entitled to interdict as craved, until the differences which have arisen between the parties have been settled and determined by the said arbiters."

The Lord Ordinary (MACKENZIE) pronounced the following interlocutor:

"Edinburgh, 20th July 1870.-The Lord Ordinary having heard the counsel for the parties, and considered the note of suspension and interdict, answers thereto, note for the respondent, No. 26 of process, and productions, passes the note; and in respect of the undertaking of the respondent, set forth in the said note, to keep an account of all road steamers manufactured under his authority by makers other than himself and the complainers, and to find full caution to make good all loss and damage occasioned by such manufacture; and, in respect of the further undertaking of the respondent in said note, to refer to the arbiter named in the agreement between the parties, No. 4 of process, the questions stated in the said note, on the respondent finding caution as offered, refuses interim interdict.

"Note. It is provided by the Patent Law Amendment Act, 15 and 16 Vict. c. 83, sec. 35, that a book, entitled 'The Register of Proprietors,' shall be kept at the office appointed for filing specifications in Chancery, wherein shall be entered any assignment of or license under any letters patent, and the district to which such license relates, with the names of the persons having any share or interest in such letters patent or license, and any other matter or thing relating to or affecting the proprietorship in such letters patent or license; and it is thereby provided that, until such entry shall have been made, the grantee or grantees of the letters patent shall be deemed and taken to be the sole and exclusive proprietor or proprietors of such letters patent, and of all the licences and privileges thereby given and granted.'

The complainers, under the agreement between the parties, No. 4 of process, claimed for three years, from 17th December 1869, the sole and exclusive license to make, use, sell, and dispose of the respondent's invention granted to him by his letters-patent, for an improved wheel for steam carriages to be used on common roads, and the road steamer and apparatus connected therewith, as well as the whole powers, privileges, and authorities granted to the respondent by the said letters patent, and that within the United Kingdom.' This agreement or license has never been recorded in The Register of Proprietors,' appointed by the foresaid Patent Law Amendment Act to be kept. It was maintained by the respondent that, under the foresaid section of the statute, he, as grantee of the letters patent, must be deemed and taken to be the sole and exclusive proprietor thereof; and he cited the case of Chollett v. Hoffman, 30th April 1857, 26 Law Journal, Q.B. 249, in support of this claim. In that case the plaintiff, founding on an indenture assigning to him certain letters patent, raised an action for infringement of the patent. It was objected to his title that the indenture was not registered in pursuance of the statute. On the trial this objection was sustained, and a verdict directed for the defendant. A rule for a new trial, on the ground of misdirection, was discharged. Lord Campbell, C.-J., delivered the judgment of the Court, and stated that 'till the entry is made, no legal interest passed by the indenture, and nothing beyond a right to have the title completed.' The Lord Ordinary is of opinion that, in respect of this objection to the complainer's

VOL. VIII.

title, he cannot grant interim interdict, and that the note should be passed to try the question. The Lord Ordinary is also of opinion that the same course should be followed on other grounds. The question whether interim interdict should or should not be granted in this case depends upon the injury which the granting or refusing it would inflict. The complainers refused the eight orders sent them by the respondent on 2d July 1870, and made no counter proposal with regard to them. The respondent undertakes to exact the same royalty which the complainers pay him from any manufacturer whom he may employ. He offers to keep an account of all road steamers constructed for him, and to find full caution for all loss and damage which the complainers may sustain by reason of such manufactures; and he also undertakes to refer to Mr Leslie, whom failing to Mr Stevenson, the questions raised by him under the agreement whether he is entitled to rescind the agreement, in consequence of the complainers' failure to execute orders between the date of the agreement and 2d July 1870, and of their refusal to accept the eight orders sent them on second July; and, in consequence of their refusal to make the supply of the road steamers keep pace with the demand, the complainers cannot, it is thought, suffer in such circumstances any loss, or be put to any inconvenience by the refusal of interim interdict. But if interim interdict were granted, the respondent might suffer serious loss and damage, not only from the loss of the royalties on the eleven road steamers for which he had received orders, and on other orders which may come in, but also by reason of the demand for his road steamers being diminished and injured in consequence of the failure to accept and fulfil orders. The injury to the respondent so occasioned might never be repaired during the remainder of the limited period specified in the letters patent."

While in the Bill Chamber the respondents had lodged the following minute in process:-" The respondent states that in case the Lord Ordinary should think proper to refuse the application for interim interdict, he will undertake to keep an account of all road steamers manufactured by other makers under his authority, and to find caution for damages in common form; and, in the same event, also to refer to Mr Leslie, whom failing Mr Stevenson, the arbiter named in the agreement, the questions (1) Whether the respondent is entitled to rescind the agreement in consequence of the complainers' failure to execute orders between the date of the agreement and 2d July, together with their refusal to accept the eight orders sent on 2d July? (2) Whether, under article 5 of the agreement, the respondent is now entitled to terminate the complainers' exclusive privilege, on the ground that they have failed to make the supply of the road steamers keep pace with the demand?" But the complainers, not being satisfied with its terms, reclaimed.

SOLICITOR-GENERAL, WATSON, and TRAYNER, for the complainers and reclaimers.

The LORD ADVOCATE and J. M'LAREN for the respondents.

regulate the interim possession in such a way as to do least damage in the mean time to either party, and at the same time to provide sufficiently for proper restitutiou being made for any damage suffered to the party who shall be found in the right when the case is over. This principle has frequently been applied by this Court-notably in the case of disputed rights of salmon-fishings; also in the case of possession of land under disputed titles as far back as the case of Roebuck and Stirling. The Lord Ordinary has taken every necessary precaution. He has obtained an undertaking from the respondent" that he will keep an account of all road steamers manufactured by other makers under his authority." He has also required him to find full caution for all damages the complainer might suffer; and to bind himself to go before the arbiter in terms of the agreement, and lay before him two questions against which the complainer has now nothing to say. He admits that they contain the questions in dispute between the parties, and does not suggest any alterations. Now there is no other way in which we could so well secure the interests of both parties, and particularly those of the respondent. Every day and hour are of importance to him in the exercise of his patent-every day and hour le but are so much of his fourteeen years gone.

Moreover, it would be impossible afterwards to determine what his damages had been. Were we to take a different course from that taken by the Lord Ordinary, and leave the complainers in the sole exercise of the patent, they might neglect to take proper advantage of it, and the loss to the respondent never be ascertained. It is far better to let the respondent provide against his own prospective loss than leave that loss to be afterwards estimated upon insufficient data. On the other hand, it appears to me that the complainers are completely protected by the terms of the Lord Ordinary's interlocutor. Were we to reverse that interlocutor, I am quite sure we should be taking a course far less likely to do justice between the parties.

LORD DEAS-One of the questions before the Lord Ordinary was whether this dispute between the parties came within the reference in their agreement. Even if it did not, I consider that the Lord Ordinary's interlocutor would have been reasonable. But now it is admitted that the dispute does come under the reference; and the respondent now says he is willing to go before the arbiter. Instead of acceeding to this, what do the complainers do? They insist upon going on with the litigation. They do not wish any alterations made upon the questions which the respondent proposes to lay before the arbiter, but they waste from the 20th of July till now in coming before us and trying to get the Lord Ordinary's judgment on the subject of the interim interdict reversed. The question is whether the complainers are to have interim interdict while the case goes before the arbiter. Such a proceeding would be beneficial to neither party; and I consider the Lord Ordinary to have rightly refused it.

LORD KINLOCH concurred.
LORD ARDMILLAN absent.

Lord Ordinary's interlocutor affirmed.

Agents for Appellant-Murdoch, Boyd & Co., S.S.C.

Agents for Respondent - Millar, Allardice, & Robson, W.S.

16 of the Reform Act of 1868; and that the assumption was that such was a correct description of the feu-duty, until proof was led to the contrary.

The Sheriff (G. NAPIER) stated the following Special Case:

"At a Registration Court for the county of Peebles, held by me at Peebles on the 15th and 16th of September 1870, under The Representation of the People (Scotland) Act 1868,' and other Acts therein recited, William Blackwood, writer, residing at Minden, Peebles, a voter on the roll, objected to the name of James Alexander, weaver, West Linton, entered on the assessor's list of voters, being added to or continued on the roll of voters for the said county.

"The said James Alexander stood upon the assessor's list as proprietor of dwelling-house, shed, byre, and pertinents at West Linton. The subjects were entered in the valuation roll as of the annual value of £5, 1s. In the return made by James Alexander to the assessor under the Lands Valuation Act, in the column in which he was required to insert the amount of the feu-duty or ground-annual, &c., there was inserted the word 'none,' and that word was inserted in the like column in the valuation roll. The titles produced by the said James Alexander showed that the said subjects were held by him under an a me vel de me holding. The disposition in his favour also contained the following clause: And we bind ourselves to free and relieve the said James Alexander and his foresaids of all feu-duties, casualties, and public burdens.' No other written evidence as to liability for feu-duty, or its amount, was offered on either side.

James Alexander was examined as a witness, under protest taken by the objector, that parole proof of the amount of the feu-duty or reddendo payable by him was incompetent, when the following facts were elicited. That Alexander had never paid any feu-duty, and had never been asked to pay any; that he had made no inquiry as to who was, and could not tell who was, the over-superior of said subjects, and that he believed there was no feu-duty, because he found in the disposition in his favour the clause above quoted. That it was in respect of that clause, and of the facts that he had never been asked to pay, and had never paid any feu-duty, that he stated in his return to the assessor that there was no feu-duty.

"The assessor had made no inquiry regarding the feu-duty, but had entered 'none' solely upon the return furnished to him by the said James Alex

ander, and without requiring him to furnish any evidence.

The said William Blackwood moved that the said James Alexander's name should not be placed upon the register, in respect he neither furnished to the assessor, nor produced in Court, any evidence to prove what the feu-duty payable by him was.

"I held in law that, in the circumstances above stated, and the said James Alexander being upon the assessor's list, the burden of proving any deduction from the value different from what appeared on the valuation roll lay upon the objector, and no such proof having been adduced by him, I therefore repelled the objection.

Whereupon the said William Blackwood required from me a special case for the Appeal Court; and in compliance therewith I have granted this case."

The point for the decision of the Court was:— Whether the word "none," inserted in the lands valuation schedule in answer to the assessor's query as to the amount of feu-duty, &c., paid for the subjects in question, was a sufficient answer to entitle the assessor to place the respondent's name upon the list, in terms of 24 and 25 Vict. c. 83, ¿ 8, and to entitle the respondent to have his name transferred to the register of voters in terms of that Act, and of the qualifications laid down in 31 and 32 Vict. c. 48, 5.

MACDONALD, for the appellant, contended that the respondent had been erroneously placed upon the assessor's list, in respect that the assessor had failed to comply with 2 8 of the County Voters Act, 24 and 25 Vict. c. 83, and ascertain the amount of feu-duty payable by the respondent for the subjects in question. And that having been thus erroneously placed upon the assessor's list, his name was farther erroneously transferred to the register of voters, instead of his having been obliged to make a claim and support it by evidence of his qualification.

ORPHOOT, in reply, referred to the statutes, and relied upon the case of Duncan v. Small, Dec. 19, 1868; 7 Macph. 326.

At advising

LORD BENHOLME-I am of opinion that an elusory duty is quite sufficiently expressed in the return made by the assessor and in the valuation roll by the word " none;" and that without proof to the contrary we are not bound to assume that return a wrong one.

LORD ARDMILLAN concurred.

LORD ORMIDALE-The valuation roll has the particular column filled up, and in that column the amount of feu-duty is asserted to be "none." That may be quite consistent with the fact. Because, where the feu-duty is elusory, the feuar is quite entitled to say there is none. There is no presumption that because that entry is "none," that, therefore, it is wrong. The burden of proving that it is wrong lies upon the objector. Appeal dismissed.

Appellant's Agent-John Gillespie, W.S.

Monday, October 24.

BLACKWOOD v. MOFFAT. County Franchise - Combination of Tenancy and Joint-Tenancy-Reform Act 1868, 13, 14. A person having been sole tenant, became,

during the currency of the year, joint-tenant of the same subjects. The value however was sufficient to give a qualification under either circumstances. Held that the change from sole to joint-tenancy, or vice versa, of the same subjects, did not annul the qualification, the value in either case being sufficient-Reserving the case in which the subjects should be different.

The Sheriff (G. NAPIER) stated the following Special Case:

"At a Registration Court for the County of Peebles, held by me at Peebles 13th and 14th of September 1870, under The Representation of the People (Scotland) Act 1868,' and other Acts therein recited, William Blackwood, writer, residing at Minden, Peebles, a voter on the roll, objected to the name of William Moffat, ironmonger, Peebles, entered on the assessor's list of voters, being added to or continued on the roll of voters for the said county.

"The said William Moffat stood on the assessor's list of voters, as tenant and occupant, and joint-tenant and occupant in succession of shop and dwelling-house, High Street, and shop, warehouses, stable, and garden, High Street, Peebles, in succession.' He previously stood on the register for 1869-70 as tenant and occupant of shop and dwelling-house, High Street, Peebles. At Whitsunday 1870 he ceased to be sole tenant, and became joint-tenant and occupant with another, of part of said subjects, of sufficient value to qualify him as such, and he also continued sole tenant of the remainder, but the latter part was not of statutory value. The assessor struck his name from the previous register, as being disqualified in the character there entered, and inserted him in the assessor's list as above.

"It was objected by the said William Blackwood to the said William Moffat being added to or continued on the register for 1870-71, that he had not held the qualification of joint-tenant and occupant for the statutory period, and that it was not competent to combine a period of occupancy, as sole tenant and occupant with a period of occupancy as joint-tenant and occupant, in order to make up the statutory period of twelve months.

"I held in law that the said William Moffat, having been in the actual personal occupancy of subjects of the requisite value, as joint-tenant from Whitsunday last, and of the same subjects as sole tenant for the year immediately preceding said Whitsunday, without interruption of any kind, was entitled to be registered under the Reform Act of 1868, and I therefore repelled the objection.

Whereupon the said William Blackwood required from me a special case for the Court of Appeal, and in compliance therewith I have granted this case."

The question of law was, Whether joint and sole tenancy of the same subjects could be combined so as to give the franchise, where either the joint or the sole tenancy for the requisite term would have been sufficient qualification? MACDONALD for the appellant. ORPHOOT in answer.

Case referred to-Stewart v. Scouller, 7 S. Law Rep., p. 83.

different. On the point before us, viz., the combination of joint and sole occupancy of the same premises, where under both circumstances the subjects are of sufficient value to confer the franchise, I think the Sheriff's judgment is right. It does not matter whether the joint or the sole tenancy comes first. Take the reverse of the present case, and suppose, for instance, that the claimant is at first joint-tenant to the extent of one half, which is yet of sufficient value to confer the franchise, and during the rest of the year becomes sole tenant, is he, because he has doubled his qualification, to be deprived of his vote? I cannot think that that was the intention of the Legislature at all, and so I am for sustaining the Sheriff's judgment.

LORDS BENHOLME and ORMIDALE concurred.
Appeal dismissed.

Appellant's Agent-John Gillespie, W.S.

Monday, October 24.

VEITCH V. YOUNG.

Alteration of the Register by the Sheriff-24 & 25 Vict. c. 83, 229, 34, and 44-The Sheriff found not entitled to alter the word "proprietor" into "joint-proprietor," and "house" into "houses and land," on a motion made in the course Held of a case at his Registration Court. that such alteration did not come under the 44th section of the above Act; and that the claimant, even though already on the register, must proceed under the 9th section, and prefer a claim.

The Sheriff (G. NAPIER) stated the following Special Case :

"At a Registration Court for the county of Peebles, held by me at Peebles, 15th and 16th of September 1870, under 'The Representation of the People (Scotland) Act 1868,' and 'other Acts therein recited,' Thomas Young, banker and inspector of poor, Innerleithen, a voter on the roll, objected to the name of James Veitch, labourer, Peebles, being continued or retained on the roll of voters for the said county. The said James Veitch was entered in the register as 'proprietor' of house, Old Town, Peebles,' and had been so since 1868. It was objected by the said Thomas Young that the said James Veitch ought not to be added to or retained on the register of voters for the said burgh, in respect that he was not the proprietor of property of the requisite value.

"Previous to the said objection being discussed, the Sheriff was moved by the said James Veitch to alter the entry in the register by inserting the words houses and land' instead of house,' and the word joint' before proprietor. Veitch was one of a family of brothers and sisters to whom said subjects were disponed pro indiviso. The said James Veitch had, by natural succession, succeeded, prior to 1st January 1870, by the death of two brothers and a sister, to three-eighth parts shares of the said subjects, in addition to his own eighth share, and thus has right to one-half of the whole. The two brothers died eighteen and fourteen years ago respectively, and the sister in March 1869, being subsequent to the date of his original enrolment.

"The said Thomas Young objected to the proposed alteration of the register as being incompe

tent. The said James Veitch replied, that being upon the register, he was entitled at least to assume the position of a claimant, and to prove his title to the subjects in the valuation roll, and to have the register corrected as craved, so as accurately to describe said subjects and title. It was admitted that if the proposed alteration were made on the register the qualification would stand sufficient, but not otherwise.

"I held in law that, in the circumstances above stated, the proposed alterations on the register were not of a description competent to be made by me upon a motion to correct the register, and that effect could only be given to them under a new claim. I therefore sustained the objection, and expunged the name of the said James Veitch from the register.

Whereupon the said James Veitch required from me a special case for the Court of Appeal, and, in compliance therewith, I have granted this

case.

It was admitted that the subjects in question were of the value of £14 in 1869, and that the appellant was then proprietor to the extent of three-eighth parts; while in 1870 the value had fallen to £11, 10s., but the appellant's share had risen to one half.

MACDONALD, for the appellant, contended that being upon the register he was entitled at least to assume the position of a claimant, and instruct his right to remain upon the register, without requiring to proceed under ? 9 of the County Voters Act.

Cases referred to-Stewart v. Bruce, 7 Macph. 287; Smith v. Mackay, 7 Macph. 287; and Campbell v. Alexander, 7 Macph. 283.

ORPHOOT in reply.

The judgment of the Court was as followsLooking to the valuation roll, Mr Veitch was proprietor, along with others, to an extent which did qualify him for a vote in 1869. In the valuation roll of 1870-71, however, the value of the property fell, to an extent which would have annulled his qualification, had not his interest in the property at the same time increased; and for his purpose that was just as good. Substantially, therefore, there cannot be an allegation that his qualification was not a good one. But the question here is, whether, admitting that the party's qualification has been good from the beginning to the end, it was in the power of the Sheriff to rectify the entry in the register. The correction so far, at any rate, as it relates to the change from "proprietor to "joint-proprietor" is not covered by the 44th section of the County Voters Act of 1861. Such a correction would be a most dangerous proceeding, especially if effected before the Sheriff in the manner proposed. It would overturn the whole machinery of the statutes. It would give the appellant an advantage which he is not entitled to. would enable him to get the case taken up before the Sheriff, while he himself had not proceeded in the statutory manner-by preferring a claim so as to bring forward objectors. It was not said that the claim could not easily have been established in this case. But as a matter of precedent, the proceeding could not be allowed. The Sheriff did quite right in refusing to alter the register. Appeal dismissed.

Appellant's Agent-John Gillespie, W.S.

It

Monday, October 24.

KILPATRICK V. REID.

Proprietary Qualification-31 and 32 Vict., c. 48, ? 5, clause 2. A gift of property from the Crown of sufficient value to afford the qualification, contained in a letter from the Exchequer Office, and accepted by the donee, who thereupon entered into possession, and executed repairs, &c. on the faith of the gift, held to supply the proprietary qualification, though no formal written title containing dispositive words had yet been obtained.

The Sheriff (N. C. CAMPBELL) stated the following Special Case :

66

At a Registration Court for the county of Ayr, held by me at Ayr on the 30th day of September 1870, under and in virtue of the Act of Parliament 31 and 32 Vict., cap. 48, intituled 'The Representation of the People (Scotland) Act 1868,' and the other statutes therein recited, Adam Reid, weaver, Alison Street, Newton, a voter on the roll, objected to James Kilpatrick, Miller Road, Ayr, being entered on the roll as a voter for the said county. The said James Kilpatrick stood enrolled for South Ayrshire on the register of voters as proprietor in right of his wife of freedom of land in Newton of Ayr.

"The facts of the case are these:-The property claimed on is of sufficient value. It belonged, along with other heritable property, amounting together in value to £120 per annum, to the late Mr Turner. Mr Turner left a holograph will, which purports to bequeath' to the wife of the claimant his houses and lands, but for want of the word dispone the heritable property was not effectually conveyed. Mr Turner's heritable property fell, on his death, to the Queen as ultima hæres. Upon a petition by the claimant's wife, Her Majesty was pleased to bestow a gift of the said heritage on her. On the 8th of December 1869 this was announced to the claimant's agent in a letter from Mr Longmore of the Exchequer, Edinburgh, as follows:-'I have to inform you that the Lords Commissioners of Her Majesty's Treasury have been pleased to bestow a gift of this estate upon Margaret Turner or Kilpatrick, she being bound to pay to Mrs Mackenzie the sum of £50, mentioned in the informal will of the deceased, and to Margaret Turner, the illegitimate daughter of the deceased, an annuity of £10 from the date of his death until she shall have reached the age of twelve years. To enable me to draw the gift, I have to request that you will furnish me with the title-deeds of the property, and with the full name and designation of Mrs Mackenzie. It will also be necessary to furnish me with an estimate of the value of the heritable property.' It was proved that, shortly after the date of this letter, and more than six months before the 31st of July last, that Mrs Kilpatrick entered into possession and made repairs on the property to a considerable amount. She had previously intimated her willingness to accept the grant on the terms above-mentioned. The deed of a gift, an extract of which was produced, was not executed and delivered until April last.

"I sustained the objection, and expunged the name of the said James Kilpatrick from the roll; whereupon the said James Kilpatrick required from me a special case for the Court of Appeal; and in compliance therewith I have granted this case.

At advising

LORD ARDMILLAN-The voter stands upon the register as in right of his wife; and there is no doubt that the property in question is of sufficient value to confer the franchise. The question is, Whether the property is so vested in the respondent in point of title as to warrant his name being placed on the register of voters ? On the special case it is stated that Her Majesty's gift of the heritage in question to Mrs Kilpatrick, the respondent's wife, was announced to the respondent's agent in a letter from Mr Longmore of the Exchequer, Edinburgh, of date December 8, 1869. It is only reasonable to take it that this letter was distinctly authorised. Accordingly, on the faith of it, Mrs Kilpatrick first formally accepted the grant, and then entered into possession, and executed certain repairs. I have no doubt at all, that if this had been a transaction between subject and subject, the donee could have raised an action to compel the donor to complete the transfer-relying upon the offer and acceptance and the rei interventus as excluding locus penitentiæ. It is not necessary to go further. It cannot be that the right of a subject is less when the Crown is donor than when a fellow subject is so. Accordingly, holding that Her Majesty had given the property, I must hold that she could not have refused a title -as in fact she has not; and I therefore think that Mr Kilpatrick is entitled to have his name retained upon the register of voters.

LORD ORMIDALE-1. As the voter stands now upon the register, the objector is bound to make good his objection.

2. We have the announcement of Her Majesty's grant made through Mr Longmore. It is true it is not alleged that there was a written gift from Her Majesty; but in matters of this sort Her Majesty acts through the Commissioners of her Treasury; and we are entitled to presume that their proceedings are recorded, and that Mr Longmore is their recognised mouthpiece. His authority must be assumed, unless there is proof to the contrary, which the objector has failed to furnish. I am, therefore, for reversing the Sheriff's judgment, and sustaining Mr Kilpatrick's right to a vote.

LORD BENHOLME-I quite concur. If there is any nicety in the case at all, it is the distinction between evidence and title. Whilst it might be that Mr Longmore's letter is very credible evidence, still the best possible evidence may not amount to a title. But I think we are bound to assume in the present instance, failing proof to the contrary, that Mr Longmore was authorised in what he did, and authorised in the way which, in these matters, is usual. That in my opinion is sufficient title under the 7th clause of the Reform Act of 1868.