Notes of Cases. COURT OF SESSION. (Reported by William Guthrie and Donald Crawford, Esquires, Advocates.) FIRST DIVISION. DENNEL V. SMELLIE.-Feb. 23. Testament-Destination-Revocation-Reserved Power. Count and reckoning in which the question was as to the right of the pursuer to a share of the rents of a property in Edinburgh, some time belonging to the deceased Robert Smellie, his great-grandfather and the father of the defender. In 1835 Robert Smellie purchased the property, and took the titles to himself and his wife in conjunct-fee and liferent, for her liferent use allenarly, and to the children of the marriage equally among them in fee, reserving full power to himself to deal with the property as if he were absolute fiar. In Feb. 1846, Robert Smellie executed a will in which he provided-"I further allow that, if my son Henry wishes, he will get the Canongate property at £160." Henry Smellie, the defender, exercised this option, and at his father's death took possession of the property, and, he alleged, he duly paid the £160 to his brothers and sisters. He made up a feudal title as his father's heir, and drew the rents. This action was brought on the ground that the original destination had never been effectually revoked, and therefore that the pursuer, who is grandson and heir of one of Robert's daughters, was entitled to one-sixth of the subjects and one-sixth of the rents since Robert's death. The Lord Ordinary (Jerviswoode) assoilzied the defender, on the ground that the will revoked the destination. The Court adhered, on different grounds. Lord CURRIEHILL held that the defender had an ex facie valid feudal title to the subjects, which, while unreduced, was a good defence to a petitory action of this sort. Lord DEAS and ARDMILLAN held that on the merits the defender was entitled to absolvitor. Without deciding whether the will was competent to revoke the destination, the provision in the will founded on was within the reserved power in the original deed, and was therefore to be given effect to whether the deed was revoked or not. Act.-Orr Paterson. Agents.-J. & A. Peddie, W.S.-Alt.-Gifford and Balfour. Agent-G. Cotton, S.S.C. WATT V. SCOTTISH NORTH-EASTERN RAILWAY COMPANY.-Feb. 27. Shareholder. Anderson was proprietor of stock of the railway company, which, with the half yearly dividend declared on 31st January 1863, was arrested by the company in their own hands on the dependence of a summons against Anderson, at their instance, for carriages due to them. In June 1863, Anderson raised the present action of declarator and reduction to set aside the arrestment, with declaratory and petitory conclusions as to the dividends. The railway company pleaded—(1) That their right of retention was a title to exclude, and at all events was a good defence against the declaratory and petitory conclusions of the action; (2) That the arrestment was valid. Anderson having assigned his share, the Court found -20th Jan. 1866, 4 Macph. 315-Watt, his assignee, entitled to insist although the defenders had refused to register him as a shareholder. On 16th Nov. 1864, the Court sustained the first plea for the defenders, in so far as the petitory conclusion of the summons was concerned, repelled it as to the declaratory and reductive conclusions of the action of reduction, and remitted. Before the Lord Ordinary (Jerviswoode) defenders consented to reduction of the arrestment, but maintained their plea of retention as against the declaratory and petitory conclusions in so far as not disposed of by the interlocutor of 16th Nov. 1864. His Lordship accordingly decerned in favour of Watt in terms of the reductive conclusions, and also in terms of the declaratory and petitory conclusions. Against the latter portion of this interlocutor the defenders reclaimed-1st, On the ground that the petitory conclusions had been disposed of by the interlocutor of 16th Nov. 1864; and, 2nd, that, having a right of retention, not only of the dividends, but of the stock, at the date of the assignation to Watt, they were entitled to retain it against all assignees until paid their debt. At the advising to-day, the Court reduced in terms of the reductive conclusions, held the petitory conclusions disposed of, and quoad ultra dismissed the action--1st, because the declaratory conclusions were to be looked on merely as a part of the action of reduction of the arrestment, and were as such disposed of by the interlocutor of 16th Nov. 1864; and, 2nd, because Watt, though entitled to be sisted and insist in the action, had no active title to compel decree under the declaratory conclusions until he had been registered as a shareholder. No one could demand payment of dividends till he appeared on the books of the company as a shareholder. Whether the Company was right in refusing to recognise Anderson's right to assign and in declining to register the transfer, was a point not raised in this action, and it would be most inconvenient, if not incompetent, to decide in this action whether Watt was entitled to be registered, or whether the Company was entitled to refuse to receive any purchaser. Act.-Thoms. Agent-W. Officer, S.S.C.-Alt.-Birnie. AgentJ. Webster, S.S.C. LORD BLANTYRE, &c. v. CLYDE NAVIGATION TRUSTEE-March 1. Reparation—Statutory Powers-Clyde Navigation Acts-Lands Clauses Acts. pre Action by a riparian proprietor on the Clyde for declarator that defenders were bound to raise the foreshore left by their statutory operations between the main channel of the river and his lands to such a level as would vent it from being overflowed at springtides, or at least to such a height as would prevent it from being a nuisance; that they were bound to repair the damage done to his property by their operations; and for damages, -dismissed in respect that it was not averred that the trustees had done anything illegal or beyond their statutory powers, and that the pursuer's proper remedy was to claim compensation in the manner provided by the statutes. Tentative issues ordered with respect to conclusions relative to operations for protection of ferries belonging to pursuer, which he alleged the defenders were bound to execute. MACINTYRE V. MACRAILD.—March 2. Process-Admission on Record. Suspension and interdict at the instance of Macintyre, M.D., practising at Fort-William, against Macraild, who had been for some time his assistant at Brecklet, South Ballachulish, Argyleshire, praying to have respondent interdicted" from practising medicine or surgery at the slate quarries of South Ballachulish, and in the adjacent villages of South Ballachulish, Brecklet, and Carnock, where the workmen at the said quarries reside, and from otherwise interfering with the professional practice of the complainer and his assistant, at the said quarries, and in the said villages." The complainer founded on an alleged agreement, dated Nov. 28, 1864, in which respondent bound himself to continue to act "consistent with a professional honour" and the said Duncan Macintyre's interests, "as long as his connection with him as assistant should last." He also bound himself under a penalty of £500 that he should not accept of the practice of the slate quarries, in case of its being offered to him, to the complainer's exclusion and disadvantage at any future period, nor settle down to practice in the complainer's vicinity. In his original answers to this note of suspension, the respondent admitted that the document founded on was written and signed by him; and on this footing the Lord Ordinary on the Bills granted interim interdict. This judgment was affirmed (4 Macph., 571.) The respondent's revised statement alleged that the document founded on by complainer had been forged by him, and that, although respondent had signed an obligation of the kind referred to, yet, when he had seen it for the first time, when the case was at avizandum in the Inner House on the question of interim interdict, he had found that it differed in certain material words from that founded on. He took his stand on this allegation of forgery, which the complainer pleaded, he was now barred from founding on. The Lord Ordinary (Kinloch) reported the case to the Court in consequence of the unprecedented nature of the circumstances. LORD PRESIDENT-So far as his Lordship knew, the circumstances were unprecedented. The respondent, in his original answers, admitted distinctly, and without reserve or qualification, that he himself wrote and signed the document on which the suspender founded. He now alleged that that document was a forgery, neither written nor signed by him. At first sight one was inclined to hold it impossible to allow a party so to reverse his allegations in the course of a cause. On looking further into the case that difficulty was increased. What he now alleged was that he did write and sign a document on the same subject as that founded on, that he had incautiously instructed his agent to admit that, but had not had access to see it till after the hearing in the First Division, when he discovered that the document founded on in the suspension and interdict was not that which he had written and signed, but a different document, which he then saw for the first time, and which was a fabrication and forgery. For anything yet seen, it was possible that that allegation might be true. If so, then a crime had been committed against the respondent, and he was entitled to the fullest remedy. His Lordship would say nothing as to the probability of the statement, for at present the Court had nothing to do with probability, but only with the question whether the party had made an averment as to which he was entitled to probation. Under the circumstances, however, the re spondent was entitled to no favour; it would be of evil example to allow him now, ope exceptionis, to allege and prove the forgery. In short, the respondent ought not to be allowed in this process to plead forgery unless he sustained his plea by producing a decree of reduction improbation. The complainer's interest was protected in the meantime by the standing interim interdict; and this process, his Lordship suggested, should be sisted until the respondent could follow out such an action. If within a limited time he failed to do so, he ought to be held precluded from maintaining the plea of forgery. Lord CURRIEHILL concurred, observing that his only difficulty was whether enough had not already taken place to bar the respondent from pleading forgery. Lords DEAS and ARDMILLAN concurred. Act.-N. C. Campbell. Agent-John Patten, W.S.-Alt.-W. N. M'Laren. Agent J. M. Macqueen, S.S.C. MOORE v. FORTH IRON COMPANY.-March 5. Jury Trial-A. of S. 16th Feb. 1841 § 46. Action of damages for wrongous dismissal from the situation of manager of the company's works. Issues adjusted 2d Feb. 1866. A judicial tender was made 20th Feb. Commission was obtained by pursuer, 28th Feb., to examine the defenders' books to get evidence of the profits made, Moore's salary having been to some extent regulated by a percentage. An arrangement was made that the books should be examined by an accountant, on behalf of the pursuer, but only in presence of another accountant on behalf of the defenders. On 3d Dec. 1866, pursuer's agent countermanded a notice for trial at the Christmas sittings, on the ground that the men of business could not have the examination of the books completed in time; and he gave notice of trial for March. No objection was taken to this delay, and meetings took place between the accountants in Jan. and Feb. 1867. On 28th Feb. 1867, pursuer's agent intimated acceptance of the tender, and a judicial minute to that effect was lodged on March 1. Defenders moved for absolvitor in terms of sec. 46 of the Act of Sederunt 1841. Blair v. Blair, 22 D. 1271, and Angus v. Grier, 16 D. 303, were referred to. LORD PRESIDENT-Though the provision of the A. of S. was wholesome it might be strained so as to work injustice but for the discretion left to the Court. Sufficient cause for the delay had been shown. The fair and natural arrangement as to the mode of conducting an investigation which was certainly out of the ordinary course, was calculated to cause delay. It was not said that the motive assigned for the countermand and new notice of 3d Dec. was unfounded in fact. Defender could have asked the Court to fix the trial for Christmas if he had felt aggrieved; but instead of doing so, went on afterwards preparing for the trial jointly with the pursuer. The other judges concurred, Lord Deas observing that it was material that the acceptance of the tender preceded the motion to have the action dismissed. Motion refused, expenses of this discussion being allowed in respect of the circumstance to which Lord Deas had called attention. Act.-Watson. Agent-A. K. Morison, S.S.C.-Alt.-Young & Clark. Agents-Lindsay & Paterson, W.S. CAMPBELL V. MACALLUM, &c.—March 6. Property Lease-Servitude-Pasturage-Feu-right. Declarator by Campbell of Aros against feuars in Tobermory, who claim rights of pasturage and cutting peat on his property, that he was absolute proprietor of his estate, free from any privileges whatever on the part of the defenders, and in particular from any right of pasturage on the Muirlawn, and of cutting peats on the muir. In 1789 the British Fishery Society, incorporated by 26 Geo. III., c. 106, published regulations for building and lotting land at Tobermory. The lots were to be granted on leases of ninetynine years, renewable for ever. The eighth regulation declared "that every inhabitant shall have a right to dig peat for his own use in any of the Society's mosses, and also to a summer's grazing for a cow on the Muirlawn of the Society, on paying a sum not exceeding 7s. 6d. per annum for the above privileges." The Lord Ordinary (Kinloch) found that the defenders had failed to establish the rights claimed. The defenders reclaimed. LORD CURRIEHILL, after narrating the form of the action, the origin and purpose of the British Fisheries Society, and the regulations published in 1789, said these rules were an offer to all the world; they were intended to induce people to come forward and take lots, and the Society put itself somewhat in the position of a party selling by unreserved auction. A number of persons closed with the offer. It appeared that no other title was at first given to the allottees than the entry of their names in rentals kept by the Society. These rentals were important, containing, in tabulated form, the conditions on which the allottees obtained lots. There were distinct columns for the names and trades of occupiers, number of the lot on the plan, date of original entry, length of lease (all for ninety-nine years), and rent. The sixth column related to the cows' pasturage, specifying the number of cows and the rent. The rent was that set forth in the regulations. There was another column for horse's pasture, an additional privilege having been added since the date of the regulations of half a horse's pasturage. There were columns for peats charged at 2s. 6d., and for the arable and uncultivated land, to which the allottees were entitled under the regulations. The persons obtaining lots had taken possession, and had ever since possessed these lots, and each had performed the obligation of building a house on his lot, had possessed his house, the grazing, the right of digging peats, and paid the stipulated rent. Upon these facts two questions arose- -1. How far were the Society bound by these regulations, rentals, and minutes. Being followed by rei interventus and possession, these were unquestionably binding on both parties though no formal leases were granted. These documents contained all the essentials of a lease-parties, subjects, rent, entry, and endurance. There was a question whether an ish was not required under the Act, and if so, whether these leases had an ish? There was, however, a specified periol of ninety-nine years for which the lease was current and still binding on the proprietor, and it was unnecessary to inquire into the effect of the obligation that the tenant should have the option to renew his lease at the end of the ninety-nine years. The second question was whether the leases thus constituted were binding on Campbell as a singular successor. The Society had sold all its rights at Tobermory, except the quay and pier, to Mr David Nairne in 1845, who sold in 1850 to Mr Alexander Crawford, who in 1856 sold to the pursuer. In these conveyances there were clauses |