« 이전계속 »
brought the present multiplepoinding and exoneration in reference to said interest.
The Lord Ordinary (Jerviswoode) preferred Robert Hill's representatives, holding the bequest to him as remuneratory for the outlay he was to incur, in paying the truster's debts in the meantime. The other parties reclaimed, but the Court to-day adhered. Their lordships were of opinion that this was not undisposed of residue, or residue properly speaking at all. The bequest had vested by Robert Hill's survivance, and his representatives were entitled to it.
Wilson v. MERRY AND CUNNINGIIAM.—Nov. 9. Motion for new trial-Verdict set aside as contrary to evidence. This case was discussed to-day on a motion for a new trial, on the ground of the verdict having been contrary to evidence; and on a bill of exceptions. It was an action of damages raised by the mother of the late Henry Wilson, miner, who had been accidentally killed while at work in the employment of the defenders, Messrs. Merry & Cunningham, coal and iron masters, Glasgow. The case had been tried before Lord Ormidale and a jury on the 5th and 6th days of April 1866, under the following issue :
It being admitted that the defenders are proprietors of the Haughhead Pit, near Hamilton, in the county of Lanark, whether, on or about the 25th day of November 1863, the deceased Henry Wilson, miner, Haughhead, the son of the pursuer, while engaged in the employment of the defenders, as a miner in said pit, was killed by an explosion of fire-damp, through the fault of the defenders, to the loss, injury, and damage of the pursuer ?
Damages laid at £400.
At advising the Court granted a new trial, holding that the verdict was contrary to evidence—especially to certain circumstances of real evidence which had been satisfactorily proved at the trial.
The Lord President said—I cannot say I am prepared to differ from the opinion at which your lordships have arrived. On the contrary, the reasons given for granting a new trial weigh very strongly with me. The case at tempted to be made out for the pursuer is that there was no opening at the rise side of the scaffold at all. This may mean cither that there was no opening in the scaffold, or that there was no opening at the ends. But assuming that it is mcant there was no opening at the side of the scaffolding, then we have the pursuer's witnesses saying there was no opening; and we have the defender's witnesses saying there were openings." But, if the pursuer's witnesses be right, the construction of the scaffolding, if done purposely, was most absurd. Then, was it accidental? Two of the pursuer's witnesses called the attention of the defender's manager to the fact that there was no arrangement for ventilation by reason of the way in which the scaffold had been constructed, and he replied that it would do quite well. If the pursuer meant that the attention of the defender's manager was called to the fact that there was no hole in the scaffold, and received for answer that it would do quite well, the nieaning of the defender's manager being that the holes at the sides of the scaffold were sufficient for the purpose, this would be quite intelligible. As to the size of the hole, either there is some mistake in the notes or in the arithmetic of the witnesses. Williamson, a
scientific witness, is made to say that “4 feet by 6 would be about 20 feet of superficies of hole." How he makes 4 multiplied by 6 to be equal to 20 it is difficult to understand. Another scientific gentleman (John Neish) is made to say :-“One of the openings is 4 feet long, and from 9 to 5 inches in breadth. Other hole 6 fcet in length and from 8 to 5 inches in breadth. These two holes 5 feet square of superficial area.” But these holes would not make 5 feet square, but 5 square feet. Fire feet square would be equal to 25 square feet. This is a very material point if we come to the question of a quantum. But I agree with your lordships that the case attempted on the part of the pursuer has not been made out.
With regard to the exceptions, as these arose on the special facts of the case, and do not involve any abstract question of law, it is unnecessary to consider them. Directions must arise on the special facts of the case. At a new trial it may be proved that the fault was other than that of Neish, or a different fault altogether from that which has been attempted to be made out.
Verdict set aside as contrary to evidence, reserving all questions of expenscs.
BROWN V. BROWNLEE.-- Nov. 13.
Action of Damages-Relerancy. This was an action of damages raised by James Brown, baker, East Calder, against George Brosulee, auctioneer, Mid-calder. The pursuer claimed £300 as damages from the defender for having wrongfully poinded certain turnips, potatoes, and corn belonging to him for a debt due by his fa her. The allegations of the pursuer were that he had bought these articles on 220 September 1865 from his father, according to inventory, and had paid for them at various times; that, nevertheless, the defender on 23 September 1865 attempted to poind, and ultimately did poind, these articles which the pursuer had not had time to remove; that thereafter a warrant of sale was obtained from the Sheriff, and the pursuer thereupon brought a suspension, in which the note was passed and interim interdict granted on caution.
The pursuer founded on the Mercantile Law Amendment Act, 19 and 20 Vict. cap. 60, sec. I, which provides that, when goods are sold and not delivered to the purchaser, but allowed to remain in the custody of the seller, “ it shall not be competent for any cre litor of such seller, after the date of such sale, to attach such goods as belonging to the seller by any process of law," to the effect of preventing the purchaser from enforcing delivery of the same.
The Lord Ordinary (Barcaple) reported the case on issues, and the Court, to-day, dismissed the action, in respect there was no averment that the seller was ever asked to deliver or prevented from delivering, and that the steps taken to prevent the sale were, so far as they went, competently taken.
Hewat v, FOULDS.—Nov. 14.
Bankruptcy Act § 104—Petition under. In this case Mr Hewat petitioned the Lord Ordinary on the Bills, in terms of the 101th section of the Bankruptcy Act, to have certain funds
VOL. X. NO. CXX.- DECEMBER 1866.
Issues, 4, 29, 32, 56, 72, 201, 222
Reddendo, 62 Issues, failure to lodge, 153
Reduction, 149, 160, 164, 175
Reference to Oath, v. Oath, Joint-Stock Company, 87, 103, 149, 185, 224 Registration cases, 23 Judicial Examination, 113
“Relations," Legacy to, 13 Jurisdiction, 78, 105, 116, 165, 203
Relevancy, 126, 129, 135, 175, 180, 195, 221, Jury, Special, 174, 176
223 Jury Trial, 15, 149, 158, 177
Relief, 16, 96 Jury Trial, new trial, 16, 99, 159, 164, 167, Removing, Summary, 35 218, 220
Reparation, 19, 29, 40, 77, 83, 87, 105, 108 Jus Relicta, 193
125, 127, 159, 177, 180, 183, 185, 193, 221,
223, Landlord and Tenant, v. Lease,
Res Judicata, 23, 88, 157, 159, 160 Lands Clauses Act, 155
Revenue, 70, 95, 120, 197, 198 Lease, 87. 110, 149, 166
Review, 151, 165, 200 Legacy, 13, 73, 115
Right of Way, 11, 133, 201 Legitim, 128
River, Upper and Lower Heritor, 38, 190 Lien, 103
Road Trustees and Road Surveyor, 19, 90, 105 Liferent, 74
Sale, 94, 108, 109, 163 Locus Poenitentiæ, 166
Salmon Fishing, 23, 152 Lunatic, 136, 181
Separation and Aliment, 151 Malice, 29
Sequestration, 17, 18, 42, 81, 179, 221, . Mandatory, 97
Bankruptcy March v. Boundary,
Sequestration, Competing Petitions, 3 Markets, Inspector of, 22
Sequestration, Declaring at End, 113 Marriage Contract, 36,58, 217, v. Construction Sequestration, Discharge of Deceased TrusMarriage, Nullity of, 19
tee, 149 Master and Apprentice, 97
Sequestration, Affidavit in, 18
Sheriff, 15, 20, 78, 92, 164, 197, 200 Mineral Workings, Damages to houses by, Shipping, 77, 193, 223 105
Slander, 125, 164 Miscropping, Pactional Rent for, 166 Small Debt Summons, 135 Mora, 85
Society, Citation of Unincorporated, 135
Stamp, 34, 198 Night Poaching, 135
STATUTE-9 Geo. IV. c. 29, 20
1 and 2, W. IV. c. 43 (General Oath, reference to, 30, 35, 85, 87, 114
Turnpike), 19, 20 Oysters, 199
3 and 4, Vict. c. 74 (Oyster Fish
ings), 199 Parish, Assessment for Church, 13
7 Vict. c. 15 (Factory Acts), 34 Parish, Disjunction and Erection, 110, 181
7 and 8, Vict. c. 44 (Erection of Partnership, 16, 87, 97, 171, 173, 185.
Parishes), 131 Patent, 72, 129
8 Vict. c. 17 (Company's Clauses) Penalty, 20
8 Personal Bar, 91
8 Vict. C. 19 (Lands Clauses) Poinding, 169
155 Police, 182, v. Edinburgh, Statute,
8 and 9, Vict. c. 83 (Poor Law Police Assessment, 84
Amendment), 20, 39, 74, 85, Poor, 39, 88, 107, 116, 184
173, 181 Poor, Application to Sheriff for additional
11 and 12, Vict. c. 107 (Contarelief, 173
gious Diseases, Sheep), 201 Poor, Settlement, 55, 181, 187
16 and 17 Vict. c. 80 (Sheriff Poor, Able-bodied, 74
Court), 15, 20 Poor, Notice of chargeability, 85
17 and 18 Vict. c. 31 (Railway and Power, 91
Canal Traffic), 2, 162 Privilege, 29
17 and 18 Vict. c. 91 (Lands Probable cause, 29
Valuation), 13, 116 Process, 71, 97, 167, 178, 197
17 and 18 Vict. c. 104 (Merchant Procurator-Fiscal, 29
Shipping), 77 Promissory Note, 34
19 and 20, Vict. c. 79 (BankProof, 23, 30, 33, 73, 85, 121, 125, 135, 138,
ruptcy), 3, 6, 17, 18, 165, 221 156, 159
20 and 21 Vict. c. 71(Lunacy), 181 Property, 31, 92, 168, 190
20 and 21 Vict. c. 72 (General Public Houses Act, 165
24 and 25 Vict. c. 86 (Conjugal Railway, 8, 21, 39, 60, 116, 162, 195
Rights), 60 Railway and Canal Traffic Act, 2, 162
24 and 25 Vict. c. 107 (SchoolRape, 135, 138
to be due by him upon his intromissions as trustee under a disposition omnium bonorum, granted by the late Robert Dick in the suspender's favour. In the summons, Dick designed himself as “eldest son and nearest and lawful heir of the deceased Robert Dick," and also “as executor, or otherwise representing him," but he produced no title to act in either capacity. In that action, he obtained in absence a decree for £250, and, having charged Malcolm to make payment, the present suspension was brought. The Court gave effect to the contention of the suspender, that the decree ought to be suspended in respect that it was obtained in an action which the respondent had not at the time produced any title to pursue. The fact that he had in the suspension produced a decree dative in his favour did not obviate the objection.
The North WESTERN BANK (LIMITED) v. BJORNSTROM and
BERGBORNS—Nov. 9. Ship-Shipmaster-Bill-Linbility of Owners. This was an action for the amount of a bill for £800, and was brought under the following circumstances :-In 1863, the ship Tahti was chartered by Ogle & Co., of London, for a voyage to Calcutta and back. The charterparty contained this stipulation—" sufficient cash at current exchange, not exceeding £1000, to be advanced on account of freight for ship's disbursements at Calcutta.” At Calcutta, John Ogle & Co., agents for the charterers, advanced £800 to the master, Bjornstrom, and took therefor his bill at three months, drawn on Ogle & Co., of London, the charterers. This bill, which came eventually by indorsations into the hands of the pursuers, though accepted by Ogle & Co., remained unpaid, owing to that firm's failure, and the present action was accordingly brought against the owners of the ship, the Messrs Bergborn, and also against the master.
The Lord Ordinary (Kinloch) assoilzied the master on the ground of no jurisdiction, he being a foreigner-and the owners, on the ground that the master bad no right to draw such a bill. The pursuers reclaimed in so far the judgment affected the owners. The Court unanimously adhered. The defenders were not parties to the bill, and therefore could not be made responsible in this action as debtors in a proper bill debt, but the pursuers had no other position than that of ordinary indorsees, it was an entire mistake to suppose that by the indorsation they acquired an assignation to the disbursement-debt, said to be owing to the Calcutta house; but further, there was no relevant case, for as it was quite clear that the money was advanced by the charterer's agents in terms of the charterparty and in return for the cargo delivered, it was absurd to say that they were not bound to make this advance, and neither they nor their assignees, assuming them to be assignees, had any claim against the owners of the vessel.
the HERITORS OF PETTINAIN.
Reparation-Culpa—Relevancy. The widow and children of the parish schoolmaster of Pettinain sued the defenders for damages, on the ground that, by reason of their culpable conduct in failing to provide a schoolhouse fit for human habitation, Mr Birrel had contracted a severe illness, which resulted in his death. The
Court dismissed the action on the grounds-(1.) That Mr Birrel's proper remedy was not to stay in the house, if uninhabitable, but to go elsewhere, and then bring his action against the heritors for the expense; and (2.) That the allegations of culpa against the defenders were insufficient. They amounted to breach of obligation, but not to culpa in the sense that by their neglect of duty they caused his death.
BROOMFIELD'S CURATOR v. LUMSDEN, Nov. 16.
Partnership-Liability of Curator Bonis. On the death of her husband in 1856, a curator bonis was appointed by the Court to Mrs Broomfield, who was and is a lunatic. The principal part of her late husba id's estate, who died intestate, consisted of shares in the Western Bank of Scotland, and the curator agreed with the executors to accept such number of these shares as were equivalent to the amount to which his ward was entitled in cash. These shares were accordingly transferred to him as curator bonis, he signed the transfer as such, and in that capacity he appeared in the bank's books and in the register of shareholders. The bank having failed, and calls amountinz in all to £125 per share having been made on the curator as a partner of the bank, he pleaded that he was not personally liable, and could only be required to pay the sums charged for out of the funds belonging to his ward. Lord Kinloch, on the authority of Lumsden v. Buchanan, as decided in the House of Lords in 1865, repelled this piea. The curator reclaimed, and the Court to-day adhered. The opinion of the Court was delivered by
The Lord Justice-Cierk, who said — The defender was in February 1856 appointed curator bonis to Mrs Jane Fairbairn or Broomfield. Since that time he has continued in the exclusive management of her property. That property consisted in 1856 of one-third part of her late husband's estate. What the curator was then entitled to was payment in cash of that third from the husband's executor, whose duty it was to realise the estate so as to enable him to make such payment. What the curator actually did was this : he entered into an arrangement with the executor whereby he consented to take over seven shares of Western Bank stock. Whether or not this was a proper act of curatorial management is beside the present question, as to that I offer no opinion: it is sufficient that it was a voluntary act on the curator's part. He was entitled to receive payment in cash, and he preferred to take value in stock. Now, it is quite clear that he had no power to make his ward a partner of any trading company; and, in point of fact, he made no such attempt. The executor had these shares conveyed to him by confirmation, and had power to dispose of them without becoming a partner of the company; but a party taking these shares from him by the ordinary deed of transfer necessarily became a partner of the bank; and this is exactly what the curator did. That being so, it is in vain to appeal to books kept by officers of the company with a view to show that he was not looked on by them as a partner. The defender has clearly become a partner, and it is vain to allege that he is only a partner qua curator bonis, or with any other qualification. It is now well established that no one can become a partner in a company such as the present with limited liability, or can possess any privileges which are not held in common with the other shareholders.