v. Waddell

In an action of multiplepoinding brought to determine alleged competing claims to a trust-estate the real raiser averred that he was entitled to one-half of the trust-estate, and that the same half was also claimed by another party.

Held that the action was incompetent in respect that it dealt with the whole trust-estate as the fund in medio, and that there was no averment of competing claims as to one-half thereof. Peter Waddell raised an action of multiplepoinding in name of Mrs Catherine Maenab, widow of Peter Macnab, and sole surviving trustee under the antenuptial contract of marriage entered into between her and the said Peter Macnab, against himself, the said Peter Waddell, Mrs Catherine Macnab, as an individual, John Macnab, and certain other parties who were next-of-kin of the deceased Peter Maenab.

The real raiser Peter Waddell averred that by the said contract of marriage the deceased Peter Macnab had conveyed certain estate to the trustees therein named, that the trustees were directed, failing issue of the marriage, and in event (which happened) of Peter Macnab being the predeceaser of the spouses, to make over that estate in two equal shares, one to Peter Macnab's widow for her absolute use, and the other to any person whom Peter Macnab might appoint by any writing under his hand, and failing such appointment to his next-of-kin; that Peter Macnab had left a holograph testamentary settlement, whereby, in exercise of the power of appointment given him by the marriage contract, he had left half of the said trust property contributed by him to the real raiser; that he (the real raiser) claimed that half in virtue of the provisions of the marriage contract and the holograph will, but that Mrs Catherine Macnab would not pay it over to him, as it was also claimed by virtue of an inter vivos assignation from Peter Macnab.

The nominal raiser Mrs Macnab pleaded that the action was incompetent in respect that ex facie of the summons there was no double distress.

On 8th March 1894 the Lord Ordinary (Low) having heard counsel on the closed record on the competency of the action, repelled the defences and sustained the competency.

The nominal raiser reclaimed.
At advising-

of this multiplepoinding, and this appears on the face of the Lord Ordinary's opinion. The only double distress alleged to exist consists of competing claims, not to the fund in medio, but to one-half of the fund in medio. As regards the other half there is no dispute whatever. The real raiser seems to have assumed that if he could show the existence of a competition for any part of the estate this was enough to support the competency of a multiplepoinding, throwing the whole estate into Court as the fund in medio. This view cannot be supported, and its adoption would be highly inconvenient. If we were to sustain this multiplepoinding, the necessary and probably the intended result is that the administration of the whole marriage-contract estate is taken out of the hands of the marriage-contract trustee. For this there is no valid reason. It is the duty of the trustee to divide the estate. A dispute such as we have here, as to who is entitled to this particular share of the estate, might be settled by an action of multiplepoinding for the distribution of the one-half which is the subject of dispute. The present action is in my opinion incompetent.

LORD ADAM Peter Macnab and the defender and nominal raiser Mrs Catherine Macnab entered into an antenuptial marriage-contract, by which Mr Macnab conveyed his whole estate to trustees, of whom the nominal raiser is the sole survivor. In the event (which has happened) of the husband being the predeceaser of the spouses, and of there being no issue of the marriage, one-half of the estate was to go to the widow for her absolute use. There is no question as to that portion of the estate. The other half of the estate was destined to any person whom Peter Macnab might appoint, whom failing to his next-of-kin. As regards this half of the estate there is double distress. A claim to it is lodged by Peter Waddell, who is the heir under a will left by Macnab, and it is also claimed by John Macnab, a brother of Peter Macnab. If the fund in medio had been limited to the latter half of the estate, I should have agreed with the Lord Ordinary in thinking that there was double distress, but the fund is not limited to that half of the estate, but comprises the whole estate. It is, however, the duty of the marriage-contract trustee to administer the estate, and having done so, to pay over the estate to the person in right of it.

It appears to me that because two persons may have a claim to one-half of the estate, that affords no ground for throwing the whole estate into Court, the effect of such a course being to oust the trustee from her right to administer the estate. I do not think that that course is competent, and I therefore concur with your Lordship.

LORD M'LAREN and LORD KINNEAR Concurred.

The Court recalled the interlocutor of the

(Before the Lord Justice-Clerk, Lord Kincairney, and Lord Stormonth Darling.) MADIN v. M'LEAN AND OTHERS. Justiciary Cases-Public-House-ClubExcise Licences Act 1825 (6 Geo. IV. c. 81), sec. 26-Inland Revenue Act 1880 (43 and 44 Vict. c. 20), sec. 43.

The rules of admission to membership of a working-men's club provided that intending members should be enrolled in a register (subject to a power of rejection by the committee of the club), and should pay an entry money and subscription. In practice these rules were disregarded, and the bar-keeper was authorised by the committee to admit any person whose appearance was in his opinion respectable on payment of the quarterly subscription of threepence, without either enrolment or payment of entrymoney.

Held that the club, by reason of its permitting such a system of admission in violation of its rules, was not a bona fide club, and that a sale of spirits to a member so admitted was a sale requiring an Excise licence.

James M'Lean, James Neill, and David Nairn, the chairman, secretary, and treasurer of the Committee of the Montrose Working-Men's Club, were charged in the Justice of the Peace Court at Montrose at the instance of Charles Henry Madin, officer of Inland Revenue, with selling spirits without a licence, in contravention of section 26 of the Excise Licences Act 1825, as amended by the 43rd section of the Inland Revenue Act 1880. The spirits were sold to John Mitchell, Supervisor of Inland Revenue, by Alexander Cathro, the bar-keeper of the club, within the club premises. In defence it was maintained that the club was a bona fide club, and that the spirits had been supplied to Mitchell after he had been duly admitted a member. The Justices sustained this defence and dismissed the complaint.

A case was stated to the High Court at the instance of the Inland Revenue, and the following facts were found provedThe Committee of Management of the club, which consisted of seven members, including the accused, had power to manage the club in conformity with the constitution and bye-laws of the club.

Alexander Cathro, who was a member of the club, had been engaged by the committee to act as club-master and barkeeper, and was responsible to the committee.

On 28th July, Mitchell, who was then a stranger to Cathro, visited the said premises and requested to be supplied with drink. He was refused, not being a mem ber. He then asked Cathro how he could become a member, and being told, was, at his own request, admitted a member of the club and supplied with a ticket of membership (for which he paid threepence for three months) by Cathro, who had authority to admit those whom he knew or from whose appearance he could gather would be respectable members. Members are admitted for a year upon payment of one shilling for a ticket, for half-a-year upon payment of sixpence, and for three months upon payment of threepence. Cathro considered that Mitchell would make a suitable member, and supplied him with a ticket on which were printed the bye-laws of the club.

Mitchell, after admission as a member, asked for a nip of spirits, which Cathro supplied, and for which Mitchell paid twopence. Mitchell was not introduced or proposed for admission as a member of the club. Cathro was the servant of the Club Committee, and acted in accordance with their instructions in admitting Mitchell a member of the club, and supplying him, as a member of the club, with spirits.

There was put in evidence by the respondents the following excerpt from "Conditions of Membership" of the club:

"Membership of the club shall be constituted by the payment in advance of threepence quarterly, sixpence half-yearly, or one shilling annually, and enrolment in the register of members, but only members who are enrolled for a year current at the time of the general meeting shall have a voice in the management of the club."

"After the 1st day of June 1893, each person desirous of becoming a member of the club shall pay the sum of sixpence of entry-money besides the ordinary subscription."

"The committee shall have power to reject persons wishing to become members, or to expel those who may be disorderly, and generally to enforce the rules."

The question of law for the opinion of the Court was—“Whether, upon the facts stated, we were justified in holding that the said club was a bona fide club, and that Mitchell was duly admitted a member thereof, and that the sale of spirits to him was not a sale for which an Excise licence to retail spirits was required by the respondents."

Argued for the appellant-(1) Assuming that the conditions of membership were in force, Mitchell was not duly elected a member. These conditions required, besides payment of the subscription for three months, enrolment in the register of members, and also the payment of

entry-money. Neither of the latter requisites were complied with in Mitchell's case. (2) If the rules as to membership were not enforced, and if anyone on payment of threepence could become a member for three months, then the club could not be regarded as a bona fide club, but was practically a shebeen for the sale of drink to all comers.

Argued for the respondents-The Justices had found in fact that Mitchell had been duly admitted. The committee were entitled to delegate their powers as to the admission or rejection of members to one or more of their number. Cathro, who was a member, had the delegated power of the committee in this respect. Such delegation was a common practice in all clubs, and the smallness of the subscription merely reflected the pecuniary circumstances of the members.

At advising

LORD JUSTICE-CLERK-There are certain rules of this club which are produced and quoted in full in the case as the conditions of membership of the Montrose WorkingMen's Club. All I have to say about them is this-If these were the conditions of admission that were in operation, then I think that the club was a bona fide club in every sense of the word-a club in which the committee had the selection and the rejection of members-a club in which there was enrolment in a register of members, an entry-money, and an annual subscription-and if anything had been done in the club-house which was contrary to these conditions of membership, then whoever did it would be liable for breach, either to the committee if it was a breach of the rules not involving public consequences, or to the law if it was one which did involve public consequences. But then it is said by the Justices as matter of factand I take it as being stated as matter of fact that these were not the rules which

were in operation at all. It is a very remarkable thing that rules should be produced by the respondents which they themselves said before the Justices were in operation, and which they at the bar, because of the exigencies of their case, now say may not have been in operation. But I take it that the Justices have found that certain other rules were in operation. Now, what were those rules? They were-that a certain Mr Cathro, who was manager for the club and also a member of the club, had authority to admit those whom he knew, or those who from their appearance he considered would be decent and respectable members, and that he did admit this Mr Mitchell as a member of the club at his own request - I presume, as he was not known to Cathro, on the footing that he looked respectable-that Cathro received 3d. from him, and that by that payment he became a member of the club for three months, and that he was served with spirits. Now, taking these to be the facts-that this club admitted its members in this way-I have no hesitation in holding that the Justices were wrong,

for they held that this was a bona fide club, and therefore acquitted the respondents. I think a more plain case of mala fides in the working of a club could not possibly be presented. If you are going to carry on a club at all, and carry it on as a sham, you will have some kind of ceremony that has to be gone through, and what conceivable ceremony more utterly unlike bona fides could there be than that a club should have rules by which admission shall be carried out in a particular way, but that the committee, without the club, should abrogate the rules and give power to the manager to admit anybody off the street as a member of that club, whether he knew him or not? It is not an easy thing of course in cases of this kind to draw lines and to say exactly where bona fides ends and mala fides begins, but I think it is easy in this case to come to the conclusion that you are very far beyond the line, well and deep down into mala fides, when it is maintained on the part of the club that these are the rules, and that this man was bona fide admitted as a member under them. This case probably may be useful for purposes of instruction. I think it probable that this club began in respectability, and I cannot help suggesting that if it is to go on in respectability it will avoid having such a plan as this for admitting new members, which it could have no object in doing except to sell liquor to them. The result of this case will, I hope, not be to lead to any further prosecution, and I think the respectable members of the club ought to be well satisfied to have it held that their committee have brought them into the position of being held on that occasion-for I put it no further-to have been acting not as a bona fide club but in mala fide. I am quite certain that when this club was originally formedcontaining, as I have no doubt it does, many most respectable members-if it had been proposed in that meeting that members should be admitted to the club in such a way as the respondents now maintain that this man was admitted, every respectable man at that time probably would have refused to have anything to do with its formation. But the question before us is, whether upon the state of facts found proved the Justices were right in the course they took of holding that the club was a bona fide club. I am of opinion that they were not.

LORD KINCAIRNEY-I substantially concur. The first question put is whether the Justices were justified in holding that the club was a bona fide club. Now, when the question is whether a club is a bona fide club or a sham one-a shebeen-I think you are perfectly certain to find that the printed constitution of the club is all quite right, and that if regard were had to the printed constitution only, it could not be said it was not a bona fide club. But then it seems to me the question is not about the printed constitution of the club, but about the practice, and I take the practice to be as is stated. They did not act according to

their regulations and constitution, but they acted differently, and I think in a question whether a club is bona fide or not it is an important point that the club did not at all act according to their rules, which are perhaps unobjectionable, but totally differently, in the loose unguarded manner which is stated, and without any precautions of any kind. I think that the case contains not only a statement as to the manner in which Mitchell was admitted, but also a statement that he was admitted in accordance with the practice of the club, which was not in accordance but at variance with the written constitution. Holding then that the question turns on the practice of this club, I concur in thinking that that practice was not consistent with the conduct of a bona fide club. As to the second question, whether Mitchell was duly admitted a member of the club, my view is that that is incompetently put, because the Justices have said that he was admitted a member, and have stated the practice according to which he was admitted. not see how it can be denied that Mitchell was admitted a member of the club, and duly admitted, when the Justices in the case have stated the fact to be so. It seems to me that the Justices ask us to say whether they were right in a matter of fact, and I think that is incompetent, but I am quite prepared to say that the club as carried on was not a bona fide club.

I do

LORD STORMONTH DARLING-There was here a sale of spirits by persons not having an Excise licence, and they can only take themselves out of the operation of the statute by showing that the sale was not a transaction between vendor and purchaser, but between club and member. Now, I agree with both your Lordships that there is nothing in the facts stated to lead one to the conclusion that this was anything but a bona fide club so long as its rules and regulations were observed. Its purposes were lawful and usual. According to the conditions of membership which are set out in the case, a member could only be admitted by enrolment, subject to a power of rejection by the committee and payment of entrymoney and subscription. It was nothing against the good faith of the institution that the entry-money and subscription were small, but it appears that the rules were, by the act of the respondents, absolutely and habitually disregarded. In the present case a man was admitted by simply handing threepence over the counter to the club-keeper, who knew so little of him that he would not have admitted him if he had known who he was, for he was a supervisor of Inland Revenue. And this was no act of disobedience on the part of the club-keeper, for the Justices tell us he had authority to admit anybody who presented himself, and who was in his opinion of respectable ap. pearance, on payment of 3d., 6d., or 1s., according as the period was three months, six months, or a year. In other words, there was to be no consideration of the case by the committee, and no payment of

entry-money. I should, therefore, personally be prepared to hold that Mitchell was not duly admitted a member according to the rules of the club, but I also hold, in agreement with both your Lordships, that whatever may have been the original character of the club, it had, by permitting such a system of admission to exist, ceased to be a bona fide club.

The Court found that the club as carried on was not a bona fide club, and that the sale to the said John Mitchell was a sale for which an Excise licence to retail spirits was required.

Counsel for the Appellant-The Lord Advocate-A. J. Young. Agent-Philip J. Hamilton Grierson, Solicitor of Inland Revenue.

Counsel for the Respondents - A. L. M'Clure. Agents · Duncan Smith & M'Laren, S.S.C.

Monday, May 21.

(Before the Lord Justice-Clerk, Lords Adam and Wellwood.)

SWEENEY, PETITIONER. Justiciary Cases - Petition for Recal of Sentence of Fugitation.

A panel against whom sentence of fugitation and outlawry had been pronounced in consequence of his failure to appear and answer to an indictment charging him along with another with attempt to murder and with murder, petitioned the Court to recal the sentence on the ground that at the time of the trial, which had proceeded against the other panel, he was absent from Scotland, and that he was now willing to stand his trial. The petition was duly intimated to the Crown, but no appearance was made for the Crown. The Court recalled the sentence. Edward Sweeney, who along with Alfred John Monson was charged with an attempt to murder and with the murder of Windsor Dudley Cecil Hamborough, had been outlawed on his failure to appear and answer to the charge. In the absence of Sweeney the trial proceeded against Monson, and the charge against him was found not proven. Thereafter Sweeney presented the following petition to the Court of Justiciary for recall of the sentence of outlawry against him :

"The Petition of Edward Sweeney, Commis

sion Agent, 66 Meadow Road, Clapham, County of Surrey, England.

"Humbly Sheweth-That on an indictment at the instance of the Right Honourable John Blair Balfour, Her Majesty's Advocate, the petitioner was indicted and accused as Edward Sweeney, alias Davis, alias Scott, residing at Ardlamont House, parish of Kilfinan, Argyllshire, along with Alfred John Monson, designed in the said

indictment as then a prisoner in the prison of Edinburgh, on the charges following, viz:-(1) That the accused having formed the design of causing, by drowning, the death of Windsor Dudley Cecil Hamborough, sometime residing at Ardlamont House aforesaid, did, in execution thereof, and in the manner set forth in the said indictment, attempt to murder him; and (2) that on 10th August 1893, at the place described in the said indictment, the accused did shoot the said Windsor Dudley Cecil Hamborough and kill him, and did thus murder him, and that the petitioner, being conscious of his guilt in the premises, did abscond and flee from justice.

"That on 25th November 1893, in the Court of the Sheriffdom of Argyll, held at Inverary, the diet having been called against the petitioner on the said indictment, and he having failed to appear, the Court adjourned the case to the second diet in the High Court of Justiciary to be held at Edinburgh.

"That at the said second diet, held at Edinburgh on 12th December 1893, sitting in judgment the Lord Justice-Clerk, the petitioner failed to appear, and the Court pronounced sentence of outlawry against him.

"The petitioner is not guilty of the charges made against him in the said indictment. He was furth of Scotland at the dates of the two diets aforesaid, but he now desires and is prepared to meet the said charges, and for that purpose he will appear in Court at the calling hereof, and surrender his person, to the end that his trial upon the said charges, or either of them, may proceed. In order to enable the petitioner to prepare for his defence, and to be relieved from the disabilities consequent upon the foresaid sentence of outlawry, it is necessary that the foresaid sentence should be recalled.

"May it therefore please your Lordships to appoint this petition to be intimated to Her Majesty's Advocate, for Her Majesty's interest, and thereafter to recall the sentence of fugitation and outlawry pronounced against the petitioner as aforesaid, with all that has followed or is competent to follow thereon, and to repone him thereagainst, or to do otherwise in the premises as to your Lordships may seem proper."

This petition was duly intimated to the Crown, but no answers were lodged and no appearance was made for the Crown either by minute or at the bar.

Counsel for the petitioner submitted that there was no interest in anyone to oppose the granting of the petition.

procedure on the part of the representatives of the Crown in making no appearance in this case. I think it is their duty, the matter having been duly intimated to them, to appear, and it is not at all satisfactory that the case should be in this position. The actual position is this-that a person who has been accused of crime, and been fugitated for non-appearance at the proper diet of the trial, now states that he is within the jurisdiction, and that he is prepared to meet the charge the Crown makes against him, and, as the Crown representatives have not appeared, in the circumstances I think the proper course is that he should be reponed against the sentence of outlawry pronounced against him in respect of his former non-appearance.

LORD ADAM-I am of the same opinion. According to my ideas of the practice in such matters, I think it is usual for the Crown to put in a minute that they do not mean to oppose the application, or at least to appear at the bar and state so; but they have not chosen to follow that course in this case, and that being so, I think we must assume that they do not intend to oppose this application, and it is not for the public interests that it should be refused. I therefore agree with your Lordship that the only course for us is to recall the sentence of outlawry.

LORD WELLWOOD-I am of the same opinion.

The Court recalled the sentence of fugitation mentioned in the petition, and reponed the petitioner thereagainst as craved.”"

Counsel for the Petitioner--A. S. D. Thomson. Agent-David Forsyth, Solicitor.

Friday, June 1.

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(Full Bench Before the Lord JusticeGeneral, Lord Justice-Clerk, Lords Adam, Kyllachy, Kincairney, and Stormonth Darling.)

TOMLINSON v. BREMRIDGE.

Justiciary Cases

Pharmacy Act 1868 (31 and 32 Vic. cap. 121), secs. 1 and 15 Sale of Poisons by Unregistered Assistant.

Section 15 of the Pharmacy Act 1868 provides that any person who shall sell or keep open shop for the retailing, dispensing or compounding poisons . . not being a duly registered chemist, or chemist and druggist shall for

every such offence be liable to pay a penalty or sum of £5.

Held (following the case of the Pharmaceutical Society v. Wheeldon, L.R., 24 Q.B.D. 683) that the penalty imposed by this section is incurred by an unregistered assistant of a medical practitioner who in the absence of his employer, sells any of the poisons