and G. having failed to make an agreement adjusting their financial relations, went, under section 50 of the Local Government (Scotland) Act of 1889, to the Boundary Commissioners, who, inter alia, ordained G., as from 11th June 1891, to assume responsibility for, and to relieve M. of all allowances made since that date or to be made in respect of paupers who had at that date acquired a settlement within the transferred area. Held that this order was not ultra vires of the Commissioners. Inspector of Galashiels v. Inspector of Melrose and the Boundary Commissioners, p. 318. Breach of Contract. See Sale--Contract. Breach of Lease. See Reparation. Bridge. See Road.

Buildings and Plant Erected by Tenant. See Valuation Cases.

Burgh- Regular Line of Street"-Setting Back Buildings-General Police Act 1862 (25 and 26 Vict. cap. 101), sec. 162. The General Police Act 1862, by section 162, provides that "When any house or building, any part of which projects beyond the regular line of the street,... has been taken down in order to be. rebuilt, the commissioners may require the same to be set backwards to or towards the line of the street." . . . In 1877 the Magistrates of Galashiels resolved to widen one of the streets in the burgh to a minimum width of 40 feet. In 1893 the width of the street opposite most of the houses was 40 feet, and in some cases more, but three houses still projected 13 feet to 15 feet beyond that limit. Upon one of these houses being taken down in order to be rebuilt, the Magistrates sought to have the proprietor ordained to set it back to the 40 feet line. Held (rev. Lord Low) that there was no regular line of street to which they were entitled to have the house set back. Magistrates of Galashiels v. Schulze, p. 585.

Turnpike Act 1831 (1 and 2 Will. IV. cap. 43), sec. 91—Adoption of that Act by Local Act-Street. The Turnpike Act 1831, by section 91, provides "That no houses, walls, or other buildings above 7 feet high shall be erected without the consent of the trustees within the distance of 25 feet from the centre of any turnpike road." . . . The Galashiels Police Act 1876 adopted several sections of the Turnpike Act, including section 91, "so far as the said clauses are applicable to the roads and streets within the extended burgh." ... Held (aff. Lord Low) that the Magistrates of Galashiels were entitled to refuse to allow new buildings of a greater height than 7 feet to be erected on ground hitherto vacant within 25 feet of the centre of a street in the burgh. Magistrates of Galashiels v. Schulze, p. 585.

Police Burgh-Public-House-Certificate -Licensing Authority-Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 38. Held (aff. judgment of Lord Stormonth Darling) that the power of granting and refusing public-house certificates for premises

within a police burgh is not transferred by section 38 of the Burgh Police Act 1892 from the justices of the district within which the burgh is situated to the magistrates of the burgh. Tennent v. Commissioners and Magistrates of Burgh of Partick, p. 619. Burgh-Gas Rates-Duty of Commissioners in Fixing the Price of Gas-Levying of Gas Contingent Guarantee Rate-Burgh Gas Supply (Scotland) Act 1876, secs. 38 and 41. The Burgh Gas Supply (Scotland) Act 1876, by sec. 41, enacts that the gas commissioners shall from time to time fix the price to be paid for gas, which shall, as nearly as can be estimated, raise sufficient income to discharge all the costs incident to the manufacture and distribution of the gas, together with the interest on all money borrowed in respect of the works, and by section 38 it provides for the levying upon all ratepayers, whether consumers of gas or not, of a gas contingent guarantee rate, if required to pay the interest on money borrowed under the provisions of the Act. The commissioners of a burgh in October 1893 fixed the price of gas at 6s. 3d. per 1000 cubic feet for the year 1893-94, and as they foresaw a deficit of £320, they levied a gas contingent guarantee rate at 5d. per £, to meet the interest upon money borrowed. Certain ratepayers of the burgh brought an action to have it declared that the commissioners were bound to fix the price of the gas so as to meet any foreseen deficiency, and were not entitled to levy a gas contingent guarantee rate in anticipation, but only if at the end of the year a deficiency resulted. They did not allege that the commissioners had not applied their minds to the question of the proper price to be fixed in the interests of all concerned, or that if the price had been made higher the total yield would necessarily have been greater. Held that the action fell to be dismissed as irrelevant. Milne and Others v. Commissioners of the Burgh of Lockerbie, p. 784.

Edinburgh Municipal and Police (Amendment) Act 1891 (54 and 55 Vict. c. 136), sec. 44-Edinburgh Improvement and Municipal Police (Amendment) Act 1893 (56 and 57 Vict. c. 154), sec. 34-Height of New Buildings Erected in Existing Street. Held that the provisions of section 44 of the Edinburgh Municipal and Police (Amendment) Act 1891, as amended by section 34 of the Edinburgh Improvement and Municipal and Police (Amendment) Act 1893, regulating the height of houses and buildings in existing streets, apply to buildings erected on ground vacant and unbuilt on, fronting an existing street. Hogg v. Magistrates of Edinburgh, p. 796. See Road-County Council. Business Premises See Revenue.

Capital and Income. See Revenue.
Cash-Credit. See Bankruptcy.
Casualty. See Superior and Vassal—Property.
Casus improvisus, See Husband and Wife,

Causing Obstruction in Public Street. See Justiciary Cases.

Caution Septennial Limitation Act 1695, c. 5— Allegation of Agreement Barring Cautioner Pleading Statutory Limitation - Relevancy The creditors in a bond sued the cautioner upon it more than seven years after its date. They averred that they had intimated to the cautioner their resolution to call up the bond within seven years from its date, and that the cautioner "made application for indulgence, and specially requested that the loan should be allowed to lie over until the children of his said son (the principal debtor) were of age. He further informed the executors (the creditors) that if this indulgence were granted, he would negotiate a further loan of £500 from the bank and advance £400 to his said son in order that he might make a fresh start in business, and so improve his financial position. Said loan was negotiated and said advance made, and the executors granted the indulgence craved and permitted the bond to lie over." The credi

tors pleaded that the cautioner was barred from pleading the operation of the Act 1695, c. 5, as extinguishing his liability under the bond. The pursuers admitted that the children of cautioner's son were still under age. The Court assoilzied the defender, holding that the creditors had made no relevant averment of an agreement on the part of the cautioner to abstain from pleading the operation of the statute; the Lord President and Lord Adam further holding that such an agreement could only have been proved by writing. Anderson's Trustees v. M'Gregor's Executors, p. 4.

See Bill.

Caution for Expenses. See Process. Cautioner-Discharge of Cautioner by Change on Obligation-Trust-Deed for Creditors Substituted for Composition Arrangement without Cautioner's Consent. Under a composition arrangement a cautioner guaranteed to a certain extent the due payment of the last instalment of the composition. The first instalment was not paid, and the creditors obtained from the debtor a trust-deed conveying to them his whole estate. No intimation was sent to the cautioner, but after the execution of the trust-deed a meeting of the creditors was called by circular, a copy of which was sent to the cautioner without objection by him. The debtor's estate was realised, and the amount guaranteed was claimed from the cautioner. Held that the creditors, by taking from the bankrupt the trust-deed without the cautioner's consent, liberated him from the conclusions of the summons. Allan, Buckley Allan, & Milne v. Pattison, P. 138.

See Bankruptcy. Certificate. See Burgh.

Cessio Bonorum-Benefit of Cessio-Prior Creditors-Diligence for Subsequent AcquisitionsCessio Bonorum Act 1836 (6 and 7 Will. IV. cap. 56)-Bankruptcy and Cessio (Scotland)

Act 1881 (44 and 45 Vict. cap. 22)--Debtors (Scotland) Act 1880 (43 and 44 Vict. cap. 34). A decree of cessio bonorum does not debar prior creditors from using diligence against the debtor's subsequent acquisitions. Reid v. M'Bayne, May 16, 1890, 17 R. 757; Calderhead v. Freer and Dobbie, July 9, 1890, 17 R. 1098, considered. Reid v. Graham, p. 779. Charitable Bequest. See Trust-Disposition. Charges of Keeping "Open House" and "Knowingly Permitting Riotous Conduct.” See Justiciary Cases. Charter-Party. See Ship.

Charterers held not Entitled to Freight of Cargo stowed on Deck by Master. See Ship. Chemical Works. See Valuation Cases. Church-Lands Conveyed to Trustees for Use and Benefit of Minister-Mineral Rents and Royalties-Income. A charter dated in 1676 conveyed certain lands to certain persons as representatives of the inhabitants of Bo'ness "for the use and benefit of the minister of the gospel serving the cure at the kirk of Bo'ness." In 1888 the minerals in the lands were leased by the said representatives under a lease for twenty years for payment of a fixed rent of £25 or of royalties. Held that these mineral rents or royalties were not to be handed over to the minister of the parish as ordinary rent or income from the lands, but fell to be accumulated yearly by the representatives of the town for behoof of the benefice, the interest and annual proceeds of the accumulating fund being paid to the minister. Bo'ness Representatives v. Fullarton, p. 25.

Churchyard Churchyard-Wall, Interference with Tombstone-Heritors-Heritors' Right of Compromise. The proprietor of a tenement, bounded on the south by a churchyard, applied to the Dean of Guild to warrant operations which included taking down the churchyard wall and rebuilding it as the back-wall of his proposed tenement. The heritors objected that this "would form an encroachment on the heritors' sole or mutual right of property" in the churchyard wall. The Dean of Guild, finding a competition of heritable right, sisted process, but ultimately, on a joint-minute for the parties, granted warrant finding that the petitioner's operations would not interfere with or prejudice the tombstones or rights of anyone in the wall. The proprietor of a tablet in the wall, and of a family burying ground adjoining, who had been sisted as a defender in the Dean of Guild process, appealed to the Court of Session against the interlocutor, maintaining (1) that the proposed operations would injure his tablet, and (2) that the arrangement in the minute was ultra vires of the heritors. Held that it was within the power of the heritors, as guardians in the public interest of the churchyard, after reasonably and judicially considering the matter, to enter into the arrangement expressed in the jointminute. Turner v. Fraser and Another, p.

228.

Church-Stipend — "Competent and Legal Stipend"-Arrears-Interest-Mora. The minister of the Mid-Parish of Greenock raised an action in 1891 against the magistrates of the burgh to have them ordained to pay him a competent and legal stipend, and for payment of certain arrears, upon the footing that from Whitsunday 1880 until Martinmas 1890 his stipend ought to have been £320 per annum, and from the latter date £400 per annum. Since 1880 he had protested against the stipend which the magistrates offered him, and since 1884, owing to his refusal to give unqualified receipts, he had received not payment. The House of Lords, affirming the decision of the Second Division, held that the magistrates were bound to pay the pursuer a "competent and legal stipend." The case came up again on the interpretation of the expression competent and legal" for the purpose of the petitory conclusions of the summons, and for settling the question of arrears claimed by the pursuer. Held (1) that £400 per annum was now a "competent and legal stipend" for such a parish as MidGreenock, and that £320 per annum had been so for the period between 1880 and 1890; (2) that the pursuer was entitled to the arrears of stipend which had not been paid by the defenders since the date they had been found liable to pay him a "competent and legal stipend ;" (3) that in respect of his delay in raising the action, the pursuer was entitled only to 2 per cent. interest on these arrears. Peters v. Magistrates of Greenock, p. 723.

Churchyard. See Church.

Churchyard Wall, Interference with. See
Church.

Civil or Criminal. See Justiciary Cases.
Claim by Tenant for Landlord's Failure to Put
Buildings in Tenantable Condition.

See

"any officer of the company" to deliver to the official liquidator any effects of the company "which happens to be in his hands for the time being, and to which the company is prima facie entitled. A patentee agreed to sell and assign his patents to a company about to be formed, the consideration to be given by the company being the allotment of a certain number of fully paid-up deferred shares, and the payment of £700 within thirty days of the company's registration, and of £500 when 100 tons of bleeching powder, under the patents, had been manufactured and bona fide sold by the company. The agreement also contained a provision that the patentee should enter the employment of the company on its incorporation as managing director, and should principally take charge of the technical and manufacturing department. The company was duly incorporated, and adopted the agreement with the patentee, but its capital became exhausted before the necessary buildings were completed, and a winding-up order was pronounced by the Court at a creditor's instance. At this date the patents had not yet been assigned by the patentee to the company, there had been no manufacture under the patents, and the £500 was still unpaid. The patentee claimed a right to retain the patents. On the application of the official liquidator under the 100th section of the Companies Act, the Court held that the patentee was an officer of the company within the meaning of that section, and required him to transfer the patents to the liquidator within twenty-one days, reserving to the patentee any claim which he might make in the liquidation to a preference in respect of said sum of £500. Dunlop (Official Liquidator of Donald's Chlorine Company, Limited v. Donald), p. 101. Company-Shares Allotted as Promotion Money -Rectification of Register-Whether Petition Competent or Appropriate--Form of Procedure -Companies Act 1862 (25 and 26 Vict. c. 89), sec. 35. Section 35 of the Companies Act of 1862 provides that "If the name of any person is without sufficient cause entered in or omitted from the register of any company under this Act . . . the person or member aggrieved, or any member of the company, or the company itself, may, as respects

companies registered in Scotland, by summary petition to the Court of Session, or in any such other manner as the said Court may direct, apply for an order of the Court that the register may be rectified." . . . A petition was raised under this section by certain shareholders in a company craving the Court to order that the register of the company should be rectified by deleting therefrom the names of certain shareholders, in respect that their shares had been illegally allotted to them as promotion money. The respondents pleaded that the question at issue could not be competently raised by a petition under the section. The Court, without expressing a decided opinion as to the compe

tency of the application, held that petition under the section was a very inappropriate and inconvenient way of dealing with the questions raised, and that the proper course for the petitioners was to raise an action of reduction in ordinary form, pending the raising of which the petition should be sisted. Opinion by Lord M'Laren that section 35 was not intended to create a substitute for the ordinary forms of procedure in cases where there was a strong divergence between the parties as to facts. Blaikie and Others v. Coats and Others (The British Mexican Railway Company), p. 115. Company "Fully Paid-up" Shares-Representation-Agreement-Companies Act 1867 (30 and 31 Vict. c. 131), sec. 25-Transfer-Liquidation --Rectification of List of Contributories. In April 1891 C. F. & Company, under agreements, lent two steamship companies sums of money, receiving in security mortgages, assignments of freight, and "scrip" of the companies. There was no registered agreement as to the scrip under the 25th section of the Companies Act 1867, and no payment was made other than the loans, but shares in the companies, upon which nothing had been paid, were allotted by M. and S., the directors, to C. F. & Company, with receipts for all possible calls, and with certificates representing that the shares were fully paid-up. In November 1891 C. F. & Company, becoming apprehensive of liability, transferred the shares to S., who was then insolvent but not bankrupt. By inadvertence the transfers were not included in the annual returns, but with the authority of the Registrar of JointStock Companies the return was rectified in March 1892. By mistake, however, the shares transferred to S. were differently numbered from those held by C. F. & Company, although admittedly the same, and C. F. & Company's names still remained on the register, although jottings opposite these shares stated that they were "transferred." The companies went into liquidation in June 1892, and the liquidators put the names of C. F. & Company on the "A" list of contributories. C. F. & Company petitioned to have their names removed, on the ground (1) that their shares must be treated as fully paid-up, because they had only accepted shares represented to be so; and (2) that these shares had been duly transferred, and that there had been undue delay in removing their names. Held that the shares could not be regarded as fully paid-up, but that they had been timeously transferred, and that accordingly C. F. & Company were entitled to have their names removed from the "A" lists, although they would require to go upon the "B" lists should such be made up. Opinion expressed that under a petition for rectification of the list of contributories it is competent incidentally to rectify the register of shareholders. Furness & Company v. The Liquidators of the "Cynthiana" Steamship Company and "Feliciana" Steamship Company, p. 189.

Company Winding-up-Petition by Shareholder for Winding-up Order-Companies Act 1862 (25 and 26 Vict. c. 89), sec. 7, sub-sec. 9. A shareholder of a company, incorporated to purchase and work a particular ship and no other, applied to the Court for a winding-up order on the ground that the ship had been abandoned as a total loss. The petition was opposed by the company. It appeared that notice of abandonment had been given to the underwriters, but that the negotiations for payment of the insurance money had not been completed. No meeting of shareholders had been held to consider the question of a voluntary winding-up, The Court refused the petition, on the grounds (1) that it was not definitely ascertained that the ship was a total loss, and (2) that if and when that was established, it would be for the shareholders to decide whether the company should be wound up voluntarily. Cox v. "Gosford" Ship Company, Limited, p. 257.

Reduction of Capital by Purchase of Postponed Shares-Companies Act 1862 (25 and 26 Vict. c. 89), sec. 51--Companies Act 1867 (30 and 31 Vict. c. 131), sec. 9—Companies Act 1877 (40 and 41 Vict. c. 26), sec. 3. A company whose shares were fully paid-up, and consisted of preference and postponed shares, took powers by special resolution "to reduce the capital in any manner authorised by the Companies Acts in force at the time." The company thereafter passed a special resolution to reduce its capital with the consent of the holder of the postponed shares-(1) by the cancelment, as being unrepresented by available assets, of two-fifths of the nominal value of the postponed shares; and (2) by paying off the remaining three-fifths as being in excess of the wants of the company. To do this they proposed to borrow the sum required on the heritable property of the company. The company had no creditors except tradesmen, servants, and holders of bonds over the heritable property. Upon the petition to confirm the reduction being presented, the Court remitted to a man of business, who reported that the reduction would not diminish liability in respect of unpaid capital, or interfere with the rights of creditors, but stated that he was unable to find authority for the proposition that the loan proposed constituted excess of capital in terms of the Act, and that the Act permitted the payment of such excess to one class of shareholders only. The Court confirmed the reduction, but required the company to continue to use the words "and reduced" for three months. West End Cafe Company, Limited (and Reduced), Petitioners, p. 268.

Constitution of Company-Alteration of Memorandum of Association-Refusal by Court to Confirm Alteration-Companies (Memorandum of Association) Act 1890 (53 and 54 Vict. cap. 62), sec. 1. A company incorporated in 1866 under the Companies Act 1862 resolved in 1893 to extend its objects, and passed a special resolution under section 1 of the

Companies (Memorandum of Association) Act 1890, by which it took powers, inter alia, (e) to acquire the business of any other company carrying on the same business as itself and pay for such business in cash or stock or partly in each; (f) to sell the business or property of the company or any part thereof for payment in cash or in stock or securities of any other company or partly in each, or for such other consideration as might be deemed proper, and to distribute the price among its members; (g) to amalgamate with any other company in the United Kingdom established for objects similar to its own. The company having presented a petition to the Court to confirm the alterations proposed to be made on its articles of association, and a man of business to whom the Court remitted having reported on the matters involved, the Court refused to confirm articles (e), (f), and (g), on the ground that it was not contemplated by the Act that such general powers should be granted beforehand, although upon consideration of any proposed transaction such powers might be sanctioned. Young's Paraffin Light and Mineral Oil Company, Limited, Petitioners, p. 303.

Company-Prospectus--Material Misrepresentation-Rectification of Register. B applied for shares in a projected company in reliance on a statement in a prospectus that S was to be a director. B did not know S personally, but knew him to be the director of another company of established reputation. S withdrew his name before allotment, but no intimation of this fact was made to B. Held that B was entitled to have his name removed from the register of shareholders, in respect that he had been induced to take shares by a material misrepresentation on the part of those acting for the company, made in the knowledge that it was untrue. Blakiston v. London and Scottish Banking and Discount Corporation, Limited, p. 342.

Winding-up- Meeting to Confirm Resolution for Voluntary Winding-up - Quorum -Companies Act 1862 (25 and 26 Vict. cap. 89), First Schedule, Table A, Article 37. Article 37 of Table A of the First Schedule of the Companies Act 1862 provides that "no business shall be transacted at any general meeting, except the declaration of a dividend, unless a quorum of members is present when the meeting proceeds to business." Held (1) that "a quorum of members" means a quorum of members entitled to vote; and (2) that it is not enough to render the proceedings valid that the requisite quorum is present at the beginning of the meeting, but that there must be a quorum while the business is being transacted. Henderson and Others v. Louttit & Company and Others, p. 555.

Reduction of Capital-Minute-QualifiCompanies Act 1867 (30 and 31 Viet. cap. 131), secs. 9 and 15-ProcessErrors in Petition and Minute-Intimation

and Advertisement. By virtue of a special resolution passed at an extraordinary general meeting and confirmed at another extraordinary general meeting, a company proposed to return the shareholders' capital to the extent of one-tenth part. The company thereafter presented a petition craving the Court to make an order confirming the proposed reduction of capital, and to approve of a minute to be registered in terms of section 15 of the Companies Act 1867. This minute, after enumerating the amount of the capital and the number of shares into which it was divided, proceeded-"But in respect of each of the said shares, the company is empowered to pay or return to the shareholders 20 per cent. of the amount so paid up, upon the footing that the amount so paid or returned or any part thereof may be called up again." The reporter, to whom the petition was remitted, brought under the notice of the Court both the qualification in the minute and also the error of putting 20 per cent. instead of 10 per cent. He also pointed out an error in the prayer of the petition in a wrong reference to the section of a statute, but reported that in other respects the petition and proceedings had been regular, and that the order craved might in his opinion be granted. The Court, in respect of these two errors, ordered the petition to be intimated and advertised anew, and remitted to the Lord Ordinary on the Bills to grant the prayer of the petition, after intimation and advertisement had been made. The Scottish Vulcanite Company, Limited, p. 593. Company-Liquidation-Division of Surplus in Liquidator's Hands-Companies Act 1862 (25 and 26 Vict. c. 89), sec. 109. Section 109 of the Companies Act 1862 provides--"The Court shall adjust the rights of the contributories amongst themselves, and distribute any surplus that may remain amongst the parties entitled thereto." A company offered at a premium and succeeded in allotting a new issue of shares. Sometime later the directors informed the new shareholders that they had discovered that the prospectus for new shares contained material misrepresentations. In the course of the liquidation proceedings the Court settled the new shareholders on the list of contributories. were made upon all the shareholders, both "old" and "new," equally, which proved to be excessive, and a considerable surplus remained in the hands of the liquidators for distribution. The "new" shareholders claimed to be repaid out of the surplus the price of their shares and the amount of the calls made upon them preferably to the "old" shareholders, on the ground that the "old" shareholders were not entitled to retain benefit from the fraud of their agents, the directors of the company. Held that the section above quoted did not warrant the preference claimed. Liquidators of the Edinburgh Employers Liability and General Assurance Co. v. Smith and Others, p. 625,

Calls