Street obtained an ex facie absolute disposition of the property from John S. Street. Thereafter W. B. Street made prolonged efforts to effect a sale of the property but without success. In June 1906 John S. Street was sequestrated. W. B. Street took up the position of claiming to be owner of the property under his ex facie absolute conveyance. He was still apparently in hopes that he might sell it, but he was harassed by the bondholders, and in September 1907 he was induced to sign a renunciation of the lease with the view of obtaining some degree of respite. M'Gill was not consulted regarding the renunciation. Efforts were subsequently made to obtain a renunciation from him, but he refused to grant one. [His Lordship, after consideration of the evidence, granted decree of declarator as concluded for in M'Gill's action.] I turn now to consider the question raised in the original action regarding the efficacy of the lease in a question with Mr Reid, the bondholder. The argument submitted to me on this matter does not raise the general question as to the powers of a v. M'Gill 12, proprietor who has granted a heritable bond to excavate and carry away valuable minerals forming part of the corpus of the security subjects-either by his direct act or through a tenant-without the consent of the bondholder, whose security is thereby affected. The footing on which Mr Reid's case has been presented by his counsel is that, inasmuch as the minerals were being wrought under lease at the time when the bond was granted, he was bound to contemplate a continuance of the workings as a feature of the ordinary administration of the property; and that when the then current lease came to an end, as it did in 1900, John S. Street, the proprietor, could competently have granted a new lease effective against the bondholder provided the lease was in such terms as to represent a fair and reasonable act of administration not unfairly trenching on the bondholder's security. Mr Reid maintains, however, that the lease granted to M'Gill does not represent such fair and reasonable administration, and that it is materially prejudicial to his security so as to be not binding in a question with him. I have already explained the circumstances attending the granting of the lease. The terms of it did not form the subject of any real negotiation or bargaining between the parties. It was roughly drafted, without the intervention of a law agent, by Thomas S. Street, and after being approved by M'Gill was put into the hands of Mr Robert Stewart, solicitor, Edinburgh, in order that he might give a more formal expression to its clauses and have it engrossed and executed. Mr Stewart was not asked to advise as to the stipulations of the lease, but, as he observed the absence of any provision for a fixed rent, he added a clause which I shall make reference to hereafter. It is obvious enough, I think, that in the adjusting of the lease the idea of making it one which would be fair and reasonable from the point of view of a bondholder was not in the minds of the parties. What they desired, I think, to achieve was the making of a lease which would prove attractive in connection with efforts to be made to float some kind of company to take up the working of the minerals. And while the motives which actuated the parties and the conditions under which the lease was engineered may be said to have no direct and immediate bearing on the question at issue, viz., whether the lease on its own merits represented a fair and reasonable exercise of the powers of the proprietor effective in a question with a bondholder, they at least prepare one's mind for the possibility of finding that the terms of the lease were otherwise conceived. The challenge of the lease made by Mr Reid does not rest on any one feature of it as in itself conclusive, but on a combination of various features which it presents. I shall now consider those which were advanced as being the most important. The first is the absence of any exclusion of assignees or any control on the part of the landlord of the tenant's power of assignation. This is, I think, unusual. The next is the duration of the lease, which is fifty years. A term of fifty years or longer is by no means unknown in mineral leases, but I think that it is exceptional. Some guidance is, I think, to be found in the legislation dealing with the subject. The Entail Acts, the Trust Acts, the Heritable Securities Act of 1894, and the Lands Valuation Act of 1854, all reflect the view that the maximum limit in ordinary circumstances is thirty-one years. This is by no means conclusive; but it points to a lease for fifty years as being one of exceptional duration. This topic connects itself with the next one, which is the stipulation for royalties. I am not prepared to go further in regard to the amounts of the royalties, viewed as at the date of the lease, than to say that they were on the side of being indulgent to the tenant. But there is no provision of a sliding scale. A sliding scale is a thing which forms a provident and proper future of a lease of exceptional duration, so that in the event of any material rise in the price of coal the landlord may fairly share with the tenant the benefit of the rise. In the next place, the lease does not stipulate for any fixed rent for the minerals. A stipulation for fixed rent is an almost invariable feature of a lease of minerals, and the function of the stipulation, in the interest of the landlord, is so obvious that I do not consider it necessary to enlarge upon it. As this lease was sketched out originally it was a complete blank on the subject. Mr Robert Stewart was struck with the fact, and, although not asked to advise the parties, he added to the lease a clause binding the tenant "to make all practicable exertions for working, putting out, and disposing of the minerals hereby let." This is a very vague obligation. I have not been able to find that it is a usual clause in mineral leases, and it certainly appears to me to be a very ineffective substitute for what is the usual stipulation of a fixed rent. The lease stipulates for a fixed rent of £50 for the brickworks, on which at least £3000 had been expended, and £50 for twenty miners' cottages, which rents were apparently adopted from the valuation roll, and seem to be, on the evidence, unduly low. The next matter to which the pursuer calls attention is a very peculiar clause in the lease, running as follows-"And whereas the second party [the tenant] has acquired in virtue of this lease from the first party the whole plant, fittings, buildings, and erections at or in connection with the various mines and pits on the said land, and the said mines and pits themselves as well as the plant and buildings in connection with the brickwork, it is hereby declared and agreed that the said plant, fittings, buildings, and erections, and the said mines and pits, shall be deemed and held to have been erected and the said mines and pits sunk and equipped with machinery and plant by the second party, and to fall under the same provisions of |