month with an option to the charterers of continuing the charter for another six months at £225 per month; (2) that there was no option to cancel at the end of the first month; and (3) that there was no brokerage clause. Held that the second charter-party was not a renewal or continuation of the first, but was a separate and independent contract, and that it was not a contract which was within the contemplation of parties when the first contract was entered into, and that consequently the shipbrokers were not entitled to charge any commission in respect of it. Dawson Brothers v. James Fisher & Sons, p. 878. Agent and Principal-Liability of Agent to Third Party-Engagement of Traveller by Sales Manager Letter of Appointment Signed by Agent in his Own Name without Qualification — Master and Servant-Sales Manager-Traveller Contract Written Contract - Parole Evidence. Where a person signs a contract in his own name without qualification he is prima facie to be deemed to be a person contracting personally, and in order to prevent this liability from attaching, it must be apparent from other parts of the document that he did not intend to bind himself as principal. S. was appointed "exclusive sales manager for two trading companies over a certain district. By his agreement with one of them it was provided that the company were to pay all the expenses incident to their head office, including "clerks and servants' wages, travelling and other expenses," and he was to be at liberty to act as sales manager to the other company, and "to employ the clerks, servants, and travellers thereof." By his agreement with the other company it was provided that the company were to pay S. a fixed rate for every traveller who might be engaged upon their business, but the number of travellers who were to be so paid was not to exceed three without the written consent of the company. S. engaged J, as a traveller, by a letter in the following terms:-"I beg to confirm arrangement made with you this day, and appoint you as representative for the two companies, "on following terms:-45s. per week salary payable monthly and 1 per cent. commission on all orders." The letter was written upon paper belonging to one of the companies, with their name upon it. It was signed by S. in his own name without qualification of any kind, and did not bear to be granted by him in his capacity of sales manager to the companies. In an action at the instance of J. against S. for payment of the amount due to him by way of commission, the defender maintained that in engaging the pursuer he had acted as agent for the companies, that the pursuer was aware of this, and that his only claim for commission lay against them. Held that as the letter of engagement had been signed by the defender in his own name without any qualification, and there Alterations on Existing Buildings. See Amendment. See Process-Election Law. Process Appeal for Jury Trial. See Process. Appeal from Sheriff. See Process. Appeal to House of Lords-Petition for Disentail Interlocutory Judgment-Leave to Appeal. In a petition for authority to disentail, the three next heirs refused their consent, and after consenting to the usual remits they lodged objections to the report of the man of skill upon the valuation of the estate. The respondents further made averments as to the state of the petitioner's health as affecting the value of her interest in the estate. The Lord Ordinary remitted of new to the man of skill to report upon the objections to his report, and remitted to a inedical man to report on the state of the petitioner's health. The respondents reclaimed, and moved for a proof on both points. The Court having refused the reclaiming-note, the respondents craved leave to appeal to the House of Lords, on the ground that their case would be prejudiced if the remits were exhausted and the inquiry made before they could appeal. The Court granted leave to appeal. Bankes v. Anderson and Others, p. 56. Leave to Appeal Interlocutory Judgment-Possibility of Second Appeal. In an action at the instance of an agent concluding for payment of two sums as remuneration for professional services, the defender pleaded the triennial prescription in answer to the claim made in one of the conclusions, while with regard to the claim made in the other conclusion it was conceded by the parties that a proof was necessary. The Court having repelled the plea of prescription the defender petitioned for leave to appeal. The Court (diss. Lord M'Laren) refused the petition. Broatch v. Jackson, p. 748. Application. See Public-House. See Public Application for Certificate. Application for Order on Sheriff to State Application not Fulfilling Statutory Requirements. See Public House. Appointment by Court of New Trustee. See Trust. Appointment of Trustee as Paid Manager of Manufacturing Business. See Trust. Apportionment of Estate. See Trust. Appropriation of Payments by Trustees. See Bankruptcy. Aqueduct. See Acquiescence. Arbitration-Reference-Expenses-Fee to Arbiter -Lands Clauses Consolidation (Scotland) Act 1845 (8 Vict. cap. 99), sec. 32. Section 32 of the Eand Clauses Consolidation (Scotland) Act 1845 provides that in all cases of arbitration under it "the expenses of the arbiters or oversman, as the case may be, . . . shall be borne by the promoters of the undertaking." Held (rev. judgment of Lord Pearson) that these expenses included the reasonable remuneration of the arbiters and oversman. Murray v. North British Railway Company, p. 370. Reference Clause-Want of Specification-"Customary" Mode of Arbitration -Proof of Custom--Arbitration (Scotland) Act 1894 (57 and 58 Vict. cap. 13), sec. 1. In a contract of sale of timber it was provided that in the event of a dispute arising it should "be referred to arbitration in the customary manner of the timber trade.' It appeared from a proof that the usual though not the universal method of arbitration in the timber trade was by reference to two arbiters and an oversman. Held (aff. judgment of the Lord Ordinary) that the agreement to refer in the customary manner must be read as an agreement to refer to two arbiters and an oversman, and that it was a valid arbitration clause under section 1 of the Arbitration (Scotland) Act 1894. Observations (per Lord Stormonth Darling, Ordinary, and Lord Adam) on the proof of usage necessary to explain a custom of trade expressly referred to in a contract, as contrasted with that necessary to read into a contract a custom of trade not expressly referred to. Douglas & Company v. Stiven, p. 412. to -Decree - Arbitral - Reduction - Question Depending upon Disputed Facts Misapprehension by Arbiter as Question Submitted Refusal to Hear Evidence-Right of Party to Have Legal Assistance-Award of Gross Sum where Separate Claims Referred-Ultra fines compromissi. A firm of contractors undertook a contract to construct a sewer for the Corporation of Glasgow at certain scheduled rates. During the progress of the work it was found impossible, Owing to the nature of the ground, to drive a tunnel by the ordinary method. The contractors were thereupon instructed to continue the work by means of the air-pressure system, which was more costly, and the Corporation agreed to refer the question of the amount to be paid to them "in respect of the extra cost incurred by the necessary adoption of the said system of airpressure" to a certain arbiter who was a civil engineer. No formal submission was entered into. The parties subsequently agreed to submit to the arbiter certain items of the contractors' account other than those relative to the use of air-pressure, which they were unable to adjust. The arbiter issued an order for proof, and in a note appended thereto added-"Both parties having distinctly agreed that they were not to be represented by law-agents, the arbiter cannot now see his way to allow this arrangement to be broken unless mutually agreed upon." The contractors refused to accept a proof upon these conditions, and denied that they had entered into such an arrangement. The arbiter thereupon cancelled the order for proof and issued a decree-arbitral, by which he awarded a gross sum as "the total amount due in respect of the work done by the claimants in connection with this contract." The decree-arbitral did not show what sum was awarded in respect of the use of air-pressure, or in respect of the disputed items of the account. In an action by the contractors for reduction of the decree-arbitral-held that it fell to be reduced, in respect (1) that the first matter referred to the arbiter was the extra cost properly incurred by the pursuers in consequence of the use of airpressure, that such extra cost could only be ascertained by determining the amount of time and material properly expended for that purpose, that this was a question of disputed fact which the arbiter could not decide either by his own skill or by personal inspection that consequently he was not entitled to refuse to hear evidence, and that the condition prescribed by him that the parties should not have legal assistance was equivalent to such a refusal, the Court being of opinion that the alleged agreement to dispense with legal assistance was not proved; and (2) that by awarding a gross sum in respect of the total amount due in connection with the contract the arbiter had decided a question which was not submitted to him, and had not decided the questions which were submitted to him, viz., what was due to the contractors in respect of (a) the extra cost incurred by them in consequence of the use of air-pressure, and (b) the disputed items of the account. John Paterson & Son, Limited v. Corporation of Glasgow, p. 961. Arrest in Court. See Reparation. Assignation - Validity of Assignation Delectus Persona-Title to Sue. A, the owner of a patent for a fibre decorticating machine, entered into an agreement with B, the owner of an estate in Borneo, whereby it was stipulated that A should supply and erect one of the machines on B's estate, and if it proved satisfactory that B should pay for it a sum to cover cost, freight, and cost of erection, that terms should be arranged for the use of decorticators on the estate, and that the area under fibre cultivation should be increased by 25 acres per three months up to 1000 acres. A decorticating machine was supplied and erected by A. Within a year after the date of this contract he assigned the patent to a limited liability company, together with "licences, concessions, and the like," receiving certain shares in the company, inter alia, for this patent and for "contracts and concessions." Thereafter the company with consent of A brought an action against B, in which they sued as assignees of the contract between A and B, but ultimately restricted their claim to the sum due for the machine which was in fact supplied and erected by A. In defence to this action B pleaded "no title to sue." Held that, even if the contract was included under the assignation by A to the company (which was doubtful), it was not assignable, and that the plea of "no title to sue" must be sustained. Grierson, Oldham, & Company, Limited v. Forbes Maxwell & Company, Limited. June 27, 1895, 22 R. 812, followed. Opinion (per Lord Kincairney, Ordinary) that A having consented to the action brought by the company upon the contract, the fact of his consent might be taken into account in determining whether the contract had in fact been assigned by him to them, and that if the decision in this case had depended upon that question only, the plea of "No title to sue" could not have been sustained without inquiry. International Fibre Syndicate Limited v. Dawson, p. 451. Assignation. See Lease. Assignation of Pension of Debt. See Bankruptcy. Assignation of Rents. See Sale. Assignation to Creditors. See Bankruptcy. tion. See Repara Averment of Custom. See Custom. Averment of Special Agreement as to Remuneration. See Agent and Client. Award of Gross Sum where Separate Claims referred. See Arbitration. Bankruptcy Composition Arrangement— Pactum illicitum. A debtor who had entered into a composition arrangement with his creditors, assigned his share in a Crown lease, held by a copartnery of which he was a member, to one of the creditors who had acceded to the arrangement, in consideration of his advancing to the debtor money to pay the amount of the composition. Held that the assignation did not constitute a pactum illicitum. Hay v. Rafferty, p. 221. Bankruptcy-Sequestration - Conditional Discharge-Minister's Stipend-Assignation to Creditors. The Court has power, in an application by a parish minister for his discharge in bankruptcy, to make it a condition of the discharge that the bankrupt shall assign a portion of his stipend to his creditors. Circumstances in which held that £80 was a reasonable sum so to be assigned out of an income, from stipend, manse, and glebe, of about £270. Leslie v. Leslie's Creditors, p. 444. Sequestration-Discharge-Assignation of Pension for Debt-Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. c. 79), secs. 146 and 149. A bankrupt's estates were sequestrated in 1896. His chief asset was a life pension of £266 from the Board of Customs, and of this £120 a-year was, with the consent of the Commissioners, assigned to the trustee on the bankrupt's estate for payment of the latter's debts. In 1899, 10s. in the £ having been paid to his creditors, the bankrupt petitioned for his discharge, with a view to having the assignation of his pension recalled under section 149 of the Bankruptcy (Scotland) Act 1856. The petition was opposed by certain of his creditors. The Court refused the petition in hoc statu. Hurst v. Beveridge, p. 501. Trust-Deed for Creditors Appropriation of Payments by Trustees-Principal or Interest-Payment-Appropriation of Payments--Ïnterest. Ünder a trust-deed for creditors the trustees paid in all six dividends, of which the first four were made as being payments to account of the amount of the creditors' respective debts as at the date of the deed, the fifth as in payment of the balance of this amount and to account of interest thereon, and the sixth as in payment of the balance of interest therein from the date of the deed. After paying these dividends it appeared that there was still a surplus. One of the creditors, a firm who had assented to the trust-deed, and who had acquiesced in the method of payment adopted by the trustees in the case of all the dividends except the last, claimed payment out of the surplus of a balance of interest still due to them, which they brought out by attributing the dividends as an extinction primo loco of the interest due at the respective dates of payment. Held that their claim must be sustained, in respect that the dividends having been paid by the trustees and accepted by the creditors in the course of a realisation under a trust-deed, there had been no such appropriation of the payments as could effectually bar the creditors from claiming full payment of their interest bearing debts. Wilson's Trustees v. James Watson & Company, p. 545. Constitution of Bankruptcy—Notour Bankruptcy Insolvency Company Expiry of Charge without Payment-Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. c. 79), secs. 7 and 8--Debtors (Scotland) Act 1880 (43 and 44 Vict. c. 34), sec. 6 -Diligence. The mode of constituting notour bankruptcy introduced by section 6 of the Debtors (Scotland) Act 1880 only applies to cases in which imprisonment was rendered incompetent by the provi sions of that Act; and consequently, as it was never at any time competent to imprison a firm, a firm cannot be rendered notour bankrupt merely by insolvency concurring with the expiry without payment of a charge given to the firm as a firm only. Stewart's Trustees v. J. T. Salvesen & Company, p. 772. Bankruptcy-Sequestration - Deed of Arrangement - Sheriff - Appeal - Competency - Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), secs. 38 and 170. The Bankruptcy (Scotland) Act 1856 provides, sec. 170, that "6 it shall be competent to bring under the review of the Inner House. . . any deliverance of the Sheriff after the sequestration has been awarded (except where the same is declared not to be subject to review)." Section 38 provides that a proposed deed of arrangement subscribed by four-fifths in number and value of the creditors of a bankrupt, may be submitted to the Sheriff for his approval; "and if he shall be satisfied that such deed of arrangement has been duly entered into and executed, and is reasonable, he shall approve thereof and declare the sequestration at an end.' Held that a deliverance of a Sheriff finding that such a deed of arrangement is not reasonable, and refusing approval thereto, may be competently appealed to the Court of Session. Coutts & Company v. Jones, p. 797. no Sequestration Petition to Declare Sequestration at an End. The estates of a bankrupt were sequestrated in 1896 on a petition presented by himself, with consent of his son, who was a creditor. An abbreviate of the deliverance awarding sequestration was recorded, but further procedure was taken. The bankrupt died in 1897, and in 1900 a petition was presented to the Court by his son, with consent and concurrence of the only other known creditor on the estate, in which the petitioner averred that he and the concurring creditor had agreed to the division of the estate without incurring the expenses of bankruptcy administration, and craved the Court to declare the sequestration at an end, and to declare the petitioner entitled to complete his title as heir-at-law to the heritable estate of his father, and to grant warrant for recording the deliverance so to be pronounced in the Register of Sequestrations and in the Register of Inhibitions. The Court appointed a meeting of creditors for the election of a trustee on the estate, and thereafter, no creditor having attended the meeting, granted the prayer of the petition. Anderson, March 13, 1864, 4 Macph. 577, followed. Ballantyne, Petitioner, p. 798. Sequestration-Discharge of Bankrupt-Failure to Pay Five Shillings in the Pound-Failure to Pay not Due to Circumstances for which Bankrupt Responsible-Evidence Required-Trustee's Report not Necessarily Conclusive-Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. c. 79), sec. 146-Bankruptcy and Cessio (Scotland) Act 1881 (44 and 45 Vict. c. 22), sec. 6, sub-sec. (1). Where a bankrupt, who has been sequestrated for a period of two years, but has not paid adividend of 5s. in the £, presents an application for his discharge along with a favourable report by his trustee, and the application is not opposed by his creditors, he is not entitled de plano to his discharge, but must satisfy the Court that his failure to pay 5s. in the £ has arisen from circumstances for which he cannot justly be held responsible, and the trustee's report is not necessarily conclusive evidence to that effect. On such an application for discharge being made by a bankrupt cycle manufacturer, out of whose estate no dividend had been paid, the trustee, and on a remit by the Sheriff-Substitute the Accountant of Court, both reported that the bankrupt had not fraudulently concealed any part of his estate or effects, and that he had not wilfully failed to comply with any provision of the Bankruptcy Statutes, and from proof adduced by the bankrupt it ap peared that his failure to pay a dividend had been occasioned by reason of depression in the cycle trade, and consequent depression of the bankrupt's assets. The Court (rev. the judgment of the Sheriff Substitute) granted the application for discharge. Bremner, Petitioner, 852. Bankruptcy Statutory Notice of Deliverance in "Gazette' Non-Timeous Insertion-Rectification by Court-Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), sec. 48. Section 48 of the Bankruptcy (Scotland) Act 1856 enacts that "the party apply. ing for sequestration shall, within four days from the date of the deliverance awarding the sequestration (if awarded in the Court of Session) ... insert a notice in the form of Schedule B hereunto annexed, in the Gazette." The Gazette is published on Tuesdays and Fridays. The petitioner's estates were sequestrated by the Lord Ordinary on the Bills on Thursday 14th June 1900. His agents omitted per incuriam to insert a notice of the deliverance in the Gazette published on Friday 15th June, but the notice appeared in the Gazette published on Tuesday 19th June. Thereafter the statutory meeting for the election of a trustee and commissioners was held, and they were duly appointed. a petition presented by the bankrupt the Court pronounced the following interlocutor:-"Hold the notice of the first deliverance in the sequestration of the petitioner in the Edinburgh Gazette, of date 19th June 1900, as equivalent to a notice in the said Gazette within four days from the 14th June 1900, and decern." Taylor, Petitioner, p. 872. Sequestration On Bankruptcy-Sequestration - ProcedureReview- Appeal Competency-Deliverance of Sheriff Prior to Award of Sequestration-Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), secs. 16 and 170. Held that it was competent to appeal against a deliverance of a Sheriff in a petition for sequestration, pronounced before sequestration had been awarded, allowing a proof of an alleged verbal agreement between the petitioner and the debtor to the effect that the bond, upon which the petitioner founded as his document of debt, was not to be called up for a period of five years. Opinions (per Lord Adam and Lord Kinnear) that while there was nothing in the Bankruptcy Act 1856 to exclude appeals from a deliverance of the Sheriff prior to an award of sequestration, there might be cases in which the Court ought not to entertain such an appeal. Purves v. Groat, p. 875. Bankruptcy of Tenant. tion. Bequest of See Compensa "Free Residue." See Succes sion. Bequest of" Interest." See Succession. Bequest of Rent of Heritage. See Succes Betting. See Justiciary Cases. Bond and Disposition in Security. See Burgh -Slaughterhouse - Slaughterhouse within Two Miles of Burgh Burgh Police (Scotland) Act 1892 (55 and 56 Vict. c. 55), sec. 284-Public Health (Scotland) Act 1897 (60 and 61 Vict. c. 38), sec. 32. The Burgh Police (Scotland) Act 1892 provides, section 284"That where before the passing of this Act, or within one year thereafter, any burgh shall have erected slaughterhouses, no other slaughterhouse shall be erected within the distance of two miles from the existing boundaries of such burgh, unless either it is erected with the consent of the commissioners of such burgh, or is situated within the area of another burgh. The Public Health (Scotland) Act 1897, sec. 32, gives power to the local authority to grant a licence to carry on the business of a slaughterhouse in specified premises. Held that burgh commissioners who had erected a slaughterhouse under the provisions of the Burgh Police Act were entitled to interdict the use of premises within two miles for that purpose although these premises had been licensed by the local authority. Wishaw Burgh Commissioners v. Cleland Co-Operative Society, p. 46. Dean of Guild Title to Present Petition-Purchaser Holding Missives of Sale. The purchaser of a house, before the term of entry, and while his right stood on missives of sale, presented a petition to the Dean of Guild Court for authority to execute alterations on the property. Held that he had a good title to present the petition. Dobson v. Cranston & Elliot, Limited, p. 202. An Customs-Toll upon Cattle Brought within Burgh for Sale-Method of Levying-Liability of Auctioneer-ProcessAction of Exhibition Relative to Claims against Third Parties. The magistrates of a burgh were empowered to levy customs upon all cattle, &c., brought for sale within the burgh, and in particular had right to levy or collect customs at specified rates upon all cattle, &c., "brought for sale within or sold within an auction mart situated within the burgh. action was raised by the magistrates against the proprietor of the mart claiming the amount of customs which they alleged to be due in respect of the cattle, &c., which during the period of a year "have been consigned to the defenders within the said burgh or brought within and sold by the defenders within said auction mart belonging to the defenders." There was a further conclusion for production by the defenders of a list of the owners or consigners of the cattle, &c., or for exhibition of the defenders' books to enable the pursuers to ascertain this. The Court dismissed the action, holding that there was no ground of personal liability for the dues against the defenders, and that there was no obligation on them to exhibit their books or furnish information relative to a claim upon third parties against whom no action had been brought. Observations by Court as to the method in which it |