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dent Insurance Society, proprietors of No. 7 St Andrew Square, craved a warrant to alter a stair leading to the area in front of their property. Fell's trustees, proprietors of the tenement on the west, although not alleging possession, claimed the property of the stair under their titles, and contended that, the petitioners' title to their property being a bounding charter, they were not entitled to establish by possession a right to subjects outwith the charter. The Dean of Guild found that the petitioners had occupied the staircase for seven years and upwards on a title capable of including the subject, and that they were therefore entitled to execute the proposed alterations. The Court adhered, on the same grounds.
Act.-Advocatus and A. Blair. Agents-Hunter, Blair, and Cowan, W.S. -Alt.-Young and Webster. Agents-Morton, Whitehead, and Greig, W.S.
CRAWFORD'S TRUSTEES v. CRAWFORD.-Jan. 11.
Relief-Annuity-Heir and executor.
The defender, as nearest lawful heir of his brother, James Crawford, challenged and succeeded in reducing the trust-deed and settlement of the latter, in so far as it disposed of heritable estate. The question now before the Court was whether the defender was bound to bear the burden of paying an annuity provided by Mr Crawford in favour of his wife. The Lord Ordinary (Jerviswoode) held that he was. The annuity was heritable, as bearing tractum futuri temporis, and was therefore such as to form ex lege a debt against the heir in heritage of the granter.
The Court adhered, holding that, although the moveable estate in the hands of the trustees stood pledged as an additional security for payment of the annuity, and was, it might be said, cautioner for the heir's performance of his obligation, the heir had no right under the deed to be relieved of his proper obligation to pay the annuity. It was unnecessary for the pursuers to plead the doctrine of approbate and reprobate against the heir. His liability was the same as it would have been in a simple case of intestacy. Act.-Clark and Fraser. Agents-H. and H. Tod, W.S.-—Alt.Sol.-Gen. and Nevay. Agents-Scott, Moncrieff, and Dalgety, W.S.
THE QUEEN V. CAIRD.-Jan. 18.
Exchequer Special Case-Power to Amend.-16 & 17 Vict., cap. 88. Sect. 15.
By Sect. 15 of 16 & 17 Vict., cap. 88, it is enacted that "if any person shall let any horse for hire without having obtained a proper license for that behalf, or if any person shall at any one time keep to be let for hire, a greater number of horses or carriages than he shall by such licence be authorised to keep at one time to be let for hire," then follows the penalty.
James Caird, a hotel keeper, was on 2d March 1866, at the petty sessions held at Cullen in the county of Banff, charged with a contravention of the above section, in so far as he having on 1st Jan. 1866 a licence for two horses to be kept for hire, did at that date keep three horses for hire. Being convicted and fined £25, he appealed to the Quarter Sessions, who affirmed the conviction, modifying the penalty to £5. At the request of
the defendant, and in terms of 7 & 8 Geo. IV., cap. 53, sect. 8, a statement of the facts of the case was prepared by the justices for the opinion and direction of the Court of Exchequer. They stated that :
(1.) The defendant held a license under the Act, authorising him, from 6th October 1865 to 5th January 1866, to keep at one time to be let for hire two horses; and he occasionally held a supplemental license for additional horses.
(2.) During the above period, four horses were kept by the defendant. Two to be let for hire, and the other two for labouring land, and occasionally let for hire when the other two horses were tired, and not let for hire. (3.) (4.) (5.) (6.) These statements were to the effect that in Dec. 1865 the defendant was applied to for three horses, and refused to let more than two. That in Jan. 1866 he sent out three horses, but though offered, refused to accept, and did not receive hire for more than two.
The Court were of opinion that the case, as laid before them, had not been well stated; but at the same time, as they did not think they had any power to order an amendment, their duty was to consider whether the facts as stated were sufficient to justify the conviction. They thought that they were sufficient. The statements made in the 3d, 4th, 5th, and 6th heads were quite immaterial. They might have been important to negative a different charge from that made, but could have no effect in the present case. The foundation of the conviction was to be found in the 1st and 2d heads. The defender maintained that, while there might be here a good foundation for a charge for letting more horses than he was entitled to, there was nothing to justify the conviction for keeping more than he was entitled to. It was quite clear that there were two separate offences described in the 15th section of the statute. The difficulty was as to how these offences were intended to be distinguished. Had the essential difference been between letting a horse and keeping a horse to be let, they would have been prepared to give effect to the defender's contention; but they were of opinion that this was not so that the essential difference was intended to be drawn between a person who had no license and one who, having a license, exceeded his powers under it. They thought that they had sufficient facts to warrant the finding that the defender kept horses in excess of the number allowed by his license. The keeping for hire might be proved in different ways, one undoubtedly competent way being by proving the fact of actual hiring.
Act.-Advocatus, Sol.-Gen., and Rutherford. Agent-The Solicitor of Inland Revenue.-Alt.-Young & Shand. Agent-J. Morison, S.S.C.
FORSYTH V. NICOLL.-January 19.
Poor-Right to demand Outdoor Relief.
This was an advocation from the Sheriff Court of Elgin. The advocator had been for several years in receipt of outdoor relief from the parochial board of Duffus. In June 1845, this relief was discontinued, and an offer made to him of admission to the Morayshire Union Poorhouse, which is a poorhouse erected under section 61 of the Poor-Law Act 1815, by Duffus and other contiguous parishes. The advocator refused this offer, and applied to the Sheriff-Substitute, who, on the ground that poorhouses erected under the Act 1845 were for the relief of the "aged, and other friendless,
impotent poor," and that this pauper did not come within the enumerated classes, he not being friendless, inasmuch as he had a wife able to earn her own subsistence, held that the Board was bound to furnish the pauper with outdoor relief. The Sheriff reversed, holding that there being no refusal of relief, the pauper's application to the Sheriff, under sec. 73 of the Act, was incompetent. Forsyth advocated; but the Court unanimously refused
The Lord Justice Clerk said the contention was, that the relief offered to the advocator was not such as the Board could insist on his taking. This was founded on the preamble of the 60th section of the Act 1845. That preamble was too sentimental, and would have been better away. The important part of the section was the enacting part. The notion that poorhouses were introduced for the first time by Act 1845 was a mistake. They had grown up under the old law, for, having impotent poor to maintain, you must give them lodging as well as food. The question was, not as to the administration of the poor law, but whether any poor were entitled to outdoor relief, and this must be answered by an unqualified negative. The poorhouse was a legal test to every pauper. It was contended that poorhouses were only for certain classes of poor. That was a novelty. His Lordship was not aware of any class, not being "friendless, impotent, poor," who were legally entitled to relief.
Act. Rettie. Agent J. D. Bruce, S.S.C.-Alt.-Gifford and Spittal. Agents-Mackenzie, Innes, and Logan, W.S.
(Before Lord Ormidale.)
BIRRELL V. Beveridge.-Nov. 14.
Evidence (Scotland) Act 1866.
This was the first meeting for adjustment of issues, the order having been pronounced in July. As the case was somewhat complicated, it appeared to both parties more expedient that it should be tried before the Lord Ordinary under the new Act than by a jury, and they craved the Lord Ordinary accordingly. His Lordship of consent recalled the interlocutor ordering issues, and ordered the case to be tried before himself. His Lordship, in doing so, observed that parties should be aware of the course which he would expect to be followed in such proofs. There should be no conjunct proofs, although in very special circumstances a proof in replication might be allowed. The whole procedure should be continuous, and as nearly as possible as at a jury trial; and counsel should be prepared to speak as soon as the evidence was led.
Act.-J. G. Smith.Alt.-Scott.
RODGERS' TRUSTEES v. BROWN.
Evidence (Scotland) Act 1866.
This was the second meeting for adjustment of issues. The defender asked the Lord Ordinary to recal the interlocutor ordering issues and subsequent interlocutors, and to appoint the proof to be taken before himself
with a shorthand writer, under the Evidence Act, 1866. The pursuers did not consent. His Lordship held that he had no power, without consent of both parties, to recal interlocutors already pronounced-although, if the application were made to the Inner House when the case was reported, it might possibly be granted. The Lord Ordinary took the case to report. Act.-A. R. Clark and Adam.-Alt.-Campbell.
(Before Lord Barcaple.)
MP. ROBERTSON v. TAYLOR.-Dec 4.
Evidence Act 1866.
In conjoined actions a proof was led for one of the parties, in May, before a commissioner. Further proof was appointed to be led before the Lord Ordinary to-day. In moving for an adjournment, Shand stated that he wished to look at documents called for from a witness formerly examined, and to recover writings from other havers, before he was in a position to proceed with the proof. In granting the motion, Lord Barcaple observed that, in the view he took of the recent Evidence Act, it was not intended that the Lords Ordinary should have their time occupied in examining havers, but that that matter was to be dealt with as it stood before the passing of the Act. Writings should be recovered from havers before the day of proof.
Counsel for Robertson-Fraser. Agents-Murray & Beith, W.S.
For other Claimants Gifford, Shand, and Lamond. Agents-Crawford & Simson, W.S.; James Webster, S.S.C.; and W. Mitchell, S.S.C.
REGISTRATION APPEAL COURT.
(Lords Kinloch and Ormidale).
GRAY V. PATERSON.-Nov. 21.
Objection to qualification of Paterson, as owner of land. The land was 1 acre of ground laid out for building, but not built upon, and of no agricultural value, but valued at L.290 as a building stance. In respect of this value, the Sheriff (Fraser) repelled the objection. The Court reversed, on the ground that the value contemplated in the Valuation Act is the actual present return derived from the subject.
HECTOR V. CLARK.-Nov. 21.
Clark produced as his title a tack dated 1785, for 999 years. He had acquired right to it by conveyance to himself and his wife in conjunct fee and liferent, and was enrolled as proprietor. Objection that he was not a proprietor but a tenant, sustained by the Sheriff, who held, further, that he had no power to correct the qualification stated in the roll. The Sheriff's judgment affirmed.
VOL. XI. NO. CXXII—FEBRUARY 1867.
SHARP v. CAZENOVE AND RICHARDSON.-Nov. 22.
Buteshire Objection to joint liferent proprietors of subjects. The Hon. G. F. Boyle granted to Cazenove and Richardson a convey ance upon the narrative that the former was "vice-provost and tutor of the Episcopal College at Cumbrae," and the latter "assistant-tutor of the said College," and that he had agreed to make over to them the subjects in question as an endowment for the said College. The dispositive clause was an absolute conveyance in liferent. It was contended that these gentlemen were not in the position of parish ministers or schoolmasters, who held offices recognised and known to the law; but that it was incumbent upon them to prove that they held office ad vitam aut culpam. The disposition in liferent was absolute in terms, but the narrative clause showed that it was only intended as an official liferent, and the parties should therefore be held bound to prove the terms of their appointment. This was the principle followed in the cases of dissenting ministers. Judgment of the Sheriff repelling the objection, affirmed.
GUY V. RESTON.-Nov. 29.
Reston claimed as "owner of ground-annuals payable by P. B. and others." Objection that ground-annuals, constituted as those in question, were not heritable subjects within the meaning of the Reform Act, sec. 7, repelled, affirming Sheriff's judgment.
HENDERSON V. MAXTON.-Nov. 29.
Objection to Laurence Maxton as proprietor of houses, on the ground that the subjects were not of sufficient value, if a third were deducted in respect of terce payable to the claimant's mother. The mother was not served or kenned to her terce. The Sheriff (Fraser) held that, as the widow was not served, the terce ought not to be deducted. The Court reversed, holding it enough that a terce existed. The right of the widow existed independent of the heir, and was as complete in a question with the heir in regard to the third of the property, as his right to the remainder, although service might be requisite to enable her to enforce it, and kenning to localise it. The statute says a party shall be regarded as owner whether his titles are made up or not.
HECTOR V. MARTIN.-Nov. 29.
Objection to Martin as tenant and occupant, on the ground that he was not a tenant and occupant, but a servant (a factor) getting his house as part of his salary without paying any rent, repelled. It was a fact in the case that he could not be turned out of the house, except at the end of a yearly term. Distinction between this and cases of servants having a certain amount of house accommodation as part of their wages-as when a master gives his butler a lodge to live in from which he may be turned out at the will of his employer. The question was raised whether, in the event of