1882 (45 and 46 Vict. c. 53), sec. 12. By section 12 of the Entail (Scotland) Act 1882, it is, inter alia, enacted that no curator ad litem who may give any consent under this Act shall incur any responsibility on account of such consent in respect of any alleged error in judgment or inadequacy of consideration, or want of consideration therefor, unless it shall be alleged and proved that he acted corruptly in the matter." An heir of entail presented a petition for disentail of the estate. The Court appointed a curator ad litem to the heir-apparent, who was a minor. By minute of agreement with the heir of entail the curator ad litem agreed to consent to the disentail, in exchange for a bond for £16,000 granted to his ward over the estate to be disentailed, postponed to bonds for certain debts mentioned in the agreement. Thereafter the estates were sold, and the price left no balance to pay the £16,000. On the heirapparent reaching majority he brought an action against his former curator ad litem for the £16,000 and interest, averring (1) that the security accepted by the defender as the value of his consent was improper and inadequate; (2) that the security accepted was postponed to debts which were not mentioned in the minute of agreement, and that therefore the curator ad litem had failed to get the security for which he stipulated in the minute of agreement. Held that the action was irrelevant-diss. Lord Rutherfurd Clark, who was of opinion that there ought to be inquiry as to the second of the pursuer's averments, because if the defender gave his consent without getting the consieration for which he bargained, that was a failure of duty on his part from which the statute did not protect him. Maxwell Heron v. Dunlop, p. 193. " Entail-Aberdeen Act 1824 (5 Geo. IV. c. 87)— Provision to Widow-Increase After Granter's Death. The Aberdeen Act 1824 (5 Geo. IV. c. 87), sec. 1, provides-"That an heir of entail in possession may provide for his wife out of the entailed lands a liferent annuity not exceeding one-third of the rent or value of the lands after deducting all other burdens, 'all as the same may happen to be at the death of the granter.' Sec. 3-" If two such liferents subsist on lands at one time, a third may not be granted to take effect till one of the former shall cease, but the heir may increase a former or grant a new liferent to become due upon the expiry of the subsisting liferents although the same may not take place in his lifetime. An heir of entail in possession provided a liferent annuity of £1800 to his wife "subject to all the conditions and limitations" contained in the Act 5 Geo. IV. c. 87, so far as applicable. After his death it was ascertained, in a petition at the instance of his successor, that the proper amount of his widow's annuity was £980. On the death of a former liferentrix, and the lapse of her annuity the widow sought declarator that she was entitled to payment of the full amount of the annuity of £1800, or at least one-third of the free rental of the estate. Held that although the general rule by the first section of the statute limited an annuity to one-third of the free rental as at the date of the granter's death, the 3rd section provided by exception that a diminution of the said free rental by a previous widow's annuity should not count against a succeeding annuity, which is to begin to run, or to be increased on the termination of the first, and accordingly that the pursuer was entitled to declarator sued for. Morison v. Morison, p. 423. Exclusion of Assignees except with Consent of the Landlord. See Landlord and Tenant. Exclusion of Jus mariti. See Husband and Wife. Execution pending Appeal to House of Lords. See Husband and Wife. Executor--Property--Goodwill of Going Business --Act 9 Geo. IV. c. 28. A wine and spirit merchant having died intestate on 7th December 1891, his widow continued the business in her husband's name, using for that purpose the existing stock, shop fittings, &c. On 16th February 1892 she obtained a transfer of the licence to her own name, the magistrates preferring her application to that of the executor-dative qua nextof-kin of her husband. From that time the business was carried on in her name by her till her death, and thereafter by her executor until the expiry of the licence in May 1892. Her executor then sold the business, goodwill, stock, and fittings for £1500, of which he paid £250 to the heir-at-law in satisfaction of all his claims. The husband's executor sued the widow's executor for an account of all intromissions with the estate had by (1) the widow, and (2) the defender. Held by a majority (1) that the profits of the business between the death of the husband and the transfer of the licence belonged to the pursuer; beyond that date that the profits belonged to the widow and her executor; (2) that the defender was entitled to the price of the goodwill-diss. Lord Trayner and the Lord Justice-Clerk, who were of opinion (1) that the profits derived from the business during the existence of the licence were due to the pursuer as derived solely from the husband's estate; (2) that so far as the goodwill attached to the premises, the heir-at-law had received it; the remainder attached to the business, and the pursuer was entitled to the price of the business including the goodwill. Philp v. Martin, p. 384. Exemption. See Revenue. Exercise of Power. See Succession. Exercise of Power Partially ultra vires. See Succession. Expenses-Fees to Counsel-Jury Trial--Discretion of Auditor. In an account of expenses of a jury trial for damages for personal injury which lasted one day at the sittings, the Auditor reduced the fee of senior counsel from £21 to £13, 13s., and of junior counsel from £15, 15s. to £8, 8s. Objections were lodged, on the ground that the Auditor had reduced counsel's fee below the sums which had been fixed to be the proper fees by decisions of the Court. The Court refused to interfere with the Auditor's discretion. Blair v. The Caledonian Railway Company, p. 35. Bankruptcy. When the trustee in a mercantile sequestration engages in litigation, he is personally liable in costs to the opposite party. Cowie v. Muirden, p. 275. See Process Justiciary Cases-Parent and Child. Facility and Circumvention. See Fraud. Factory-Fencing of Machinery-Mill Gearing -Master and Servant-Factory and Workshop Act 1878 (41 Vict. cap. 16), sec. 5, sub-sec. 3, and sec. 96. A "jolly machine" in a pottery manufactory was moved by its drum being brought in contact with a revolving plate round which a strap was placed connected with the machinery of the work. Held that the revolving plate was part of the mill gearing as defined by section 96 of the Factory and Workshop Act 1878, and required to be securely fenced in terms of section 5, sub-section 3. Observations by the Lord Justice-Clerk upon the kind of danger which the Legislature intended to provide against by requiring the fencing of machinery. Pringle v. Grosvenor, p. 420. Factor loco-tutoris. See Tutor. Factor Sued in Sheriff Court. See Property. Fault of Fellow Workman. See Reparation. Fee in Beneficiaries. See Succession. Fees to Counsel. See Expenses. Fellow Workman. See Reparation. Feu. See Property. Findings in Fact. See Process. Fishings not ex adverso of Lands. See Salmon Fishings. Foreign. See Jurisdiction. Forgery. See Justiciary Cases. Forgery not Charged, not Provable as Incidental to Charge of Murder. See Justiciary Cases. Form of Issue. See Reparation. Form of Procedure. See Company. Free Rental of Lands to form Part of Annuity, "Fully Paid-up" Shares. See Company. Gable. See Property. Gas Rates. See Burgh. Gates. See Road. General Disposition. Succession. See See Personal or Real- General Disposition and Settlement. See Suc cession. Goodwill of Business. See Trust. Goodwill of Going Business. See Executor. Hearsay. See Evidence. Hearsay of a Fugitive who could not be Found, Incompetent Evidence. See Justiciary Cases. Height of New Buildings Erected in Existing Street. See Burgh. Heir and Executor. See Landlord and Tenant. Heritable Creditor-Right in Security-Maills and Duties-Liability of Heritable Creditor Entering into Possession of House for Safe Upkeep of Pavement. Held (diss. Lord Young, and dub. Lord Trayner) that the liabilities of a proprietor of a house for the safe upkeep of the pavement in front of the house, and forming part of the property, were incumbent on a bondholder who had obtained a decree of maills and duties, and entered into possession of the house to the exclusion of the proprietor. Baillie v. Hutton, p. 390. House. See Property. Husband and Wife-Parent and Child-Divorce - Marriage-Contract Provisions -- Casus improvisus-Vesting. In their marriage-contract a husband and wife each conveyed certain funds to trustees, and provided that during their joint lives the annual proceeds should be paid to the husband for the maintenance of the family, and that on the dissolution of the marriage by the death of either spouse the trustees were to pay the annual proceeds of the whole trust funds to the surviving spouse, and after the death of such survivor the principal to the children of the marriage, equally among them. The marriage-contract further provided that on the dissolution of the marriage by the death of either of the spouses without issue, or leaving issue who should predecease the surviving spouse, the trustees should pay such survivor his or her own contribution to the marriage-contract funds, and on his or her death pay the fee of the deceased spouse's funds to his or her heirs and assignees. A child was born of the marriage. Six years after the marriage the wife obtained decree of divorce against the husband. Thereafter the wife died, survived by her former husband and the child of the marriage. From the date of the divorce till the wife's death the trustees paid the annual proceeds of the marriage-contract funds to the wife. Held (1) that the divorced husband was entitled to the liferent of the funds which he had contributed to the marriage trust; (2) that he had no interest in the funds contributed by the wife to the marriage-trust, but that the income of these funds during the divorced husvivance had been undisposed of by the marriage-contract, and fell to be paid to the heirs and assignees of the wife; and (3) that no right with respect to the capital of the marriage-contract funds had vested in the issue of the marriage--diss. Lord Young to findings (2) and (3), he holding that on the death of the wife the child of the marriage became entitled to the capital of the share contributed by the wife to the marriage trust. Webster v. Harvey, p. 13. Condonation by Husband of Adultery by WifeProof of Condonation Cohabitation. Opinion (per Lord Stormonth Darling) that condonation by a husband of his wife's adultery could not be inferred from any act short of cohabitation. Hunt v. Hunt, p. 244. Divorce - Desertion Cruelty without Object no Ground for Divorce for DesertionAct 1573, c. 55-Conjugal Rights Act 1861 (24 and 25 Vict. c. 86). In an action of divorce for desertion brought by a wife against her husband, evidence on which held (Lord Young expressing no opinion, and diss. Lord Trayner) that the parties had been living apart with consent of the pursuer, and that therefore she was not entitled to decree. Opinion (per Lord Rutherfurd Clark, concurred in by Lord President and Lord Kinnear) that cruelty or threats of cruelty by a husband to a wife, which rendered the husband's house intolerable to the wife and led to a separation between the parties, but which were the outcome of the husband's intemperate habits, and were not used by him with the intention of producing and maintaining a separation, were not equivalent to a desertion of the wife by the husband, even although the wife was willing to return if the husband promised to amend his mode of life. Opinion (per Lord Trayner) that a deserted spouse is not bound to do anything to bring the desertion to an end in order to entitle her to decree of divorce for desertion. Gibson v. Gibson, p. 409. Husband and Wife-Antenuptial Marriage-Contract-Trust Exclusion of Jus mariti. By antenuptial marriage-contract a wife conveyed certain funds to which she was entitled under her father's settlement to trustees, for the following purposes, inter alia--That during the joint lives of the said intended spouses the clear revenue of £5000 of the trust funds was to be paid to herself, exclusive of the jus mariti and right of administration of her husband, and that "the clear revenue of the remainder" of the trust funds was to be held for the joint behoof of the spouses, and paid to them on their joint receipt. The husband renounced his jus mariti and right of administration as to the capital of the funds conveyed by the wife and the revenue of the £5000 above mentioned, but there was no express exclusion or renunciation of the jus mariti as regarded the revenue of the remainder. The husband having been sequestrated a competition arose between the marriage-contract trustees, the trustee in the husband's sequestration, and the wife. Held that "the revenue of the remainder" did not fall under the husband's jus mariti, and that the marriage-contract trustees were bound to pay one-half thereof to the wife, and the other half to the husband's trustee so long as the sequestration should continue, and to the husband himself thereafter. Wood and Others (Bruce's Marriage - Contract Trustees) v. Wylie Guild (Bruce's Trustee) and Others), p. 462. Custody of Children-Execution Pending Appeal to House of Lords-Warrant to Messengers-at-Arms to Take Children into Custody. A wife having presented an appeal to the House of Lords against an interlocutor ordering her to deliver up the children of the marriage whom she had surreptitiously removed from their father's house, the husband presented a petition craving the Court "to allow execution to proceed notwithstanding the appeal," and also "to grant warrant to messengers-at-arms to take into their custody the persons of the said children." Held that execution should be allowed to proceed, but that the latter part of the prayer of the petition was inappropriate, the wife not being in contempt of Court. Stevenson v. Stevenson, p. 500. Husband and Wife--Divorce--Desertion--Cruelty-Intention to Resume Cohabitation. In 1875 a husband who had previously treated his wife with great cruelty allowed the furniture of the house in which they were living to be sold, and neglected his duty of maintenance to such a degree that his wife and children had to be relieved by the parochial authorities. The wife then took up house for herself, and maintained herself and two young children by her own industry. In the early part of 1876 her husband appeared at her house and turned her out of doors. She took refuge with relatives in the same town, and her husband took no means of communicating with her, and refused to allow the children to speak to her. About a year afterwards he left the town. The wife went out as a domestic servant, and took no steps to trace her husband and children. In 1893 the husband was discovered living in England. The wife then brought an action for divorce against him on the ground of desertion. The husband did not lodge defences. Held (rev. judgment of Lord Stormonth Darling) that the husband had acted as he did with the intention and purpose of putting an end to conjugal cohabitation with his wife, and decree of divorce granted. Gibson v. Gibson, February 1, 1894, 31 S.L.R. 409, distinguished. Murray v. Murray, p. 576. Aliment-Claim of Widow for Aliment out of Estate of Hushand. A died intestate leaving a widow who was insane, but no children. He left personal estate which, after payment of debts and expenses, amounted to about £200. Held that the widow was only entitled to the moiety of the estate which fell to her as jus relicte, and that A's executor was not bound to retain the other half of the estate, which fell to the next-ofkin, in order to provide for prospective claims of aliment to the widow. Howard's Execu tor v. Howard's Curator Bonis and Others p. 661. Separation-Parent and Child-Aliment of Child in Wife's Custody. After a wife had raised an action of separation and aliment against her husband, an arrangement was concluded, in accordance with which the husband made over £1100 to trustees for behoof of the wife in liferent, and the wife in respect of this provision agreed to abandon the action. About two and a-half months after the date of the trust-disposition, the wife, who was living separate from her husband, bore a child, and when this child was between one and two years old an action was raised in its name against the husband for payment of aliment. It was averred that the husband was possessed of between £2000 and £3000. Held that the claim was in substance a claim for additional aliment by the wife; that the parties must have had the birth of the child in contemplation when the trust-disposition was granted for the wife's behoof, and had therefore settled for themselves what sum was to be allowed for the aliment of the wife and child, and that no sufficient reason had been shown for interfering with the arrangement they had made. Observations by Lords Adam and M'Laren as to what proportion of the husband's means should be applied to the wife's aliment in cases of separation. Scott e. Scott, p. 714. Husband and Wife--Marriage-Contract--Annuity to Wife during Husband's Lifetime for Maintenance of his Establishment-Trust. By antenuptial contract of marriage an annuity of £1000 was provided for the wife by the husband, "to be applied by her towards the expenses of my household and establishment, and that during all the days of my life," he renouncing his jus mariti and right of administration of and in relation to his wife's estate and effects, including said annuity. Held that the wife was truly a trustee for her husband, and was not entitled to rank as one of his creditors. Eliott v. Purdom, p. 801. See Bankruptcy-Process - Parent and Child--Succession-Trust. Illegal Administration. See Incorporation. Imbecile Pauper Child confined in Charitable Implied Authority to Resign in Trust-Disposition. Implied Entry. See Superior and l'assal. Implied Revocation by Subsequent Birth of a Improper Filling. See Justiciary Cases. Imputation of Inciting to Bloodshed and ViolSee Reparation. ence. Income. See Church. Income-Tax. See Revenue. Incorporation-Trust-Illegal Administration--Attempt to Exclude New Members-Reduction of Minutes. Members of an incorporation benevolent scheme fund are trustees for themselves and for future members, and are not entitled to administer the scheme in such a way as to secure to themselves the benefits of the trust to the exclusion of others of the class for whose benefit the scheme was instituted. Rules for regulating a Benevolent Scheme Fund in connection with the Incorporation of Tailors of Ayr were framed in 1805. By these the age for admission was fixed at 40, and it was enacted that "should it be necessary for the advancement of the fund to alter any of the articles," such alteration should be under discussion for three months. After 1846, as a consequence of the passing of the Act which took away the exclusive right of trading from corporations in burghs, applications for admission almost ceased. In 1860 the members, being then only five, in furtherance of a scheme for securing to themselves the whole benefit of the scheme, and for excluding new members, by minute, duly confirmed after three months, reduced the age limit to 30. No new members were admitted between 1855 and 1891, when S., M., and L., all under 30, were admitted after litigation. While their right to admission was under dispute, the only remaining members, two in number, at a meeting in June 1891, suspended the standing orders of 1805, forthwith fixed the age limit once more at 40, and thereafter admitted W., F., and C. as members although all over 30 years of age. An action was brought by S., M., and L. to have the minutes extending the age and admitting W., F., and C. reduced, and these three persons declared not to be members; while W., F., and C. brought an action to have themselves declared duly admitted, and if necessary to have the minutes of 1860 reduced. After a proof the Lord Ordinary (Kyllachy) refused to reduce the minutes extending the age limit and admitting W., F., and C., held that they were duly admitted, and that the minutes of 1860, supposing them not to have been formally abrogated by the minute of June 1891, might be disregarded as having been passed in pursuance of an illegal scheme, and did not require to be reduced. The First Division adhered, but by their decree reduced the ilegal minutes of 1860. Sadler and Others v. The Incorporation of Tailors of Ayr; and Webster and Others v. The Incorporation of Tailors of Ayr, p. 89. Increase after Granter's Death. See Entail. Infringement. See Copyright-Patent. Inhabited House-Duty. See Revenue. Injury to Buildings. See Reparation. Innuendo. See Reparation. Insurance-Insurance of Deposit with a BankDefault of Payment-Reconstruction of the Bank. An insurance company undertook to repay a depositor a sum deposited for a definite period with a bank "after default has been made in payment by the bank." Before the period for payment by the bank had arrived, it had stopped, and when that period arrived the depositor, being unable to get his money, claimed it from the insurance company, who declined to pay, on the ground that default had not been made as the bank was in course of being reconstructed. Held that default had been made, and that the depositor was entitled to decree against the company for the sum claimed. Young v. The Trustee, Assets, and Investment Insurance Company, Limited, p. 199. Policy Post-mortem Examination Condition-Precedent. A policy of insurance provided that if the insured sustained personal injury caused by accidental, external, and visible means, and the direct effect of such injury should occasion his death, the insurers would pay to the legal personal representatives a certain sum, subject to pro visions which were agreed to be conditionsprecedent to the right to recover, including the following "(5) In case of death the legal representatives of the deceased must deliver to the company a certificate from the medical attendant of the assured stating . . . the nature of the injuries and the cause of death, and shall produce all documents necessary to prove their title, . . . and shall furnish all such other information and evidence as the directors may require from time to time or may consider necessary or proper to elucidate the case." The insured lost his life while fishing in a river, and on intimation of a claim by his mother, who was his legal personal representative, the medical adviser of the insurers, on certain information, applied for a post-mortem examination to the family physician, who on his own authority refused the request. The insurers made a second demand on a firm of law-agents, who were not at that time acting for the mother, and who had no power to grant the request. The insurers refused to pay on the policy, on the ground that in view of the 5th condition of the policy the refusal of a postmortem examination was a breach of a condition-precedent to recovery. In an action by the mother of the insured-held it was proved that the deceased died by accidental drowning, and even assuming the defenders' construction of the 5th condition to be correct, they could not found upon it, because. demand for a post-mortem examination had not been made upon the deceased's legal representatives. Opinion (per Lord Young) that the company could not plead the refusal of a post-mortem examination as the breach of a condition-precedent if it appeared from the whole evidence that the insured died from accident. Ballantine v. The Employers Insurance Company of Great Britain, Limited, p. 230. Insurance--Contract--Condition-Precedent--Nextof-Kin. The proprietors of a newspaper advertised that £100 would be paid by a certain insurance company to the person whom the proprietors decided to be the next-of-kin of anyone killed in a railway accident, who was proved to have been a constant subscriber to the paper. A subscriber having been killed in a railway accident, the proprietors decided to pay, and paid, the insurance money to his widow, but his children by a former marriage challenged the payment as illegal and wrongful, and sued the proprietors for payment to them as the true next-of-kin. Held that the statements of the pursuers were irrelevant, as they were unable to produce the decision of the defenders that they were the next-of-kin of the deceased, which was a condition-precedent to recovery. Law and Others v. George Newnes, Limited, p. 888. Insurance, Marine-Mutual Insurance—Conditions in Policy-Articles of Association Imported into Policy — Whether Addition to Articles not Regularly Passed by Company |