, Petitioner

ther order of Court, and decern: Find the said Margaret Fisher liable to the petitioner in the expenses of both petitions now conjoined, and authorise the said John M. M'Leod, as judicial factor foresaid, to make payment of the taxed amount thereof to the petitioner: Find the said Margaret Fisher also liable to the said John M'Killop and Michael Dunbar in the expenses incurred by them, and authorise them to retain the amount thereof out of the share of the estate in their hands falling to her," &c.

Counsel for the Petitioner-C. S. Dickson -Christie. Agents-Simpson & Marwick, W.S.

Counsel for the Minuters - Graham Murray, Q.C.-Lees. Agent-Macpherson & Mackay, W.S.

Tuesday, November 14.

FIRST DIVISION.

[Lord Low, Ordinary on the Bills.

KECHANS v. BARR.

Bill-Suspension of Charge-Caution. In a case where the suspender of a charge on a bill produced a genuine signature utterly unlike that on the bill, and where the holder of the bill could not allege that the signature thereon was genuine, and had to admit that it differed from that on two other valid bills held by him-held that the note should be passed without caution. Thomas Barr, wine and spirit merchant, Glasgow, was charged at the instance of William Kechans, merchant, Haywood, Lanark, to pay £1000, being the amount of a bill upon which his name appeared as an acceptor. Of this charge he brought a suspension, on the ground that the alleged signature was not genuine and was unauthorised.

Upon 28th June 1893 the Lord Ordinary on the Bills (Low) ordered answers, and appointed "the charger to produce the bill charged on, and the suspender to produce genuine subscriptions in real transactions bearing his signature of date prior to the charge."

In his answers the charger did not allege that the signature on the bills was genuine, but only that he "had no room to doubt the genuineness of the signature, . . . and that if the complainer did not in fact adhibit his signature, he authorised this signature to be adhibited." He also explained that he had held two other bills purporting to be signed by the complainer which had been acknowledged as valid, but he admitted that the signatures on them differed widely from that on the bill now produced and from the signature of the complainer now exhibited.

The complainer produced a sheet of paper

with his signature upon it subsequent to the date of the charge, but with the explanation that he was a very old man, who had not been in the habit of signing documents, and that consequently he had no earlier signatures to exhibit, that in the case of the other bills he had authorised the signature, which was written by his wife, but that here he had given no authority.

The Lord Ordinary on 18th July 1893 passed the note without caution.

The charger reclaimed, and argued -There was an invariable practice in such cases to require caution-Ross v. Millar, December 2, 1831, 10 Sh. 95 (Lord Cringletie's opinion); Renwick, November 24, 1891, 19 R. 163. If the complainer admitted that he had authorised the signing of the other bills, the onus was on him of proving he had not authorised the signature here.

The complainer argued-The Lord Ordinary was right. In the special circumstances caution should not be required. The signature in question was admittedly quite different from that now exhibited, and genuine-Wilson v. Hart, February 25, 1826, 4 Sh. 504; Paterson v. Mitchell, November 25, 1826, 5 Sh. 43; Bruce v. Borthwick, March 3, 1827, 5 Sh. 517; Ross v. Millar, supra.

At advising

LORD PRESIDENT-I think we may adhere to the Lord Ordinary's interlocutor without infringing any of the general rules applicable to cases of this kind.

The complainer alleges that the document in question is a forgery, and upon the Lord Ordinary requiring him to produce several subscriptions in real transactions bearing his signature of date prior to the charge, he makes an explanation which accounts for the absence of documents of that character. He says that he is a very old man, that he does not write well, and that he is not in the habit of signing documents of the character required by the Lord Ordinary. He, however, produces in default a sheet of paper on which he has written his signature, and it is manifestly unlike the signature upon the bill on which the charge proceeded.

Now, the attitude of the respondent turns out to be more complicated than it appeared to be on record. The respondent is in possession of two bills dated prior to the one in question, each of which he held or holds as a valid instrument, and on both of them there is something which purports to be the signature of the complainer, and the respondent is constrained say that the two signatures do not resemble the signature upon the bill upon which the charge proceeded.

to

That being so, and looking to the tone of the record, I cannot say that I read the case upon the ordinary footing of a man asserting that the signature upon a bill in his possession is a genuine signature, and that, coupled with the explanations made at the bar, seems to warrant the Lord Ordinary in passing the note without caution.

LORD ADAM and LORD M'LAREN concurred.

LORD KINNEAR was absent.

The Court adhered.

Counsel for the Complainer-Galloway Agents-W. & F. C. MacIvor, S.S.C.

Counsel for the Respondent and Reclaimer Burnet. Agents - Patrick & James, S.S.C.

Tuesday, November 14.

FIRST

DIVISION.

[Sheriff of Stirlingshire. LENNOX v. REID.

Landlord and Tenant-Heir and Executor -Action of Removing-Title to SueAgricultural Holdings (Scotland) Act 1883 (46 and 47 Vict. cap. 62), sec. 27.

The Agricultural Holdings (Scotland) Act 1883 by sec. 27 provides that "when six months' rent of the holding is due and unpaid it shall be lawful for the landlord to raise an action of removing before the Sheriffa gainst the tenant.

Held that a proprietor of lands, who had succeeded in June 1892, was entitled to raise such an action in respect of the six months' rent payable at Martinmas 1892 not having been paid, his right to do so not being affected by the fact that he might have to account for the amount of said halfyear's rent to the executor of the last proprietor.

Mrs Peareth Lennox of Woodhead and Antermony succeeded to these lands as heir of entail to the Hon. Mrs Kincaid Lennox, who died June 26, 1892. In April 1893 she brought an action in the Sheriff Court at Stirling against Andrew Reid, farmer, Inchbreak, Lennoxtown, for the sum of £80, being the first half-year's rent of his farm for crop and year 1892, due at Martinmas 1892, but unpaid, and to have him ordained to remove at Whitsunday 1893 under the 27th section of the Agricultural Holdings (Scotland) Act 1883, which provides that "when six months' rent of the holding is due and unpaid it shall be lawful for the landlord to raise an action of removing before the Sheriff against the tenant.'

The defender averred that he was not due six months' rent, because upon his entry he had paid £40 in advance as security, which still remained to his credit.

To this averment the pursuer answered that the £40 was not an advance in security, but payment for an early entry.

The defender pleaded-"(1) No title to

sue."

Upon 13th April 1893 the Sheriff-Substitute (BUNTINE) repelled the 1st plea-in-law for the defender, and allowed a proof.

Note.-The pursuer is entailed pro

"The defender pleads no title to sue,' in respect that even if the whole half-year's rent was due and unpaid (which is denied) it was not all due to the pursuer, but only the part accruing after her succession to the estate in June last, the rest being due to the personal representatives of the deceased proprietor.

"The Sheriff-Substitute is of opinion that it is of no consequence to whom the halfyear's rent is due if the tenant is in default.

"Undoubtedy the pursuer is the 'landlord' in the sense of the Act, viz., the person for the time being entitled to receive the rents, and if six months' rent is due and unpaid, then she is entitled to have the tenant removed.

"The defender, however, does not admit that the whole half-year's rent is unpaid, and produces certain receipts. It is tolerably plain from these and from defender's letter, No. 9/3 of process, that the rent is truly unpaid; but in the face of defender's denial a proof on this point has been allowed."

Upon 1st June 1893, after a proof, interim Sheriff-Substitute MITCHELL found that half-a-year's rent was due by the defender, gave decree for the same, and ordained the defender to remove.

To this interlocutor Sheriff LEES adhered.

The defender appealed to the First Division of the Court of Session, and argued—(1) Six months' rent was not in fact unpaid. (2) If it was, it was not due to the pursuer. Although conventionally exigible at Martinmas 1892 it was legally due at Whitsunday 1892, and therefore wholly due to the executor of the late proprietor. In any case only a part of it was due to the present pursuer, and that only under the Apportionment Act of 1870. She had no right to sue an action of removing.

Argued for respondent-(1) Six months' rent was unpaid. (2) The Apportionment Act regulated the rights of heir and executor inter se; but with these the defender had nothing to do. He was liable to be sued in an action of removing by the present proprietor in the lands, whose right was unaffected by the Apportionment Act. At advising

LORD KINNEAR-This is an action for removal of a tenant, founded on the 27th section of the Agricultural Holdings Act 1883, and for payment of £80 of rent alleged to have become due at Martinmas 1892. It is not disputed that if the rent sued for were in fact due to the pursuer, the conditions of the statute would be satisfied. But the defender pleads, first, that the pursuer has no title to sue for rent payable at Martinmas 1892, and secondly, that the defender had

v. Reid

, 1893

already paid one-half of the rent exigible at that term, and is only liable on an accounting for the remaining portion or for £40 instead of £80.

The first of these two pleas is founded on the hypothesis that the rent exigible at Martinmas 1892 belongs to the executor of the late proprietor. The pursuer's averment is that the rent for crop and year 1892 was payable in equal portions at Martinmas 1892 and Whitsunday 1893, and this is not disputed. But the defender maintains that the legal terms were Whitsunday and Martinmas 1892, and therefore that as the portion conventionally exigible at Martinmas was legally payable at the previous Whitsunday, it vested in the late proprietor, who survived till the 26th of June 1892, and is now payable to her executor, and not to the pursuer as heir of entail in possession. I express no opinion as to the respective rights of heir and executor. These may depend on the practice of the estate or solely on the application of general rules to the special conditions of the lease. However that may be, the executor is no party to the process, and we cannot determine the measure of his right in his absence. But assuming for the purpose of the argument that in the division of rents between heir and executor the whole amount payable at the Martinmas term after the late proprietor's death, must fall to the latter, the pursuer has nevertheless in my opinion a perfectly good title to enforce the obligations of the lease, and the tenant has no concern with any question of division or apportionment between her and her predecessor. supposed claim does not arise under the Apportionment Act, but it is a claim of precisely the same nature as that which the Apportionment Act gives to the executor for the rents accruing between Whitsunday and the 26th of June. It is a claim available against the heir in possession to account for the rents which she may levy. But the executor is not put in possession of the estate either by the Act or by the common law, and the proprietor in possession for the time being has an undoubted title to levy the rents. His right to do so is expressly reserved by the statute, in so far as regards apportioned rents. But in this respect the Act only follows the rule of common Law.

The

The general rule is that the contract of lease is transmissible to the respective successors of the contracting parties, and that, to use the words of the first Lord Curriehill, "when such transmission takes place its obligations are prestable, not by or to the original parties or their legal representatives as such, but by and to the parties who shall be in the respective positions of lessor and lessee, or landlord and tenant, at the dates when these obligations become prestable." As between landlord and tenant, it is of no consequence whether the conventional terms correspond with the legal terms or not. It is the conventional terms, or, in other words, the terms of their contract which regulate their

VOL. XXXI.

rights and liabilities; and if a tenant is bound by his contract to pay rent at a certain term, the obligation is prestable at that term to the landlord then in possession irrespective of the obligation of the latter to the representatives of the predecessor. If the defender had been interpelled by the executor from making payment to the pursuer the question might have been different. But it is not suggested that the executor has made any claim against him, and if such claim were to be made there can be no question that the landlord's discharge would give the tenant a sufficient answer.

The second question is one of fact. It is not disputed that a sum of £40 was paid by the defender at Whitsunday 1889. The question is, whether this was paid in advance or security of future rent, or whether it was paid for earlier entry to the houses and grass than the tenant was entitled to under the lease? The evidence has been very carefully examined by the SheriffSubstitute, and I agree with the view he has taken of it. The most material consideration to my mind is that the subsequent conduct of the parties is consistent with the factor's account of their verbal agreement, and altogether inconsistent with the account of the defender. If the payment in question was made in advance or in security of future rents, it is not intelligible that the tenant should have consented to pay the full amount exigible at the next term, and continued to pay in full, term by term, until Martinmas 1892 without ever suggesting that he had already paid a sum to account.

LORD M'LAREN-It is important that it should be understood that the contract of lease is a real contract, and that the respective obligations of landlord and tenant are prestable by them and their heirs, and are therefore exigible by the heirs of the original parties when owing to death there comes to be a change of ownership. It would be especially inconvenient to tenants, and it might be fraught with injustice to their interests, if tenants who were ready to make a payment of their rent to the proper parties were obliged to inquire into the testamentary arrangements of a deceased proprietor, and to discover who, whether by intestacy or under a settlement, would be eventually, and as in a question of succession, entitled to a bygone rent. It is much more convenient, and is in accordance with the settled principles of the law, that the tenant should be entitled to pay over such a rent to the successor in the lands. The principle is not confined to the contract of landlord and tenant, but applies to other relations, e.g., superior and vassal, and indeed to all contracts which are properly real contracts.

On the second point I agree with Lord Kinnear as to the necessary inference which must be drawn from the mode of payment which has regulated the relation of landlord and tenant throughout the lease.

The LORD PRESIDENT concurred.

NO. VI.

FIRST DIVISION.

[Lord Wellwood, Ordinary. CAMPBELL v. DEAS. Poor-Settlement-Rehabilitation-Loss of Residential Settlement-Poor Law Act 1815 (8 and 9 Vict. c. 83), sec. 76.

A woman who had acquired a residential settlement in Greenock left that parish in 1881 and did not afterwards return to it. She received relief in another parish from April 1884 to August 1886. The relieving parish claimed against Inverkip, the parish of the pauper's birth, and also against Greenock. The former admitted liability and reimbursed the relieving parish. Greenock denied liability. From August 1886 to February 1887 the pauper was self-supporting, but at the latter date she again became chargeable, and the relieving parish recovered from Inverkip. In an action by Inverkip against Greenock for payment of the expense of the pauper's maintenance during this second period of chargeability-held that the pauper had been rehabilitated before the second period of chargeability began, and that having been absent from Greenock for more than four years and a day before its commencement, she had lost her residential settlement, and that this result was not affected by the fact that she had received relief in another parish during part of the four years.

Beattie v. Adamson, November 23, 1866, 5 Macph. 47, distinguished.

Opinion by Lord Adam approving the decision in that case.

This was an action at the instance of John Campbell, inspector of poor of the Inverkip district of the parish of Inverkip, against John Strachan Deas, inspector of poor of the parish of Greenock, for payment of £208, being the amount of advances made by the pursuer for behoof of a pauper Mary Ann Hill from April 1887 to October

1891.

The facts of the case as admitted by the parties were these-Mary Ann Hill was born in Inverkip parish in 1856. From 1863 to 1881 she resided with her father in Greenock. In 1881 her father died, at which date his parish of settlement was Greenock by reason of his continuous residence there. At her father's death Mary

Ann Hill had through him a derivative residential settlement in Greenock.

In October 1881 Mary Ann Hill left Greenock, and she did not subsequently return to it.

In April 1884 Mary Ann Hill applied to the inspector of Cardross for relief, and being a proper object of relief she was on 19th May received into Dumbarton poorhouse. Statutory notices and formal claims of relief were duly made by the inspectors of Cardross and Dumbarton against Inverkip, and Inverkip admitted liability. Statutory notices were also sent by Dumbarton and Cardross to Greenock, and in October 1884 a claim was made against Greenock by Dumbarton but Greenock denied liability and the claim was withdrawn. After her admission the pauper remained an inmate of Dumbarton Poorhouse until 19th August 1886, when she left in search of work. The expense of her maintenance during this period was paid by Inverkip to the parishes of Cardross and Dumbarton.

On 14th February 1887 Mary Ann Hill again became chargeable to the parish of Cardross, and was received into Dumbarton Poorhouse. A statutory notice was sent to Inverkip. Inverkip admitted liability on 12th March 1887, and on the same day Inverkip for the first time gave statutory notice of chargeability to Greenock. Greenock did not admit liability.

On 14th June 1887 the pauper left the poorhouse, and from this date onwards she continued to be a proper object of parochial relief. She wandered from parish to parish, always applying for and receiving relief, and on the relieving parishes claiming against the parish of Inverkip, as the parish of birth, their claims were admitted, and the sums expended on her maintenance were repaid.

The defender pleaded, inter alia-“(3) Any residential settlement, if ever possessed by the pauper in the parish of Greenock, having been lost by her absence therefrom for four years, the defender is entitled to absolvitor."

The 76th section of the Poor Law Act 1815 provides-"And be it enacted, that from and after the passing of this Act_no person shall be held to have acquired a settlement in any parish or combination by residence therein, unless such person shall have resided for five years continuously in such parish or combination, and shall have maintained himself without having recourse to common begging, either by himself or his family, and without having received or applied for parochial relief; and no person who shall have acquired a settlement by residence in any parish or combination shall be held to have retained such settlement if during any subsequent period of five years he shall not have resided in such parish or combination continuously for at least one year.”

On 16th November 1892 the Lord Ordinary (WELLWOOD) pronounced this interlocutor:-"Finds in respect of the decision of the Court in the case of Beattie v. Adamson, 5 Macph. 47, that the pauper Mary Ann Hill's residential settlement in the parish

v

of Greenock, which was acquired by continuous residence of the pauper's father prior to his death on 17th June 1881, has not been lost by non-residence, and still subsists: Finds that it is admitted that when the advances sued for were made, the said Mary Ann Hill was a proper object of parochial relief, and the said advances were properly made on her behalf: Therefore decerns and ordains the defender, as inspector of poor of the parish of Greenock, to make payment to the pursuer, as inspector of poor of the parish of Inverkip, of the sum of £200, 15s., the restricted sum now claimed by the pursuer, with interest as concluded for: Finds and declares that the defender, as inspector foresaid, is bound to free and relieve the pursuer, as inspector foresaid, in all time coming, or at least so long as the parochial settlement of the said Mary Ann Hill subsists in the said parish of Greenock, of all alimentary and other advances which the pursuer may hereafter be called upon to make for behoof or on account of the said Mary Ann Hill, and decerns: Finds the pursuer entitled to expenses, &c.

"Opinion.-In this case the Inspector of Poor of the parish of Inverkip seeks to recover from the Inspector of Greenock repayment of £208, 11s. 11d., being the amount of advances for parochial relief which the parish of Inverkip had made from time to time between 29th April 1887 and 31st October 1891 on behalf of a pauper called Mary Ann Hill.

"The defender's third plea-in-law is as follows:-'Any residential settlement, if ever possessed by the pauper in the parish of Greenock, having been lost by her absence therefrom for four years, the defender is entitled to absolvitor.'

"The material facts of the case are as follows:-The pauper was born in the parish of Inverkip in 1856. Between the years 1863 and 1881 she lived with her father William Hill in the parish of Greenock; and at his death on 17th June 1881 she had through him a derivative residential settlement in the parish of Greenock.

It

"In October 1881 she left the parish of Greenock, and has never resided in it since. "On 11th April 1884, when she was residing at Cardross, she applied for parochial relief, and on 19th May 1884 she was received into Dumbarton poorhouse. may here be said, once for all, that from that time forward she never ceased to be an object of parochial relief, and never was rehabilitated so as to be no longer entitled to ask for and receive relief. She wandered from parish to parish, always applying for and receiving relief; and on the relieving parishes claiming against the parish of Inverkip as the parish of birth their claims were admitted.

"It is admitted that the first statutory notice given by the parish of Inverkip to the parish of Greenock was on 12th March 1887, more than five years after the pauper ceased to reside in Greenock. The question is, whether the pauper is to be held to have lost her residential settlement

in Greenock by having failed during the period of five years subsequent to October 1881 to reside continuously for one year in that parish; or whether the fact that within the four years immediately after October 1881 she applied for and obtained parochial relief prevented the loss of her residential settlement in Greenock although no statutory notice was given by Inverkip to Greenock, and no admission of liability was made by the latter parish

"During the first discussion in the Procedure Roll I referred the parties to the case of Beattie v. Adamson, 23rd November 1866, 5 Macph. 47, which seemed to me to be directly in point. Repeated examination of that case has satisfied me that the same point was there expressly decided adversely to the argument of the present defender; and sitting alone I feel bound to follow that decision, although but for it I should have been disposed to come to a different conclusion.

"The material facts in Beattie v. Adamson were these:-A girl Elizabeth Clark, born in 1845, resided with her father, an ablebodied man, in the City Parish of Glasgow, where he acquired a settlement by residence. In May 1854 he removed with his family to Barony Parish. In September 1856 he deserted them in Barony Parish and went to England.

"In November 1856 Elizabeth was admitted to the Barony poorhouse where she remained. On 12th June 1860 Barony Parish sent a statutory notice to the City Parish. The latter denied liability, on the ground that Alexander Clark, the father, having lost his settlement in 1859, the settlement was lost both for himself and for his children. They also pleaded that as Clark was an able-bodied man, neither he nor his children were proper objects of parochial relief.

"It is not necessary to follow the case through all its stages. The Sheriff-Substitute and the Sheriff both assoilzied the

City Parish. The cause having been advocated to the Court of Session, the Lord Ordinary, Lord Barcaple, also assoilzied the City Parish, holding that by 12th June 1860, when the first statutory notice was given to the City Parish, Alexander Clark had lost his settlement in that parish, and that at the date of the said statutory notice the said Elizabeth Clark had not either in her own right or in right of her father a legal settlement in the City Parish of Glasgow.' This judgment was recalled by the Second Division of the Court, Lord Cowan dissenting.

"It will be seen from the opinions of the judges that two questions had to be considered. The first was whether Elizabeth Clark was to be regarded as being a proper object of parochial relief in her own right. The majority of the Court, on the strength of a minute of admissions which had been lodged by the defender, held that she was a proper object of parochial relief in her own right, to the effect of making her settlement independent of the retention or loss of her father's settlement. With that question we have nothing to do here.