the express conditions of the letter of guarantee. The Lochruan Distillery Co. v. James Blackwood Anderson, p. 111. Cautioner-Back-Letter-Change of Obligation-Giving Time-Liberation. The debtor in a bond was taken bound, along with cautioners, to repay the sum borrowed at a certain term. Thereafter the creditor, without communicating with the cautioners, granted a back-letter to the principal debtor, agreeing that, under certain conditions, the bond should not be called up till six years after the term mentioned therein. Held that the creditor had effected a material alteration in the relative rights of parties, and had thereby liberated the cautioners. The Scottish Provident Institution v. Ferrier's Trustees and Another, p. 390. Cessio Bonorum-Interim Liberation. Cessio and liberation refused, in respect of the vagueness and unsatisfactoriness of the debtor's statements. Duffy v. Ritchie, Menzies & Co., p. 662. Charter by Progress, effect of Alterations on. See Interdict. Charter-Party. See Ship. Circuit Court of Justiciary. See Small-Debt ActProcess. Citation. See Suspension. Clause. See Agreement-Landlord and TenantLiability-Trust-Succession. Clerk. See Burgh. Clyde Navigation Acts. See Reparation. Codicil. See Legacy-Trust. Commercial Value. See Arrestment ad fundandam jurisdictionem. Commissary-Clerk. See Process. Commissioner - Haver Contumacy. Held that where a defender had been required under a diligence to produce certain documents, upon which the pursuer relied, before a Commissioner appointed by the Court, and refused to do so, or showed contumacy, the proper course was not to decern in terms of the conclusions of the action in respect of the refusal, but to hold him confessed on the pursuer's statement of the contents of the said documents, and, holding copies as equivalent to the originals, to proceed with the action. Stuart v. Strachan, p. 105. Commonty See Prescription. Compensation. See Lease. Competent and Omitted. See Process. Competency. See Discharge - Evidence-Husband Condition. See Feu-Charter-Sale-Contract of Sale Condition of Residence. See Landlord and Tenant. Condonation. See Divorce. Confirmation. See Process. Conjugal Rights Amendment Act, 1861, 16. See Husband and Wife. Constant Rent. See Teinds. Construction. See Obligation-Trust-Trust-Deed. Circum stances in which the purchasers of a vessel were not allowed an issue in an action of damages against the sellers, except upon a relevant alle gation of fraud; and there having been a con tract test or criterion fixed upon, viz., that the ship should be de facto classed A 1 at Lloyds for a certain number of years, which test had been complied with, issue of breach of contract refused. Amendment of record allowed so as to admit a more specific allegation of fraud; and issue of fraud adjusted and approved. Gourlay and Others v. Watt and Macmillan, p. 95. Contract-Ship Surgeon-Usage. A ship surgeon having been engaged for the outward voyage for a certain salary, was entitled under his contract of service to a free passage home. Held, in an action at his instance for damages for breach of contract, that according to custom and usage he was bound to give professional attendance gratuitously to the crew on the homeward voyage. Freer v. Albion Shipping Company, p. 188. -Reduction-Fraud-Error in Essentialibus -Issues-Process-Reclaiming-Note-31 and 32 Vict. c. 100, § 28-A.S. 4th October 1868. In a reduction of a certain agreement of partnership and balance sheet of a firm's accounts, where the whole statements on record went to disclose a case of fraudulent misrepresentation and concealment, while the only allegation of essential error contained nothing but the technical terms, without any specification of the circumstances or mode in which it was induced, otherwise than by a reference to the allegations elsewhere made in support of the averment of fraudulent misrepresentation-Held that the pursuer of the reduction was not entitled to an issue of essential error apart from fraud, as well as an issue of fraud; and that to entitle him to such two distinct and separate cases must be relevantly disclosed on record. Observed, that where the Lord Ordinary has disallowed an issue in toto, and his judgment is not acquiesced in, the proper method is to proceed by reclaiming-note, and not by a mere motion in the Inner-House, as directed by the Court of Session Act and Act of Sederunt 1868, in the case where a variation of an issue is desired. Hare v. Hopes, p. 189. -See Process-Sale. Contract of Sale. See Judicial Fuctor. Contract of Separation. See Process. Contractor. See Liability-Process. Contributory Negligence. See Reparation. Contumacy. See Commissioner. Conveyance. See Trust-Settlement. Copyright-Second Edition-Notes-Quotations— Extent of Alteration. The defenders, who were a publishing firm, issued a book which professed to be a reprint of the original edition of a work, the copyright of which original edition had expired. There was, however, a later edition of this work, with notes, alterations, and additions, still within the protection of copyright, and the copyright in which was the property of the pursuers. From this last edition the defenders borrowed certain notes, a few of which were original, and the rest consisted of quotations from various works, which were used by way of explanation and illustration. They also took from certain other works exactly in the same position with the work last mentioned-(1) notes consisting of quotations, and (2) passages abridged from the text as altered in the copyright editions. Held (1), as regarded all the notes borrowed, the defenders had infringed the pursuers' copyright; (2) (diss. Lord Kinloch) with respect to two of the passages quoted from the text there Culpa. See Reparation. Curator ad litem Decree Minor - Reduction. In an action of reduction at the instance of a lady, who attained majority in 1844, of certain decrees of constitution and adjudication obtained against her in 1827-she not having a curator ad litem appointed to protect her interest-Held (1) that said decrees must be considered as having been pronounced in absence, and were voidable; but (2) that the onus lay on the pursuer to show that they were erroneous on their merits; and (3) that she had not done so; and defenders assoilzied. Mrs Grieve or Dingwall v. Isabella Burns and Others, p. 385. -See Process. Damages-Undue and Unwarrantable Delay. Circumstances in which the Court found that undue and unwarrantable delay in the prosecution of a voyage had occured on the part of a master and owner of a vessel, so as to subject him in damages for loss of market, &c. The Court being of opinion that certain conduct on his part, on and shortly after the completion of the loading, threw on him the obligation of increased activity in seizing the first opportunity for sailing, which he had failed to do, chiefly because the tackling and equipment of his vessel had not been got on board at the proper time. Mackenzie ย. Pitblado, p. 51. -See Jury Trial-Landlord and TenantReparation-Road Trustees-Sale-Process. Damages for Wrongous Sequestration. See Reparation. Damnum fatale. See Lease-Reparation. Dead Freight. See Ship. Debt of Deceased. See Succession. Declarator. An action of declarator dismissed, the conclusions being either announcements of bare facts, or inconsistent with the averments. Steuart v. The Earl of Seafield, p. 335. -See Process. Declarator of Marriage. See Aliment. Decree. See Curator ad litem. Decree-Arbitral-Parole Proof-Marches. A verbal arbitration as to the line of march may be proved prout de jure. Otto and Others v. Weir, p. 411. Decree in Absence. See Reponing. Decree of Confirmation. See Process. Deed-Testing Clause-Omission of Name of Writer -Judicial Production-Act 1681, c. 5. A testamentary writing was written by the doctor of an infirmary for a man on his deathbed, who subscribed it before witnessses. It was probative in every respect, except that the writer was not designated. Thereafter the widow of the deceased was confirmed executrix qua relict, and produced the deed before the Commissary in that process. Ten years afterwards, a conditional legatee under the said testamentary writing brought an action against the widow, founding on the deed, which was produced in process. The writer was still alive. Held that the judicial production of the deed terminated the implied mandate in the person to whom the deed had been delivered by the granter to fill up the testing clause, and that the deed must be held null, under the Act 1681, cap. 5. Hill v. Arthur, p. 176. Defences. See Agent and Principal. Delay, Undue and Unwarrantable. See Damages. Delegation. See Sale. Deletions. See Oath. Delivery. See Trust, Declarator of. Deposit-Receipt. See Donation. Diligence. See Process-Proof-Trust. Diligence on Bill between Partners. See Partnership. Discharge — Payment — Proof-Parole Evidence— Competency-Illiquid Claims. A granted a probative discharge to B, in which it was narrated that it had been agreed that B should advance £45 to A out of a certain fund, and receipt for the same acknowledged. A now sued B for £30, on the averment that £15 only had been actually paid; that the discharge had been signed and delivered on the footing that the whole £45 should be instantly paid in cash; and that B had failed to pay the balance, and fraudulently retained the discharge. Held competent to prove this averment prout de jure; and the proof having shown that only £15 was paid, held that B had failed to prove that A had agreed that the balance should be retained in extinction of certain unconstituted debts alleged to have been due by A to B and others. Kirkwood v. Bryce, p. 435. -See Bankrupt-Bankruptcy Act-MarriageContract-Sale. Discretionary Power. See Process. Disposition and Settlement. See Trust. Disposition omnium bonorum. See Divorce. Divorce- Adultery - Condonation-Process-Expenses. Circumstances in which, the adultery having been committed during the husband's absence abroad, and he having returned home during his wife's pregnancy, the plea of condonation was stated and repelled, and divorce pronounced, though the husband had during the last three months and a-half of his wife's pregnancy cohabited with her and slept in the same bed, once every fortnight at least, and generally once every week, and had done so three days previously to her confinement; and although other people were aware of his wife's condition during the whole of this period, the child having come to its full time-the Court being of opinion that both his conduct and his wife's showed that he was not aware of her pregnancy. Held that the wife was only entitled to recover from the pursuer the amount of her agent's outlays. A v. B, p. 258. -Disposition omnium bonorum - Reduction. Circumstances in which held that a person who had been divorced on the ground of adultery was not entitled to reduce a disposition omnium bonorum embracing provisions due to him under his antenuptial marriage-contract. Harvey v. Ligertwood, p. 441. -See Aliment-Husband and Wife. Documents. See Arrestment ad fundandam jurisdictionem. (1) Donation inter virum et uxorem-. -Apportionment -Trust Truster's Intentions - Liferent. Where a husband had opened an account with a bank in his wife's name, upon which she had operated for some years, and into which during that time dividends of the husband's were paid, and which was not closed at his death, but contained a considerable sum standing at the wife's credit; where moreover a sum of £600 had been withdrawn from this account, and placed on deposit-receipt in name of the wife alone, and had not been disturbed during the remainder of the husband's life-Held that though it was proved that a few days before opening the account in his wife's name the husband had received payment of a legacy belonging to his wife, but falling under his jus mariti, which in amount almost exactly tallied with the sum first placed to the wife's credit on opening the account, still there was no sufficient evidence that the husband had intended to make any donation to his wife. (2) Where a truster directed his trustees to convert into money his whole estate, and invest it in certain specified ways, and pay "the whole free annual proceeds to his wife during all the days and years of her life "-Held that the mere fact that a portion of the testator's funds were invested in consolidated 3 per cent. annuities, and were left so invested by the trustees, did not affect the question of vesting of the liferent in the widow; that that was a matter to be determined by the testator's intention, and not by any legal rule of apportionment; and that his intention being to give her the universal liferent of his estate as of a sum of money, the first dividend on the above-mentioned consols, payable two days after the truster's death, fell to be apportioned between the capital of his estate and the liferentrix; as did also that for the halfyear current at the liferentrix's death, notwithstanding that under the then existing law consolidated annuities were not apportionable. (3) Circumstances in which a testator was held to have validly disposed of the balance or savings made by his trustees and widow out of the annual income of the estate payable to the said widow, but so far only as these savings were still in the hands of the trustees, and had not been drawn by or paid over to the widow. William Wood (Menzies' Judicial Factor) v. Menzies and Others, p. 517. Donation-Deposit-Receipt. A deposited money in a bank in the name of himself and B, payable to either or survivor," and gave the depositreceipt to B. Held that there was no presumption in favour of donation, and that the proof did not establish that A intended to make a donation to B. Ross v. Durie, p. 627. -See Husband and Wife. Double Distress. See Process-Sale. Effect of an English Adjudication of Bankruptcy in Scotland. See Process. Effect of Family Understanding. See Trust. Ejectment, Wrongous. See Landlord and Tenant. Election General Police and Improvement ActComplaint-Reduction. At an election of Commissioners of Police under the General Police and Improvement Act, 1862 (25 and 26 Vict. c. 101), there were four vacancies and seven candidates. A poll was taken, and A, B, C, and D were declared to be elected. E and F stood fifth and sixth on the poll. A complaint was lodged for F in terms of sect. 48, which was referred by the Commissioners to a security committee, who reported that C was personally disqualified, and that D had a less number of legal votes than E or F, and that consequently E and F were elected instead of C and D. Held, in a reduction of the report, at the instance of C and D, that as E had failed to lodge a complaint under sect. 48, it was ultra vires of the committee to declare him elected, but that their report in regard to F, being within their powers, was by the statute excluded from review on its merits, John Moffat and Another v. James Miller and Others, p. 499. Employment. See Agent and Client. -Enclosing. Engineer. See Agent and Principal. Entail-Petition-Montgomery Act-Improvements Circumstances in which wire fences were sanctioned as permanent improvements under the Montgomery Act. Mackenzie, petitioner, p. 421. - Bond of Provision. Under the terms of a deed of entail held that after one heir of entail had burdened his estate with a bond of provision for a sum equal to three years' rents of the estate, a subsequent heir of entail was entitled to grant a similar bond. Special Case—Irving, p. 368. -See Judicial Factor-Succession. Erroneous Payment. See Assessment. Error. See Teinds-Testament. Error, Essential-Policy of Insurance-Restitutio in integrum. A policy of insurance on the life of a party was paid by the Insurance Company in the belief that he had died. Held, in an action at the instance of the policy holder, that upon repayment of the sum paid and arrears of premiums, the policy must be revived. There had been essential error on which no one was to blame, and there must be restitutio in integrum. North British Insurance Co. v. Stewart, p. 366. Error, Essential. See Marriage-Contract. Error in Essentialibus. See Contract. Error in Law. See Trustee. Essentialia. See Lease.. Estuary. See Property. Executors-Intestate Succession Act, 1855-18 Vict. cap. 23, 21. By mutual disposition and deed of settlement, dated in 1849, two spouses disponed their whole estate to the longest liver in fee, declaring that, in the event of the survivor executing no conveyance of the estate or any part of it, a certain share should belong to "the executors of the deceased A B," and a certain other share should belong to the executors of C B, who was alive in 1849, but predeceased the surviving testator in 1851. The survivor made no alteration in the destination of the estate, and died in 1867. Held (1) that "the executors of the deceased A B" meant not those persons who were his executors in 1849, the date of the deed, but those who were so in 1867, when the succession opened, under the provisions of the Intestate Succession Act of 1855; and (2), on the same principle, that the "executors of C B" meant, not those persons who were so at her death in 1851, but her executors, according to the law as it stood in 1867, when the succession opened. Special Case-Ewart and Cottom, p. 182. -See Judicial Factor-Process. Execution of Service. See Messenger-at-Arms. Exemption from Toll of Her Majesty's Mails. See Toll. Expenses. A number of claimants who appeared and successfully maintained the same case, held entitled among them to the expense which would have been incurred had only one of them argued the case. Sibbald Trustees v. Greig and Others, 294. -House of Lords-Petition to apply Judgment. Where the House of Lords has pronounced a judgment exhausting a cause, and not containing any finding as to expenses before appeal, the Court will not dispose of the question of expenses. Forbes v. The Ministers of Old Machar, p. 341. -Wife found entitled to expenses in both Outer and Inner House in both actions. Walker v. Walker, p. 586. -See Agent-Agent and Client-Agent and Expenses of Common Agent. See Process. Extrinsic. See Oath. Extent of Alterations. See Copyright. Extinction of Right. See Interdict. Evidence-Competency-Credibility of Witness. Evidence Act, 15 and 16 Vict. c. 27, 3. Held that, where a party is bound to adduce a witness as being an instrumentary witness, or otherwise essential to his case, he is entitled to contradict the testimony of that witness, and break down his credibility by proving that he gave a different account of any matter pertinent to the issue at some other occasion from that given in evidence, just as much as if he were a witness for the opposite side and being examined in cross. But held, farther, that the precedent conditions laid down by the statute must be complied with in order to the competency of such a course, viz., a foundation for such contradictory evidence must be laid by specific questions put to the first witness. Gall v. Gall, p. 144. Evidence, Legal Sufficiency of. See Road. Faculty. See Trust. Fault. See Reparation. Fee. See Trust. Fee and Liferent. See Succession. Fences. See Landlord and Tenant. Feu-Charter-Condition-Record - Singular Successor. The superiors of a piece of ground in the city, in the original feu-charter bound the feuar to erect houses thereon, conform to certain conditions which appeared in the articles of roup, under which the ground had been sold, and imposed certain other burdens and conditions. The precept and instrument of sasine contained mention of these express conditions, but no reference to the articles of roup or any conditions about the building of the houses contained in them. Held that the conditions in question, which bound the original feuar to erect houses conform to a certain plan, contained in the articles of roup, not having entered the record, were not binding upon singular successors. Magistrates of Edinburgh v. Croall, p. 245. Feu-Duty. See Trust. Fiar. See Issue. Fiar and Liferenter. See Trust. -See Appeal Foreign Stamp Laws. See Process. Formal Deed embodying Contract. See Lease. Friendly Society-Alteration of Rules-Arbitration -Registrar's Certificate-Jurisdiction-18 and 19 Vict. c. 63, 27, 41. In a reduction at the instance of certain members of a friendly society of a minute of meeting by which the rule as to the period when members became entitled to the benefits of the society had been altered, and of the certificate of the registrar certifying this alteration to be in conformity with law-Held (1) That the dispute, not being one between an individual member or a person claiming in the right of an individual member and the society, did not come within the arbitration rules of the society. (2) That the registrar's certificate, though necessary to the validity, was not conclusive of the legality of the rules, or alteration of rules, so certified. (3) That in such questions the jurisdiction conferred on the Sheriff by the 41st sec. of the Act 18 and 19 Vict. c. 63, was privative, and excluded that of the Court of Session. Opinion intimated, that questions with Haver. See Commissioner. Heir-Ancestor-Apparency-Passive Title-Statute 1695, c. 24-Provisions to Wives and Children. Reasonable provisions to a widow and daughter by a person who had possessed an estate for more than three years on apparency sustained as good debts, under the statute 1695, c. 24, against his son and successor, who had made up titles to a remoter ancestor, passing by his father. Special Case-Tutors of William Orr Orr and Others, p. 354. -Meliorations-Bona fides. An heir is bound to pay for repairs made in bona fide on the subject to which he succeeds by a person who believed herself heir, in so far as the subjects are increased in value by the repairs. Fernie v. Robertson, p. 317. -See Process. Heir-at-Law-Heir of Provision-Truster's DebtsDeathbed. Circumstances in which held that a testator did not intend to relieve his heir-at-law of debts so as to make them burdens on his heir of provision. Observed, by Lord Benholme, that the intention of a testator may be implied from a deathbed deed which has been reduced ex capite lecti. Barstow (Park's Curator) v. Black and Others, p. 674. Heir of Provision. See Heir-at-Law. Heritors. See Assessment-Process. Holograph. See Writ. Homologation. See Jurisdiction. Husband and Wife-Jus mariti-Donation-Interest. A married woman succeeded to certain sums during her husband's life, the jus mariti not being excluded. The husband, however, credited her with these sums in his books. Held, in a question with his testamentary trustees, that though the husband must be presumed to have made a gift to her of the principal sums, she was not entitled to interest. Catherine Clark and Others, p. 314. Mrs -Aliment― Voluntary Contract of SeparationRevocation. Circumstances in which it was held that no sufficient and bona fide revocation had been made by a husband of a voluntary contract of separation into which he had entered with his wife, and that accordingly aliment was due to her ex contractu. But held, farther, that as her action had only been sustained on the contract, and the question of her right to aliment at common law had not been yet raised, and it being in the husband's power at any moment to make a valid and bona fide revocation of the contract, decree could only be given for aliment under the contract up to the date of the judgment, and not prospectively. Hood v. Hood, p. 320. Husband and Wife-Conjugal Rights Amendment Act, 1861, 16. Held that 16 of the above Act had a retrospective effect. Taylor v. Taylor and Smith, 589. Ac -Divorce-Process-Competency-Counter tion of Divorce-Expenses. After decree of divorce had been pronounced by the Lord Ordinary at the instance of a husband against his wife, and a reclaiming-note had been lodged against the Lord Ordinary's judgment, but had not yet been disposed of, the wife raised a counter action of divorce against her husband, in which she alleged that the facts upon which her counter action was laid had only come to her knowledge since the date of the Lord Ordinary's interlocutor in the action at her husband's instance against her. Held that, the action at the husband's instance being still in dependence in and under the control of this Court, the pronouncing of decree of divorce by the Lord Ordinary was no bar to the raising of a counter action at the wife's instance against the husband, if otherwise competent. Observed, that it would have been different had final judgment been pronounced in the husband's action by this Court, and appeal been taken to the House of Lords, as in that case this Court would have lost control of the cause. Mrs Jane Aun Fraser or Walker v. William Walker, p. 328. -Divorce. In counter actions of divorce on the ground of adultery, decree of divorce pronounced against both parties. William Walker v. Jane Ann Fraser or Walker, p. 586. -Legitimacy. Children of a pretended marriage between a man and the daughter of his deceased wife declared illegitimate. Muir v. Watsons, p. 596. -Aliment-Arrears. 'A husband in receipt of an annual income of £640 having deserted his wife. found liable to her for aliment at the rate of £140 per annum; but arrears of aliment refused, on the ground that the husband was liable for the debts contracted by his wife for her maintenance. M Millan v. M Millan, p. 688. -See Marriage-Contract-Poor-Title to Sue, Hypothec on Costs, Writer's. See Process. |