Company Winding-up-Petition by Creditor— Opposition of Majority of Creditors-Companies Act 1862 (25 and 26 Vict. cap. 89), secs. 79 and 80. The creditor of a company having charged for payment of his debt, and the induciæ having expired without payment being made, he presented a petition for a winding-up order. The application was opposed by creditors who held much the greater part of the debt due by the company, on the grounds that a liquidation would be injurious to the just interests of the creditors, and that the petitioner would get nothing by it. The Court held that the petitioner was entitled to the order craved, the respondents having failed to show that there were no assets which could be made available in the liquidation for payment of his debt. Observations on The Chapelhouse Colliery Company's case, L.R., 24 Ch. Div. 259. Gardner & Company . Link and Others, p. 804. Railway and Canal Companies-Whether "Company" includes Commissioners—Valuation of Lands Act 1854 (17 and 18 Vict. c. 54), sec. 21-Rule of Construction. The Valuation of Lands (Scotland) Act 1854, by sec. 21, provides that the Assessor of Railways and Canals under this Act shall fix the value of all lands belonging to each railway and canal company. Held that "company" as so used was not a technical word, and included a body of statutory commissioners charged with the administration of a canal. Commissioners of the Caledonian Canal v. County Councils of Inverness and Argyll, p. 830. Compensation. See Bankruptcy-Railway. Compensation for Injury. See Master and Servant. Compensation for Unexhausted Improvements. See Landlord and Tenant. Competency. See Process--Appeal-Justiciary Cases-Judicial Factor-Road-Reclaiming Note-Reparation-Property. Competency in Bill Chamber in Vacation. See Competency of Appeal. See Process. Competency of Suspension. See Justiciary Cases. Composition. See Bankruptcy - Superior and Vassal. Compromise of Action. See Contract. Concurring Pursuer. See Process. Conditio si sine liberis decesserit. See Succession. See Insurance. Conditional Institution. See Succession. Conflicting Interest of Owner and Occupier of Consequential Damages. See Sale. Consideration other than Rent. See Valuation Cases. Consistent with Law. See Contract. Constitution of Company. See Company. Construction. See Succession-Trust-Disposition -Railway-Property—Will and Succession. Construction of Act of Parliament. See Process. Construction of Contract. See Contract. Construction of Testament. See Succession. Contract-Compromise of Action—Joint-Minute -Proof of Agreement Varying Terms of Compromise in Joint-Minute. After decree had been pronounced disposing of an action in terms of a joint-minute, the defender reclaimed, and lodged a statement of res noviter veniens ad notitiam, averring that before the decree was pronounced the parties concluded a verbal agreement varying the terms of the joint-minute. Held that as the joint-minute was a written contract, parole proof of an agreement modifying its terms was incompetent. Hamilton & Baird v. Lewis, p. 97. Breach of Contract-Sale of Heritage-Refusal to Supply Sufficient Title--Transaction Cancelled. After a sale of a ground-annual had been arranged the seller found difficulty in supplying a valid title. A lengthy correspondence took place in which the purchasers expressed themselves willing to allow reasonable time, but finally the seller offered a title, afterwards admitted to be insufficient, saying he could do no more, and threatening the purchasers with an action if they declined to accept it. The purchasers thereupon cancelled the transaction. In an action brought by the seller against the purchasers to have the contract implemented, he produced a valid title, which it had not been previously in his power to furnish. Held (rev. Lord Wellwood) that the defenders were entitled to cancel the transaction, and accordingly fell to be assoilzied, the pursuer having stated an ultimatum which they were not bound to accept. Gilfillan v. Cadell & Grant, p. 216. Barter--Pactum illicitum--Weights and Measures Act 1878 (41 and 42 Vict. c. 49), sec. 19. Held that a contract of barter, wherein one party bargained for delivery of 600 stones of hay at 24 imperial pounds the stone, was not void under the provisions of the Weights and Measures Act 1878. Lang v. Cameron, p. 251. Breach of Contract-Illegal Contract— Claim for Repayment--Lottery Acts. A person became a member of a provident society under a contract whereby he agreed to pay certain monthly instalments in consideration of receiving a bond for £500 payable at the end of thirty years. The contract provided that ballots should be held monthly, and that a bondholder whose bond was drawn should be entitled to receive an advance equal to the amount secured in the bond without having to pay interest upon it; and further, that in the event of the bondholder dying, or wishing at the end of five years to withdraw, the association would pay the surrender value of the bond provided that no advance had been made upon it. The bondholder having paid the monthly instalments regularly for two and a half years, and no advance having been made on his bond, brought an action against the society for repayment of his instalments or for the surrender value of the bond. He averred that he was not informed that if he withdrew before the expiry of five years he would not receive his money back, and therefore that it was a breach of contract to refuse to repay him; and further, that he was entitled to repayment, as the ballots under which alone he could derive any real benefit were by the Lottery Acts illegal. Held (1) that by the terms of the written contract the pursuer was not entitled to withdraw until he had subscribed for five years; (2) following Wallingford v. Mutual Society, 1880, L.R., 5 App. Cas. 685) that the provision with regard to the holding of ballots did not render the contract illegal under the Lottery Acts, and action dismissed as irrelevant. Observed by the Lord Ordinary (Wellwood) and by Lord Adam) that even if this contract came under the Lottery Acts, it did not follow that the pursuer was entitled to have his money repaid. Sinclair v. Provident Association of London, Limited, p. 501. Contract Agreement to Buy a Particular Bond and Disposition in Security--Rate of Interest not Specified in Bond-Whether Purchaser Entitled to Resile. A firm of lawyers offered to take an assignation to a particular bond and disposition in security so as to prevent the heritable subjects over which it was granted being exposed for sale, and this offer was duly accepted. They afterwards refused to implement the contract on the ground that the title was defective, as the bond failed to specify the rate at which the interest stipulated for was to be paid. Held that they had agreed to accept the bond as it stood, and were not entitled to resile. Opinion by Lord Low that the bond did not constitute a good security for interest. Opinions reserved on this point by Lords M'Laren and Kinnear. Forbes and Others v. Welsh & Forbes, p. 520. Sule-Custom of Trade-Whether Consistent with Law. The defenders alleged but failed to prove a custom of trade to the effect that when a date was fixed for reply to an offer the reply must be not only despatched but received by that date. Opinion by Lord Stormonth Darling that the alleged custom of trade, even if proved, would have been ineffectual to affix to the contract the meaning which the defenders desired to put upon it in respect that it was inconsistent with law. Opinion by Lord Young e contra. Jacobsen, Sons, & Company v. Underwood & Son, Limited, p. 545. Locus solutionis-Conflict of Laws-Reference to Arbiters Unnamed. When two parties, living under different systems of law, enter into a personal contract, which of these systems must be applied to its construction depends upon their mutual intention, either expressed or implied. By contract executed in London, an English firm agreed to buy from distillers in Skye all grains made by them at a specified price, and to erect a grain drying machine at the distillery. The distillers agreed to maintain the machine and to bag up their grains in the sacks of the English firm, and to deliver them free at a port in Skye. The contract further provided-"Should any dispute arise out of this contract, the same to be settled by arbitration by two members of the London Corn Exchange or their umpire in the usual way." Held (rev. the decision of the First Division) that the language of the reference clause indicated that the parties intended it to be interpreted and governed by English law, and being valid by that law the Scottish Court must give effect to it. Hamlyn & Company v. Talisker Distillery and Others, p. 642. Contract-Privity of Contract-Agent for Company about to be Formed-Relevancy-Title to Sue. A firm acting in the interests of a company about to be formed, contracted with an engineering company for the supply of certain machinery to be used by the new company when formed. Delivery was to be f.o.b. in Glasgow harbour. The company was incorporated while the machinery was being made, and thereafter tried to use the machinery which was fitted up for them in India by a person sent out by the engineering firm, and worked by a manager selected by said firm, but it was not alleged that they had done anything to constitute a direct contractual relationship between themselves and the engineering firm. Subsequently with the concurrence of those who had acted on their behalf, they brought an action of damages against the said firm, on the ground that the machinery supplied was not conform to contract. Held that they had no title to sue, seeing that the firm who had contracted with the engineers could not act as agents for a non-existent principal, and that the company had set forth no relevant statement instructing privity of contract between themselves and the defenders. Tinnevelly Sugar Refining Company, Limited v. The Mirrlees, Watson, & Yaryan Company, Limited, p. 823. Coal Company-Construction of Contract -Contract to Deliver a Quantity of Coal in Equal Monthly Quantities-Measure of Damages. A company of coalmasters offered to deliver to a firm of coal exporters 3000 tons Ell coal "over next four months in average monthly quantities, delivery in shipping lots of 4/600 tons at a time on due notice being given," and the coal exporters accepted the above quantity, "delivery in about equal monthly quantities over the next four months." Held that the coalmasters were not bound under the contract to deliver 3000 tons in all, the quantity not delivered in one month being delivered in another, but that the contract was for monthly deliveries of about 750 tons of coal until 3000 tons had been delivered during the four months, each month's delivery being separate and separable, although the rights and obligations hine inde arose out of one contract for 3000 tons of coal. Ireland & Son v. The Merryton Coal Company, p. 834. Contract-Sale-Condition-MisrepresentationTitle to Sue. By agreement entered into on 11th November 1889 M agreed to sell to D a brewery at the price of £29,500, to be paid by the 31st December, when a conveyance was to be granted to D or to any company to which he might assign his interest. On 14th December D agreed to sell the brewery to the Breweries Company at the price of £28,500. On 31st December M, at D's instance, and in fulfilment of their contract of 11th November, granted a conveyance to the Breweries Company, and D's interest in the brewery ceased. The agreement of 11th November provided that the arrangement proceeds on the basis that the nett profits of the brewery amounted during each of two years ending 31st December 1888 to £3750, or thereabouts upon an average; further, that if this was not the case, that the agreement should be at an end; and that D should have access to all the business books for examination. D had the books examined by accountants, who reported them as showing profits near the specified amount. A year after the conveyance of 31st December it appeared that one of M's clerks had (without M's knowledge) falsified the books with the result of making the profits appear larger than they actually were. The Breweries Company, with concurrence of D, sought to reduce the sale, and offered to return the brewery, maintaining (1) that as between M and D the agreement was based on the amount of the profits; and (2) that D's rights were passed by him to the company. Held (aff. the decision of the First Division) that the pursuers had no title to sue, as (1) D had no interest in the brewery; and (2) the disposition did not embody the stipulation of the contract of 11th November, and therefore the Breweries Company had no right as against M. Edinburgh United Breweries, Limited, and Others v. Molleson and Another, p. 922. See Sale-Reparation - Landlord and Tenant-Insurance. Contract between Proprietor and Manager of Newspaper. See Master and Servant. Contract by Workman not to Recover Compensation at Common Law or under Employers Liability Act. See Master and Servant. Contract of Hire-Lessee Holding Himself out as Owner-Lien-Question which of Two Innocent Parties is to Suffer by Fraud of Third Party. M. J. & Co., calico printers, hired a quantity of copper rollers for use in their business from M. M. J. & Co. had no print works of their own, and, in accordance with a common practice in the trade, employed other printers in the trade to print for them, to whom they sent their cloth with the rollers to be used in printing it. One of the firms so employed by M. J. & Co. was H. & Sons, and in the course of their business M. J. & Co. sent a number of the hired rollers to this firm, to whom they falsely represented that the rollers were their own property. M. J. & Co. having become insolvent, H. & Sons refused to give up the rollers to M., on the ground that they had a lien over them for a balance due them by M. J. & Co. It was admitted that by the custom of the trade printers employed to print for others had a general lien over the cloth and rollers of their customers. Held that M. was entitled to delivery of the rollers, in respect (1) that M. J. & Co. had no authority to subject his rollers to the lien of a third party; (2) that he had done nothing with the intention of misleading H. & Sons into the belief that the rollers were the property of M. J. & Co.; and (3) that in fact H. & Sons had not relied on any representation by M., but solely on the false representations of M. J. & Co. Observed that proof of custom of trade might determine the incidents of a contract or explain its terms between the contracting parties, but that it could not affect the rights and property of others, which fell to be determined by the settled rules of law. Mitchell v. Heys & Sons, p. 485. Contract to Deliver a Quantity of Coal in Equal Conveyance of Acquirenda. See Marriage-Con tract. Conveyance of Property then Belonging or which should Belong to Spouses at Time of Death. See Marriage-Contract. Copyright Infringement - Railway Monthly Time-Table-Interdict. The proprietor of a monthly local railway time-table complained that the proprietors of a rival time-table had published (1) the same tables of trains between the same selected stations, in the same order, and in some instances the same statements of mileage; (2) four pages of information regarding excursions, which, with slight alterations on one page, he had copied literally from the complainer's time-table. Held (1) (aff. the decision of the First Division) that the respondents' train tables were not in all respects a copy of the complainer's work, but represented a certain amount of original labour, and therefore, in view of the nature of the complainer's compilation, there was not such appropriation of his work as to warrant interdict; (2) (rev. the decision of the First Division) that the complainer's guide to excursions was a compilation resulting from a considerable amount of original trouble in collecting and abridging informa tion useful to the locality, and being independent work was protected by the copyright law; and interdict granted against the four pages complained of. Leslie v. Young & Sons, p. 693. Cost of Upkeep. See Valuation Cases. Counter Issue. See Reparation. County Council · Burgh-Assessment - Parliamentary Burgh Liable to be Assessed for County General Assessment-Rogue Money Act 1839 (2 and 3 Vict. c. 65), secs. 1 and 2-County General Assessment Act 1868 (31 and 32 Vict. c. 82), secs. 1, 2, 4, and 10-Local Government (Scotland) Act 1889 (52 and 53 Vict. c. 50), secs. 11, 12, and 27. Held that a county council had power to levy the county general assessment upon lands and heritages within a parliamentary burgh, which was neither a royal burgh nor had a Police Act, nor had taken the benefit of the Act 3 and 4 Will. IV. c. 46, intituled "an Act to enable Burghs in Scotland to establish a general system of Police." Oban Police Commissioners v. County Council of Argyllshire, p. 510. See Reparation-Road. Creditors, Prior. See Cessio Bonorum. Crofter-Succession-Bequest of Holding" Member of Same Family"—Landlord's Objection— Crofters Holdings (Scotland) Act 1886 (49 and 50 Vict. c. 29), sec. 16. The Crofters Act, sec. 16, provides-"A crofter may by will or other testamentary writing bequeath his right to his holding to one person being a member of the same family-that is to say, his wife or any person who, failing nearer heirs, would succeed to him in case of intestacy (hereinafter called the legatee), subject to the following provisions-(a) Intimation of the bequest within twenty-one days to the landlord or his agent. . . (e) Objections to receive by landlord within one month of intimation. (d) If the landlord or his known agent intimates that he objects to receive the legatee as crofter in the holding, the legatee may present a petition to the Sheriff praying for decree, declaring that he is the crofter therein as from the date of the death of the deceased crofter, of which petition due notice shall be given to the landlord, who may enter appearance and state his ground of objection, and if any reasonable ground of objection is established to the satisfaction of the Sheriff, he shall declare the bequest to be null and void, but otherwise he shall decern and declare in terms of the prayer of the petition; (e) the decision of the Sheriff under such petition as aforesaid shall be final," provided always that in the case of any legatee or heir-at-law more distant than wife, son, grandson, daughter, grand-daughter, brother, or son-in-law, it shall be competent to the landlord, on his own part or on the part of neighbouring crofters, to represent that for the purpose of enlarging their holding or holdings the holding ought to be added to them. A deceased crofter left a settlement by which he bequeathed his whole interest in his croft to the son of his mother's sister. Held that the legatee was not a member of the same family as the deceased within the meaning of the Crofters Act, and that he had no claim to succeed to the occupation of the croft under the deceased's settlement. Opinions (per Lord Young and Lord Trayner) as to the competency of appeal from the Sheriff's decision in such a case. Mackenzie v. Cameron, p. 347. Crofter-Heritor-March Fence-Act 1661, c. 41 -Title to Sue. Held that crofters, notwithstanding the Crofters Act of 1886, are not heritors within the meaning of the Act 1661, cap. 41, and have no title to sue an action to have their landlord ordained to unite with them in erecting a march fence between the common pasturage of the crofting township and another part of the estate. Macdonald and Others v. Cameron and Another, p. 751. Cross-examination. See Justiciary Cases. Cruelty. See Husband and Wife. Cruelty without Object no Ground for Divorce for Desertion. See Husband and Wife. Cumulo Rent. See Valuation Cases. Custody of Child. See Husband and WifeParent and Child. Custody of Children-Petition of Brother-Relevancy--Appointment of Curator ad litem to Make further Inquiries. The eldest brother of two twin children, a boy and girl aged twelve, who being unable to support them had left them in a charitable institution, presented a petition to have them restored to his custody, on the ground that they were not being brought up as Roman Catholics as they had hitherto been. He averred that he had made arrangements for having them educated and maintained in a Roman Catholic institution, or was willing to retain them under his own care or under that of a relative, who had signified her desire to have them, but he gave no further information about the institution or the relative referred to. The Court (abs. the Lord President) appointed a curator ad litem to inquire into all the facts of the case, and to report-diss. Lord M'Laren, who thought the petition should be dismissed as irrelevant. Morrison v. Quarrier, p. 718. Petition of Brother-Religion of Deceased Father. A boy and girl--twins-aged twelve, whose father and mother were dead, were placed by their brother, a Roman Catholic, in an institution where the religious instruction was Protestant. He subsequently presented a petition to have them restored to his custody in order that they might be brought up as Roman Catholics, that having been, as he alleged, the religion of their father. The Court appointed a curator ad litem to the children, who, after making full inquiries, reported that the children were being well cared for, that they seemed very happy, and that they wished to remain where they were. Upon the question of religion. the report stated that the children were baptised as Roman Catholics, but not until they were nine years of age, that from 188893 they attended irregularly Board Schools and irregularly Roman Catholic Schools in 1891-92, that the father, who died in October 1893, although nominally a Roman Catholic, had never taken them to a Roman Catholic Church, but pretty frequently to a Congregational place of worship, and that to the parochial authorities he had sometimes represented himself as a Roman Catholic, and sometimes-as late as May 1893-as a Protestant. The Court refused the petition. Morrison v. Quarrier, p. 844. Custom. See Agent. Custom of Trade. See Contract. Custom Regulating Business Relationship between Two Solicitors in England not Applicable between One Solicitor in Scotland and One in England. See Agent. Damages. See Sale-Landlord and Tenant-Reparation. Damages, Measure of. See Contract. Damage to Property. See Title to Sue-Reparation. Damnum fatale. See Reparation. Declaration as to Period of Vesting. See Trust. Declared Value. See Marine Insurance. Deductions. See Valuation Cuses. Deductions of Stones and Dirt. See Justiciary Default of Payment. See Insurance. Delay in Delivery from Insufficient Address. Sale. See Discretion of Court. See Process. See Succes Discretion of Judge. See Justiciary Cases. Disentail. See Entail. Disposition. See Property. Disposition ex facie Absolute. See Right in Security. Dispute between Member and Society. See Provident Society. Dispute whether Person entitled to Rights of Member. See Provident Society. Division of Surplus in Liquidator's Hands. See Divorce. See Husband and Wife. Duties and Liabilities of Curator ad litem. See Duty of Commissioners in Fixing the Price of Gas. See Burgh. Duty of Timeous Inspection by Purchaser. See Sale. Effect of Assignation of Trade Fixtures by Tenant to Landiord. See Landlord and Tenant. Effect of Discharge in Bankruptcy of Person to whom Advance had been made. See Trust. Effect of Wife's Repudiation of Testamentary Provisions by Husband. See Succession. Election Law-Joint Occupancy Franchise-Representation of the People (Scotland) Act 1868 (31 and 32 Vict. c. 48), sec. 14-Reform Act 1884 (48 and 49 Vict. c. 3), secs. 5 and 12. It was provided by section 14 of the Representation of the People Act 1868 that each joint-tenant of lands and heritages occupied jointly should be entitled to be enrolled as a voter, "provided the annual value of the said lands . . . shall be sufficient, when divided by the number of such joint-tenants and joint-occupants, to give to each of them a sum ot not less than fourteen pounds, but not otherwise. Held that the qualifying value there laid down for joint-tenants in counties had not been altered by the Reform Act of 1884. Wainwrights v. Aiken, p. 126. Notice of Objection-Signature of Objector Impressed by "Cyclostyle"-Registration of Voters Act (19 and 20 Vict. c. 58), sec. 4. An objector affixed his name to the notice of objection with his own hand by means of a "cyclostyle," which reproduced his ordinary signature. Held that the notice was "signed by the person objecting" within the 4th section of the 19 and 20 Vict. c. 58. Whyte v. Watt, p. 127. Emolument. See Revenue. Employment of Law Agent by Curator for Benefit of Minors. See Agent and Client. Entail-Disentail-Value of Next Heir's Expectancy-Proper Security-Duties and Liabilities of Curator ad litem-Entail (Scotland) Act |