was a customer. The Court refused the diligence, there being practically no dispute as to the defender's financial position. Opinion (per Lord Young) that the pursuer of an action of damages for breach of promise of marriage is not entitled to a diligence to disclose the defender's financial position; contra (per Lord Trayner) that such a diligence would be competent if the question of the defender's financial position was material to the case, and was in dispute. Somerville v. Thomson, p. 411. Process - Declarator-Relevancy -- Trust — Competency of Declarator where there is no Civil Right-Church. A church in an English town was vested in trustees, under an indenture providing that the managers should collect the seat-rents and subscriptions, and apply the money to the repair, maintenance, management, and endowment of the church, and pay the surplus to the minister, who was to be a party to the indenture, and to be elected by the congregation. The indenture conferred upon the trustees power to sell the church, and declared that the trustees should hold the money arising from such sale "for such purposes as the majority of the members for the time being of the Presbytery of Edinburgh at a meeting of the said Presbytery may in writing direct." The trustees exercised the power of sale, and the congregation was in consequence dissolved. The proceeds of the sale lay unappropriated in the hands of the trustees. The minister of the church raised an action against the Presbytery of Edinburgh and the trustees, to have it declared that the Presbytery might lawfully direct that a part of the money arising from the sale should be paid to him or applied for his benefit. averred that a majority of the members of the Presbytery were favourable to his claim. Held (aff. judgment of Lord Kincairney) that the action was irrelevant, and must be dismissed, on the ground that the pursuer had failed to. set forth any civil right as an object of the trust, and that he was not entitled to declarator that an application of the money which the Presbytery had not proposed to make was lawful. Opinion (per Lord M Laren) that the minister or members of the dissolved congregation would, in the event of a proposal by the Presbytery to misapply the trust-funds, have a title to enforce the limitations of the trust, and that the Presbytery would have a title to declarator that the mode in which they might propose to execute the power conferred on them was a good execution of the trust. Mackie v. Presbytery of Edinburgh and Others, p. 479.

He

Sheriff Appeal-Value of CauseAffidavit and Claim in Cessio. The competency of an appeal under the Sheriff Court Act 1876, sec. 26, sub-sec. 4, and the Debtors Act 1880, sec. 9, sub-sec. 4, to cessio is, as regards the Court of Session in a process of value of the cause, to be determined by the debt alleged to

be due in the affidavit and claim upon which the deliverance appealed from is pronounced. Observations by Lord M Laren on the right of appeal by reclaiming-note under 6 and 7 Will. IV. cap. 56, in processes of cessio. Henderson v. Grant, p. 483.

Process-Appeal-Competency--Judicature Act (6 George IV. cap. 120), sec. 40– Interlocutor of Sheriff Allowing Proof "of Consent." In an action of damages raised in the Sheriff Court in which the defender pleaded that the pursuer's averments were irrelevant, the Sheriff "of consent before answer" allowed a proof. An appeal by the pursuer to the Court of Session for jury trial under the Judicature Act (6 George IV. cap. 120), sec. 40, dismissed as incompetent (dub. Lord M'Laren), in respect that the interlocutor appealed against, being pronounced “of consent, before answer," set forth a contract between the parties as to the procedure to be followed in the litigation by which both were bound. Paterson v. Kidd and Another, p. 568.

Reclaiming - Note Note Competency Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 11-Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 53. Held (following Baird v. Barton, June 22, 1882, 9 R. 970, and Crellin's Trustee v. Muirhead's Judicial Factor, October 21, 1893, 21 R. 21) that an interlocutor decerning for and modifying expenses, pronounced after an interlocutor disposing of the cause otherwise, and reserving the question of expenses, may be reclaimed against at any time within twenty-one days from its date. Taylor and Others v. M'Gavigan and Another, p. 569.

Dominus Litis-Expenses. Held that to establish the character of dominus litis, and thus burden one who was not a party to a suit with liability for expenses, it must be shown that the party on whom it is attempted to impose liability was in reality the principal, disclosed or undisclosed, in the suit, and that the actual litigant was merely his agent. Fraser v. Malloch, p. 594.

Appeals from Inferior Courts Competency-Effect of Appeals under Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 69. By section 69 of the Court of Session Act 1868 it is enacted that appeals under the Act from inferior courts " shall be effectual to submit to the review of the Court of Session the whole interlocutors and judgments pronounced in the cause, not only at the instance of the appellant but also at the instance of every other party appearing in the appeal, to the effect of enabling the Court to do complete justice without hindrance from the terms of any interlocutor in the cause, and without the necessity of any counter appeal." respondent in a Dean of Guild petition appealed against a judgment of the Dean of Guild on the ground that he had no jurisdiction. Another respondent in the same petition, who had also pleaded no jurisdiction" in the Dean of Guild Court,

A

took advantage of the appeal to maintain his own plea-in-law before the Court. The Court, while finding that the first respondent had failed to show that the Dean of Guild had no jurisdiction in his case, sustained the plea-in-law of the second respondent, and dismissed the action so far as directed against him. Greenock Board of Police v. Shaw Stewart, p. 609.

Process-Appeal from Sheriff Court-Competency--Value of Cause-Debts Recovery Act 1867 (30 and 31 Vict. cap. 96), secs. 12 and 13. Where in an action brought under the Debts Recovery Act 1867 it appears that the petitory conclusions are the limit of the question for judgment, and the pursuer fails to show that any question involving a larger sum than that concluded for is presented for determination, the value of the cause must be taken to be the amount of the sum sued for. Held, in accordance with this principle, that where in such an action the sum sued for was under £25, the judgment of the Sheriff was final under sec. 12 of the Debts Recovery Act 1867. Drummond v. Hunter, January 12, 1869, 7 Macph. 347, approved and distinguished. Opinion (per Lord Kinnear) that in any process competent under the Debts Recovery Act 1867, sec. 2, the value of the cause must be the highest sum for which decree can be given. The Standard Shipowners Mutual Freight, &c., Association, Limited v. Taylor, p. 647.

Caution for Expenses · Bankrupt Pursuer Damages for Slander. In an action of damages for slander by an undischarged bankrupt, the Court, after issues had been adjusted, ordained the pursuer to find caution for expenses. Powell v. Long, p. 693.

Sheriff - Reduction - Competency. Court of Session Act 1868 (31 and 32 Vict. cap. 100), secs. 64, 65, 66, 67-Act of Sederunt,10th March 1870, sec.3, sub-sec.5. Held (by Lord Kincairney, Ordinary, and acquiesced in), that the Court of Session Act has not made incompetent the reduction of an extracted Sheriff Court decree. Opinion (by Lord Kincairney) that it was not incompetent to include in the summons of reduction declaratory conclusions other than those in the Sheriff Court petition in order to elucidate more clearly the rights of parties. Taylor's Trustees v. M'Gavigan, p. 707.

Preliminary Pleas-“All Parties not Called"-Superior and Vassal--Reservation of Minerals-Mineral Lease-Damages. A proprietor granted a feu-contract containing a reservation of the minerals in the subjects feued, and of power to work them "but not to occupy the surface." The feuar was bound to erect and maintain buildings of a certain value. The superior having leased the minerals to tenants, subsidences took place in consequence of their operations. In an action of damages raised by the feuar against the superior in respect of injury sustained through the subsidences, the defender averred that the damage

was caused by the mineral tenants' disregard of the prohibitions contained in their lease, and pleaded, "all parties interested not called." Held (rev. the judgment of Lord Stormonth Darling) that the pursuer was not bound to call the mineral tenants. Highgate & Company v. Burgh of Paisley, p. 722. Process-Proof-Diligence and Recovery of Writs-Confidentiality Reports by Railway Servants to Railway CompanyReparation Railway. In an action of damages against a railway company for the death of a passenger, at the instance of his widow and children, occasioned, as alleged, by the fault of the railway company's servants, the pursuers moved for a commission and diligence for recovery of reports made by the railway company's servants to the company with reference to the accident to the deceased. The Court refused to grant diligence, on the ground that such documents were confidential. Stuart v. Great North of Scotland Railway Company, p. 730.

Salmon Fish

Petition - Intimation eries (Scotland) Act 1842 (25 and 26 Vict. c. 97), secs. 18 and 24-Reconstitution of Lapsed District Board. In a petition presented for a remit to the Sheriff to reconstitute a district board, which had been constituted in terms of the Salmon Fisheries (Scotland) Act 1862, but which had lapsed upon the expiry of the three years' term of office of the original members without a new board having been elected, the Court ordered intimation in common form, and also to the Secretary for Scotland, and advertisement in certain newspapers. Duke of Argyll and Others, Petitioners, p. 731.

Petition-Intimation.

Observations

(per Lord President) as to the desirability of greater attention being paid in preparing petitions to the question to whom intimation must be made. Scottish Employers' Liability and Accident Assurance Company, Limited, Petitioners, p. 731.

Remit-Remit to Taxing Master of House of Commons to Report on Bill of Costs of Promoter of Company. The Lord Ordinary having remitted to the Taxing Master of the House of Commons to report on certain objections lodged by a company in an accounting to the account of the promoter of the company, with instructions to the Taxing Master to distinguish any charges not incident to the promotion of the company's private Act of Parliament, that official presented his report taxing the account at a certain sum. Objections having been lodged to his report, and the Lord Ordinary having again remitted to the Taxing Master to report on these objections, the Court recalled his interlocutor, the objectors having failed to show that the Taxing Master had mistaken the nature of the duty entrusted to him or had come to a wrong conclusion on a matter of principle. Edinburgh Northern Tramway Company v. Mann & Beattie, p. 752.

See Election Law - Dean of Guild

Where

Prohibition. See Mines and Minerals. Promissory-Note. See Bill of Exchange. Proof-Road-Determination by Secretary of State - Report by Commissioners Appointed under the Roads and Bridges Act 1878, sec. 90-Competency. under the Roads and Bridges Act 1878, sec. 90, commissioners had reported, and the Secretary of State had issued a determination on their report, held that it was competent to look at the report in order to discover what questions were raised before the commissioners, and so to enable the Court to construe the determination itself. Graham and Another v. Duke of Argyll and Others, p. 252.

Diligence for Recovery of Documents -Public Department-Instruction to Servants of Department-Reparation. An Excise officer raised an action of damages against a firm of brewers for injuries caused to him by falling down a hatchway used for the purpose of hoisting yeast in their brewery, while he was engaged in drawing and tasting samples from the liquor in the fermenting vessels. The defenders pleaded contributory negligence, and averred that the pursuer was bound to make, and had in fact made, himself well acquainted with the system of working employed in the defenders' brewery, and in particular with the times at which the yeast was hoisted; further, that he had sent two of the defenders' servants to draw the samples instead of drawing them himself, it being part of these servants' duty to attend to the hatchway when it was open, and that in so doing the pursuer had contravened a rule of the Excise Department. The defenders having applied for a diligence to recover the instructions issued by the Inland Revenue to their officers as to their duties (a) with respect to drawing samples from fermenting vessels in breweries, and (b) with reference to making themselves acquainted with the system of working adopted in breweries, and in particular with the time at which yeast is placed in the tuns therein," the Board of Inland Revenue compeared and opposed the application, on the ground that the disclosure sought was contrary to public policy, and would be prejudicial to the public service. The diligence refused. Leven v. Young & Company, March 17, 1818, 1 Murray 356, referred to by the defenders; Earl v. Vass, July 17, 1822, 1 S. App. 229, and Arthur v. Lindsay, March 8, 1895, 22 R. 417, referred to by the Inland Revenue. Tierney v. Ballingall & Son (Inland Revenue compearing), p. 379.

Loan-Writ of Debtor-Parole Evid

dence Writ of Executor - Delivery Cheque. Documents insufficient to prove a contract of loan are insufficient to let in parole evidence of the loan; for parole evidence is not admissible except for the purpose of establishing facts extrinsic to the writing, so as to enable a creditor to prove the loan, not by the parole evidence itself, but by his debtor's writ. Laidlaw v. Shaw, March 5, 1886, 13 R. 724, distinguished; Williamson v. Allan, May 29, 1882, 9 R.859, explained and approved. In a multiplepoinding raised for the purpose of distributing the estate of a deceased testator, a claimant averred that she had "from time to time made loans of money to him several of which were of small amount," and that in 1865 she advanced him on loan a sum of £200, the total amount of the alleged loans being £390. In support of her averments the claimant produced (1) a cheque for £200 drawn by her in 1865 in favour of deceased, marked paid by the bank, but not endorsed by any payee; (2) an affidavit and schedule by the executrix of the deceased for return of inventory duty, which bore that at his death there had been outstanding, inter alia, a debt of £200 due to the claimant, which the executrix had paid; (3) a probâtive minute of agreement between the executrix and a son of the deceased, whereby the latter agreed to take over the stock and plenishing of a farm for a certain sum, less the amount of certain debts due by the trust-estate which he undertook to pay. To this minute was appended a state of the trust funds, showing, in addition to the foresaid debts, a debt due to the claimant of £390. state was signed by the parties to the agreement, and tested, and a docquet was added to the minute and state, signed by the testator's children, beneficiaries under the settlement, approving of the transaction recorded in the minute, and approving and holding as correct the state of the trust funds. Held (rev. judgment of Lord Moncreiff, Ordinary, who had allowed a proof) that the claim must be repelled on the grounds (1) that the cheque afforded no evidence that the claimant's money had been drawn by the deceased, (2) that the affidavit was not evidence of the existence any more than it would have been evidence of the payment of the debt, (3) that the minute with accompanying state and docquet not being obligatory in itself, and not having been delivered to the claimant, was ineffectual to prove the debt; and therefore (4) that the principle above stated applied. Duncan's Trustees v. Shand, January 7, 1873, 11 Macph. 254, approved. Observed (per Lord Kinnear) that even if the third document produced had purported to be an admission of debt by the executrix addressed to the claimant, and put into her hands to be held as her document, it would not be binding on the trust-estate unless and in so far as the executrix was beneficially interested therein. Briggs v. Swan's Executors, January 24, 1854, 16 D. 385, and M'Calman v. M‘Arthur, February 24, 1864, 2 Macph.

The

678, explained and approved. Mounsey (Dunn's Trustee) v. Hardy & Others, P. 438. Proof— Writ or Oath-Contract Relating to Leasehold Reghts-Innominate Contract of Unusual Character. Averments in an action for implement of the sale of a business of which the Court allowed a proof before answer, reversing the judgment of the Lord Ordinary, who held that the alleged contract could not be proved by parole, in respect that it provided for the transfer of leasehold rights, and was, moreover, an innominate contract containing stipulations of an unusual character. Moncrieff v. Seivwright, p. 456.

Admissibility of Evidence - Public Policy-Evidence of Government Inspector as to Official Report. In an action of damages against a railway company for personal injuries sustained through an accident on the line, the defenders admitted fault, but pleaded contributory negligence. The pursuer proposed to call an inspector of the Board of Trade as a witness, and to examine him as to a report he had made on the accident. Counsel for the Board of Trade appeared and objected. Opinion (per Lord Stormonth Darling) that as a general rule it was undesirable that officers of public departments should be examined as to their official reports, and that in this case it was unnecessary as the defenders admitted fault. Gibson v. Caledonian Railway Company, p. 638.

Admissibility of Evidence-Filiation and Aliment-General Statement in Record Allowed to Go to Proof without Objection. In an action of filiation and aliment for an illegitimate child, born on 7th December 1895, the defender in his defences denied the pursuer's statements, and made a general averment "that about 1894 and 1895 the pursuer was indulging in sexual intercourse with several young men living in her own neighbourhood, among them being three persons named, and that one of them was the father of the child. The case having gone to proof without objection on the part of the pursuer-held that the defender was entitled to ask two of the persons, who appeared as witnesses for the defence, whether on particular occasions they had connection with the pursuer. Barr v. Bain, p. 780. See Cautioner-Process-Lease. Proof of Extrinsic Agreement. See Bill of Exchange.

Proof of Loss. See Trust.

Proof of Paternity. See Parent and Child. Proof of Possession. See Property. Property-Feu-Disposition-Access-Implied Grant of Access. In 1872 a superior granted a feu to A, who was taken bound to build "a substantial dwelling-house" upon the feu, "to be used in the meantime as a bakehouse." He was also taken bound to erect a fence along the east of the feu. The feu was bounded on the east by a part of the superior's property, still unfeued, and on the west by ground already belonging to A. At the time the feu was granted, there was no existing access to A's feu from the superior's

lands, but during the building of the bakehouse the superior allowed the feuar to cart materials from a public road along the side of a field forming part of his unfeued lands to the east, and the same access was afterwards used by A to cart stores to the bakehouse. There was also an access for foot traffic to the bakehouse from other lands held by A to the west, by which it was possible to bring stores to the bakehouse, but at greater labour and expense than by the cart access to the east. In 1894 the lands to the east were feued off to B, subject to the declaration that the grant in his favour was burdened with the servitude of any legal right of access competent to A. In an action by B to restrain A from using the cart access in question, A claimed that a grant of the access in his favour must be implied in respect (1) that a cart access was necessary to the reasonable and convenient use of the bakehouse, the erection of which was contemplated in the disposition; (2) that he had had possession of the access for more than twenty years, and that this must be held as interpreting the grant. Held (1) that the use of the access subsequently to the grant had been by tolerance merely, and could not create a right in the defenders' favour, and (2) that although the access claimed might be more convenient than that from the defenders' own lands, it was not established that it was necessary for the reasonable use and enjoyment of the subject, and that interdict must accordingly be granted. Cullens v. Cambusbarron Co-operative Society, Limited, p. 164.

Property-Mill-Lade--Title--ConstructionProperty or Servitude. A decree of ranking and sale of a mill and mill machinery conveyed, inter alia, "and particularly the mill-lead and that portion of ground or embankment lying to the west of the said mill and between the mill-lead and the water of Jed, and extending upwards from said mill to and including the wastewater sluice on the side of the lead between the said mill and the Abbey Mill." Held (rev. the Lord Ordinary) (1) that these terms imported a conveyance of the whole mill-lade, and not merely of the mill-lade extending up to and including the sluice, and (2) that such a conveyance conferred not merely a servitude of aqueduct in the water and a right of property in opus manufactum, but a right of property in the lade and in the solum of the lade so far as necessary to its support. Hilson v. Scott, p. 189.

Mill-Lade-Prescription on Title a non domino-Exclusive Possession. The owner of a mill maintained and used the mill-lade for the prescriptive period for the purposes of his mill. His title to part of the mill-lade rested upon a conveyance a non domino, that part of the lade being constructed on the property of riparian proprietors. These proprietors raised no opposition to the construction of the lade, and continued to use the stream during the period of prescription to the extent

of drawing water from the lade, for which purpose steps were constructed down to it. Held that the possession by the millowner was sufficiently exclusive to confer a title by prescription as against the original proprietors, and that he was entitled to interdict them discharging sewage into the lade. Hilson v. Scott, p. 189.

Property-Building Restrictions-" Villa." A vassal was bound by a restriction in his feu-charter to erect no buildings other than "villas or offices" on his feu. He applied to the Dean of Guild Court for. warrant to erect six contiguous self-contained houses of two storeys with separate. gardens before and behind. The superior objected. Held (affirming the judgment of the Dean of Guild Court) that the proposed buildings were not "villas." Millar Trustees for Endowment Committee of Church of Scotland, p. 383.

บ.

Bounding Title Identification of Boundaries"Lying Between" - Road as Boundary Proof of Possession Highway. A was proprietor of the lands of C, which since 1669 had been described in the titles as "lying between" certain other lands and the common way which leads to the said burgh of Haddington on the south." Along the south-west side of the pursuer's lands there ran a track which was used by the public for foottraffic, and by the owners of the contiguous field of R for cart-traffic, but which beyond the point of access to that field had been closed, except for foot-passage, during upwards of a century. On the further side of the track there was a ditch and an old thorn hedge. It was proved by a plan dated 1778, on which it was described as "road by Alderston to Haddington," that this track had been at that date in the same position as now. Between 1854 and 1863 it was on the list of statute-labour roads. The tenants of C had always ploughed up to the edge of the track, but upon one occasion when they ploughed up the track itself, leaving only a footpath, they were challenged, and desisted. The proprietor of C kept the ditch clear and pruned the hedge, but the ditch was the drain of his own lands. In an action by him for declarator that the hedge was his boundary with the field of R, and for interdict against the defenders, who had obtained a feu of part of R, from metalling the track and using it as a carriage road for all purposes-held (1) that the track was the common way" referred to in the titles; (2) that it was a public road for all purposes at the place in question; (3) that A's title was a bounding title; and (4) that the boundary being identified he could not acquire anything beyond the medium filium of the track by proving possession beyond that line: but (5) that even if such evidence had been competent in face of the title, the facts founded on were not sufficient proof of possession. Veitch v. Western District Committee of the County Council of Haddington, p. 388.

and

Property-Superior and Vassal — Restrictions on Building-Reference to FeuingPlan annexed to Deed. A feu-disposition contained the following declaration by the superior-"Declaring that we and our foresaids shall be bound, as we hereby bind and oblige ourselves and our foresaids, to adhere to the general feuingplan of our said lands, and to erect on the said lands houses of the character and style indicated thereupon, . . . a reduced copy whereof is hereto annexed signed as relative hereto, and to give effect to this condition in all feu-contracts, dispositions, and other conveyances of the plots of ground shown on the said feuing-plan, and which declaration is also hereby declared to be a real lien and burden upon our said lands." The plan annexed to the disposition was a plan of the surface. It did not indicate the character or style of the buildings by any elevation or sketch, but showed only the line of the terraces and streets. the line of the buildings so indicated were the words "for self-contained lodgings and corner tenements." In a question between the superior and vassal, held (rev. judgment of the Lord Ordinary) that there was no restriction upon building validly imposed on the superior. The Assets Company, Limited, v. Lamb & Gibson, p. 407.

-

On

Common Property and Common Interest Joint Servitude Common Right to have Back Area kept OpenAcquiescence. The titles of the proprietors of the ground and upper flats of a tenement, derived from a common author, gave them substantially identical rights in the court or area behind the tenement, including the servitude "that no building shall be erected on the area behind the said tenement nearer the outside wall thereof than 19 feet, and that the said space of 19 feet all along the length of the said tenement shall be kept open and unbuilt upon in all time coming, in order to preserve the back lights of the foresaid shops so disponed." For a long period prior to 1883 the proprietors of an upper flat were in use to hoist goods by means of a block and pulley, in connection with which there was a projecting structure supported by an iron pillar resting on the back area. In 1883 this hoist was replaced by an enclosed hoist, the cage of which ran upon four posts resting on the back area and acting as guides. These posts were connected by cross-bars forming a fence to the hoist. In 1893 the proprietors of the ground flat brought an action for removal of the hoist, in which the defenders pleaded (1) that the structure did not interfere with the back lights of the pursuers' flat, and (2) that there had been acquiescence in the use of a hoist. Held (reversing the judgment of Lord Kincairney) that the pursuer was entitled to decree, on the ground (1) (following Bennet v. Playfair, January 24, 1877, 4 R. 321) that the parties having merely a common interest or servitude, neither was entitled to interfere with