Page images

requisite number of years to enable them to claim their retiring pensions, and a very few months will place Vice-Chancellor Stuart and Vice-Chancellor Wood in a similar position. It is somewhat remarkable that, amid all his good fortune in rewarding political adherents, Lord Derby at this moment has only one law-officer out of six in the House of Commons. That one is Sir John Rolt, the Attorney-General for England, who sits for West Gloucestershire. No seat has yet been found for Sir J. B. Karslake, the Solicitor-General; the seat of Mr Morris, the Irish AttorneyGeneral, is formally vacant through his acceptance of office; Mr. Chatterton, the Irish Solicitor General, offers himself for the University of Dublin; and the Scotch Lord Advocate and Solicitor-General are both out of Parliament." We may add that in Lord Russell's Government all the law offices of the three kingdoms, including even the law adviser at Dublin Castle, were in the House of Commons.

FEES ON PRIVATE BILLS.-The fee on the filing of a petition or other document on private bills in the House of Commons is L.5 and L.15 on each of the three readings, as also on the report of the Committee. Out of the 317 bills for next session one firm has 74.-Law Times.

A MODEL BILL.-It is announced in different newspapers that the Private Bill Office has prepared a scheme as a model for private bills. It contains thirty-five clauses applicable to private bills in general, and a supplement of special clauses for certain bills of a special nature.

RAILWAY COMPENSATION.-The following sums were paid as compensation for personal injuries to passengers by the thirteen leading railway companies of Great Britain in 1865-Caledonian, L.12,849; Great Eastern, L.21,996; Great Northern, L.22,387 (this sum includes also the amount paid for damage and loss of goods); Great Western, L.40,061; Lancashire and Yorkshire, L.24,708; London and NorthWestern, L.30,728; London and South-Western, L.25,000 (this sum includes also the amount paid for damage and loss of goods); London, Brighton, and South Coast, L.4504; Manchester, Sheffield, and Lincolnshire, L.6483; Midland, L.25,958; North-Eastern, L.14,355 (this sum includes also the amount paid for damage and loss of goods); North British, L.4621; and South-Eastern, L.70,726.

APPOINTMENTS.-George Monro, Esq., Sheriff of Linlithgowshire, has been appointed by the Home Secretary a member of the Board of Supervision during the subsistence of the Order of Privy Council of 5th December last, renewing the powers of the Board in regard to contagious diseases.

Charles W. Kemp, Esq., has been appointed Sheriff, and William Babtie, Esq., Commissary Clerk, of Dumbartonshire, in place of Mr Phineas Daniel, W.S. The net emoluments of these offices, according to the recent Sheriff Court returns were in 1863, as Sheriff Clerk, L.392, and as Commissary Clerk, L.92.

Mr Wm. Roy, Glasgow, has heen appointed a Commissioner for administering the caths of the High Court of Chancery.

OBITUARY.-The late Mr Phineas Daniel, W.S., Sheriff Clerk of Dumbartonshire, who has died at the age of seventy-eight, was at one time well known as a keen politician, the associate of Jeffrey, Murray, and Cockburn at the time of the Reform Bill agitation. He gave up his professional prospects in Edinburgh, where he had established a considerable business, and removed to London in order to promote the interests of the Whig party. In 1833 he was appointed Secretary to the Commission for inquiring into the condition of the Scottish Municipal Corporations, and in 1834 was appointed to the office which he held until shortly before his death.

George Brodie, Esquire, Advocate, Historigrapher Royal for Scotland, Editor of a valuable edition of Stair, and one of the few learned lawyers of whom the Scotch bar can boast, died on the 22d Jan. Want of space compels us to defer a fuller notice of Mr Brodie till next month.

DEEP-SEA FISHERY COMMISSION.-An International Commission has been appointed for the examination and adjustment of the questions connected with the fishery treaty with France. The French commissioners are M. Manceaux, Conseiller d'Etat, president; M. Herbert, M. Ozanne, M. Ame, and Capt. P. De Chapeaux, superintendent of the Office of Fisheries. The English Commissioners are the Right Hon. Stephen Cave, Vice-president of the Board of Trade-Chief Commissioner; George Shaw Lefevre, Esq., M.P., a member of the Deep-Sea Fishery Commission; Frederick Goulburn, Esq., Commissioner of Customs; and Capt. Hore, R.N., Naval Attaché to the Embassy in Paris. The chief points for consideration will be the

more precise definition of the seas to which the fishery convention will in future apply; the abrogation of legislative enactments with respect to the methods, times, and implements of fishing or dredging the deep seas, imposed by the regulations of 1843; the simplification of the method of trying offences by fishermen in the two countries, so as to avoid unnecessary delay and expense: and the opening of the ports of the two nations to the fishermen of either for the sale of fish, duty free.

JURISDICTION OF ENGLISH DIVORCE COURT.-Sir James Wilde has a very large idea of the jurisdiction committed to him by the Divorce Act, and subsequent Amendment Act (20 and 21 Vic., c. 85, and 22 and 23 Vic., c. 61). In the case of March v. March and Palumbo (11th December), he has decided that, where a husband obtains a divorce from a wife with whom he received considerable property, on account of her infidelity the Court may give a part of her income to the husband, and the issue of the marriage. The wife's income was about L.1400 a year, and the judge directed that L.200 should be appropriated to the education of a child, and L.400 be paid to the petitioner. "The relative amounts contributed by each party, the conduct of each, the total amount of their joint income, the relation it bears to the requirements of the parties, and their respective prospects of increased income, are all elements to be considered. But these elements are not capable of exact expression in figures, and the result must be a general one, and vary with the details of each case. The Law Times says:-"We take no exception to the judgment, but we must remark that the discretion which he assumes to exercise, wholesome as it may be, is certainly wider than the discretion exercised by a judge sitting in equity.” APPOINTMENTS-ENGLAND.-Vice-Chancellor Kindersley has resigned his office, and Richard Malins, Esq., Q. C., has been appointed his successor. Mr Malins was born in 1805, graduated at Cambridge 1827, was called by the Hon. Society of the Inner Temple 1830, and received a silk gown 1849. He sat in Parliament for Wallingford from 1852 to 1865, but lost his seat at the last general election. Sir William Bovill, Q.C., M.P. for Guildford, and Solicitor-General, has been appointed Lord Chief Justice of the Court of Common Pleas, vice Sir William Erle, resigned. John Burgess Karslake, Esq., Q. C., has been appointed Solicitor-General in his room.

COLONIAL.-George Trafford, Esq., barrister-at-law, to be Chief Justice of St Vincent. The salary is L.800 per annum. Mr Trafford was called to the bar by the Middle Temple in 1856.

Notes of Cases.


(Reported by William Guthrie and Harry Davidson, Esquires, Advocates.)


Charter Mortification.

Terms of charters under which held that the University of Edinburgh had no right to share in the property of Trinity College Hospital. Sequel of case reported 22 D. 1222, and 2 Macph. H. of L. 7.


Property Road-Obligation-Personal Bar-Title to sue-Assignation. The pursuer was proprietrix of Bishopston in Kincardineshire. In 1853, the defender obtained permission from her stepson and author and his tutors and curators, to carry a road through part of Bishopston at his own expense, and he agreed at the same time by letter to pay "the amount of damages that may be found due to you by the Commutation Road Trustees, in payment of the land occupied by this road or otherwise." The road was made, and continued to be used for some years as a public road, but it was never adopted by the Statute Labour Road Trustees as a commutation road. It was brought under the notice of the trustees in 1853, and a committee reported favourably upon it; but owing to various circumstances, the matter was not concluded at the time, and the proceedings before the trustees were afterwards dropped by Mr Dyce Nicol. Within the last year or two Mrs Donald shut up the road; and in a suspension and interdict brought against her by Mr Nicol, it was decided in June 1865, by Lord Barcaple, whose judgment was acquiesced in, that she had a right to do so, as the road had never become a public road. She now sues Mr Nicol for the price of the ground, and to have the road fenced, &c., in terms of the agreement of 1853. The Lord Ordinary (Barcaple) held that the position the pursuer had taken up was inconsistent with the present contention, and sustained the plea of the defender that "the understanding on which the road was made having miscarried, and the pursuer having taken possession of the ground on which the road was constructed, the defender was not bound pay for the value of the said ground."


The Court held that, looking to the whole proceedings before the Road Trustees, in the interdict process and in this action, it did not appear that the pursuer's conduct was with a view to the resumption of the ground and the extinction of the bargain. She had rather meant to say, "You have not fulfilled your part of the agreement, and till then I shall not allow you the use of the road." It was said Mrs Donald was not in titulo to main tain the action, in respect she had no good title to the land, or at all events to claim the compensation, because the trustees of the late Mr Donald, VOL XI. NO. CXXII.—FEBRUARY 1867.


with whom the transaction was entered into, were no party to the action. The property acquired by Mrs Donald from her stepson (which had belonged to her late husband, and had been conveyed to her by the stepson under a family arrangement after he became of age) did not, it was argued, comprehend this road; but the conveyance only carried the lands as possessed by her at the time, and the road was made before its date. Further, it was said that compensation was claimed for something done before the conveyance to her, and that the right to that compensation had not been transferred to her. The Court was of opinion that these defences also were not satisfactory. A road through a property conveyed was seldom excepted in terminis from the conveyance; and it was not clear that a proprietor had no interest in the solum of such a road. But there was an assignation to Mrs Donald executed since this action was brought, of all right of her author in the subjects conveyed. It was quite competent, where the substantial right to sue was in a person when he raised his action, to strengthen the title by an assignation obtained pendente processu (Welsh v. Rose, 1857, 19 D. 404). Neither was there anything in the contention that the compensation belonged to the estate of the father, for the agreement was made with young Donald and his tutors and curators, who had conveyed all his rights to the pursuer. There might be a question as to the mode of ascertaining the compensation. The Court was of opinion that this should still be done by the Road Trustees, and it might even be competent to them to fix the amount of interest and the claim for expense of herding while the road was being formed, also concluded for. The Court recalled the Lord Ordinary's interlocutor, allowing the pursuer expenses to this date, and stayed proceedings until January, that Mr Dyce Nicol might state what he proposed to do.

Act. Sol. Gen. and Trayner. Agent-W. N. Fraser, W.S.--Alt. Clark and Adam. Agent J. C. Baxter, W.S.



Declarator, count, reckoning, and payment, at the instance of Mrs Anne Moore Campbell against the trustees and executors of Colonel John Campbell of Melfort, and against the marriage-contract trustees of the said Colonel Campbell and Mrs Louisa F. Ricketts or Campbell, and against others for their interest. The conclusions were for declarator that the pursuer had right to the lands of Kilchoan, and that the trustees should be decerned to convey said lands to her; that she had right to the furniture in Kilchoan belonging to Colonel John Campbell at his death; and that the trustees should be decerned to pay to her the annual profits of the said lands, furniture, and others, from 1st October 1861, when he died, to 26th May 1865; and further, and in any event, that she had right, under Colonel Campbell's will, to the residue of his estate to the extent of L.5000 sterling. Defences were lodged for Melfort Campbell, eldest son of the deceased Patrick Campbell, the truster's brother. Thereafter the trustees raised an action of multiplepoinding, with which the declarator was conjoined. The contentions of parties appear from the judgment of the Court, which was delivered by LORD DEAS. By marriage-settlement in 1839, Colonel Campbell agreed to pay L.5000 to trustees, and a farther sum of L.5000 at his death, to be

liferented by his wife, if she should survive him, and failing children of the marriage, to go to his executors, administrators, and assigns. Colonel Campbell died 1st October 1861, leaving a trust-disposition and will dated 26th June 1861. This trust-disposition gave his widow the liferent use of the farm of Kilchoan, the furniture, &c., the fee of which is now in ques· tion, and appointed the residue of his personal estate, to the amount of L.5000, to be invested in trust for his nephew, A. F. Campbell, "who would then be the head of his family." The widow claimed the provisions under both deeds (the marriage-contract and the deeds of settlement); but the Court found, Jan. 14, 1865, 3 Macph. 360, that she could not take both. She elected to take the provisions under the marriage-contract, the conse. quence of which was to throw loose the rents of Kilchoan since the truster's death, as well as the possession of the furniture, &c., the widow being still alive. Meantime, Archibald Frederick Campbell, the nephew and heir-atlaw of the truster, died on 18th July 1863, leaving a general disposition and settlement in favour of his mother, the pursuer. On 21st June 1865, the mother brought this action to have it found that the fee of the lands under the trust-deed and will had vested in Archibald Frederick, her son, and had been conveyed by him to her by his general disposition and settlement. On 28th November 1865, the trustees and executors under Colonel Campbell's deeds of settlement raised a multiplepoinding, which has been conjoined with Mrs Campbell's action. The Lord Ordinary has found in terms of the first, second, and third conclusions of the summons. It is not very easy to apply this to the summons; but parties explained that by the first conclusion was meant that relating to the fee of the lands of Kilchoan; by the second, that for a decerniture to convey; and by the third, that as to the fee of the furniture; and that it was not intended to decide as to the L.5000. Thus the Lord Ordinary meant to decide that the fee of lands and furniture vested in Archibald Frederick by his survivance of the truster, and was actually conveyed by him to his mother. The intermediate rents of Kilchoan are not disposed of by the Lord Ordinary. The question, therefore, remains open, whether these are intestate succession, and to go to the executors of the truster, or to whom. The question as to the fee of the lands arises under the Scotch trust, and the fee of the furniture under the will. Even if this were not the case, undoubtedly, in construing the one deed, we could not avoid looking to the other. They are of even date, and the one expressly refers to the other. When we look at the trustdeed, it can hardly be doubted that the truster's intention as to the fee of the lands is very obscurely expressed. The question is, Did the fee vest in A. F. Campbell by survivance of the truster or only by survivance of his widow? I think it tolerably clear, at whichever period it was to vest, it was to be an absolute fee. I don't think it is a conveyance with a substitution beyond the immediate disponee. A series of parties is mentioned, but certainly not in such a way as to prevent the heirs-at-law of the first who should take at the truster's death from succeeding. If the fee did vest in Archibald Frederick by survivance of the truster, and he had not disposed of it, it would have gone to his heir-at-law. But even if a destination of this kind had been introduced, the practical result is the same. Archibald Frederick had full right to dispone; and if he has done so, that would carry away the estate from any destination of this kind, just as if there were no destination at all. It is not at all surprising that there

« EelmineJätka »