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WADDELL v. MACPHAIL. A tenant who entered into possession on 1st August held not to have been in possession for twelve months previous to the 31st July following.
M'CULLOCH v. FREELAND. A free yearly liferent annuity of £10, 10s., secured upon heritable property withont any personal obligation, does not entitle à claimant to have his name on the register.
MCULLOCH v. SMITH. The same held, where there was a 'liferent yearly ground-annual rent.'
Dick v. WADDELL. Continuous occupancy under sec. 9 may exist, although the claimant had held a house for successive periods of three and two months, and one month ; and the rent being of the requisite amount, it is not necessary that the contract under which it is received should be for a year.
M-CULLOCH v. SHARPE. A claimant held not divested, though his creditors were receiving the rents of the subjects under a decree of maills and duties.
Expenses.- In the appeals from Dumbartonshire, the Court taking into consideration the facts that all were conducted by the same counsel and agents, and that many of them did not need separate discussion, awarded £2, 2s. of expenses in each case.
CARRIERS BY RAILWAY.—Under section 7 of 17 & 18 Vict. c. 31,—which provides that no greater damages shall be recovered from a railway company for loss of or injury to a horse than £50, unless the person sending or delivering the same shall at the time of such delivery have declared it to be of a higher value, in which case it shall be lawful for the company to demand and receive reasonable percentage upon the excess of the value so declared, and which shall be paid in addition to the ordinary rate of charge,—the knowledge of the company as to the value of a horse, not derived from a declaration to that effect by the sender, does not give the company any right to demand such increased rate of charge under the above section. To entitle the company to demand such increased rate, the declaration must be made with an intention by the sender of the horse that it should so operate.—(Robinson v. The South-Western Rail. Co., 34 L. J., C. P. 234.)
CHARITY.-The pital of St John at Bedford appeared to have been founded, or reconstituted, in 1280, . for the support of two or three brethren, the most advanced of whom was to hold the place of master; and for the relief of the poor of Bedford.' The mastership of the hospital had, from the earliest mention of the parish of St John, been inseparably united with the rectory of the parish. From the year 1280 to 1374, the master was elected by the VOL. X. NO, CIX.-JANUARY 1866.
brethren ; but in 1444 a vacancy was filled up, on the presentation of the Mayor of Bedford, and from that time the united mastership and rectory had always been filled up on the presentation of the mayor, or the mayor and burgesses ; but there was no evidence to show by what right these presentations were made. The corporation seal of the hospital was still in existence, and leases were granted thereunder, and small payments were made to ten poor persons, called beadsmen. It was held, by the Master of the Rolls, that the long exercise by the mayor of the right to present to the mastership could not supersede the original trusts ; and that as well the property of the hospital, as the right of presentation to the mastership, remained subject to these trusts. And on appeal the Lords Justices affirmed the decree so far as it related to property of the hospital, but held that the corporation could not be treated as trustees of the right of presentation to the mastership.—(The Attorney-General v. The Master and Co-Brethren of the Hospital of Saint John, Bedford, 34 L. J., Ch. 441.)
POWER.—The will of a testator, who gave property to three persons as trustees, contained a power providing that, if the trustees thereby appointed should depart this life, or decline or become incapable to act in the trusts, it should be lawful for the surviving or continuing trustee or trustees, his executors, administrators, or assigns, to appoint one or more person or persons to be a trustee or trustees in the room of the trustee or trustees so dying, declining, or becoming incapable to act therein. Two of the trustees disclaimed. The third acted, but subsequently, being desirous of retiring, appointed two new trustees, and conveyed the trust estates to them. This appointment was held invalid, the retiring trustee not being a continuing trustee within the terms of the power. The word “declining, in a power so worded, covers the case of a trustee who, after having acted, refuses to act any longer.—(Travis v. Illingworth, 34 L. J., Ch. 665.)
MURDER ON THE HIGH SEAS.—The prisoner was one of the crew of a ship which was built in Holstein, from whence she sailed to London. All the officers and crew were foreigners. R., the registered sole owner, was an alien born, but described in the register as of London, merchant.' The ship sailed from London, and under the British flag. While on the voyage, the prisoner killed the master on board the vessel when several thousand miles from England, and 200 miles from any land. On the trial of the prisoner for murder, these facts were proved; and no evidence was given that Ř. had been naturalized or had obtained letters of denization. It was held, there was no evidence that the ship was a British ship, and that consequently the prisoner could not be convicted in England for this offence.—(R. v. Bjornsen, 34 L. J., M. C. 180.)
COLLISION AT SEA.- The enactment of the Merchant Shipping Act Amendment Act, 1862 (25 and 26 Vict. c. 63, s. 54), fixing the limit of liability of the owner of a ship in respect of loss of life or personal injury caused by the improper navigation of his ship to persons carried in another ship,' extends to the crew of such other ship as well as to other persons carried thereby; and such liability consequently is measured by and extends to the sum of £15 per ton of the wrong-doing ship's tonnage.-(Glaholm v. Barker, 34 L. J., Ch. 539.)
CONTRIBUTORY.—In October 1846, A., in the belief that he must take shares in order to qualify for the office of director which he had accepted in an assurance company, applied for and had certain shares allotted to him. Understanding shortly afterwards that no qualification was necessary, he thenceforward repudiated the shares, refusing to execute the deed of settlement or to pay calls. No dividend was ever received by him. In 1855, after intermediate communications, he offered to pay a specified sum on being released from all further liability; and the directors, who were empowered by the deed of settlement to compromise disputed claims, passed a resolution accepting his proposal. This resolution was confirmed at a general meeting of shareholders, but no notice
had been given of the intention to confirm the arrangement or of its terms, nor were the terms stated in the circular subsequently sent to the shareholders, containing the directors' report and the resolutions passed by the meeting. A.'s name had been originally put upon the register of shareholders, and was never removed. In 1861 the company was wound up, and the Master of the Rolls put A. on the list of contributories ; but the order was, on appeal, discharged by the Lords Justices, their Lordships holding (there being no ground for imputing fraud, collusion, suppression, or concealment) that whether A. was originally liable as a shareholder or not, the arrangement under which he had been released must stand as a bonâ fide compromise.—(Re The Agriculturist Insur. Co., ex parte Belhaven, 34 L. J., Ch. 503.)
CONTRIBUTORY.-A. filled up a blank form of application, by which he agreed to accept a certain number of shares in a company, or any less number which might be allotted to him; and he paid a deposit, for which he received a banker's receipt. No shares were ever allotted ; but he never made any formal claim for repayment of his deposit, which the company used. The company was wound up before it had commenced its intended operations, and A. was placed by the Master of the Rolls on the list of contributories. But on appeal it was held by the Lords Justices that the contract was only to accept shares when an allotment should have been made, and that until allotment there was no complete contract, and consequently that A. was not a contributory.—(In re The Adelphi Hotel Company Lim. (Best's case), 31 L. J., Ch. 523.)
CONTRIBUTORY.-A., upon his appointment as agent to a limited assurance company, agreed to take shares upon the terms that payment for them should be deducted from his commission as agent; and no deposit was ever paid by him upon them, but he was registered as the holder of the shares. The company very soon after his appointment dismissed him, but, as he contended, wrongfully. On the winding up of the company, the Lords Justices, reversing a decision of the Master of the Rolls, held that the company's cancellation of A.'s appointment as agent, whether justifiable or not, could not operate as a cancellation of A.'s agreement to become a shareholder, and that (subject to any question of account as to payment for the shares) A. was liable as a contributory.-(In re The Life Association of England Lim. (Thomson's case), 34 L. J., Ch. 525.)
INFANT (Dinor).- The Court will not take a child of tender years from the custody of its mother on the ground that the mother's religion differs from that of the deceased father, and that such change of custody is requisite to the training of the child in the father's religion ; but the Court, in the circumstances of the case, declared that the child ought to be brought up and educated, when capable of receiving religious education, as a member of the church to which the father had belonged. -(Re Austin and Austin v. Austin, 34 L. J., Ch. 499.)
PATENT.—It is sufficient to constitute user of a patented article, that the same sort of benefit, however temporary and indirect, has been in fact derived from it as would arise from it in its ordinary use. It is immaterial whether the use of the article be active or passive.—(Betts v. Neilson, 34 L. J., Ch. 537.)
FOREIGN DIVORCE.-A., an Irishman by birth, resided at the Cape of Good Hope from 1842 to 1862. During the earlier part of this period he served in an English regiment stationed at the Cape ; during the latter, in the Cape Mounted Rifles. In 1850 he married at the Cape B., and in 1852 this marriage was dissolved by a sentence of the Colonial Court on the ground of B.'s adultery. In 1852 he married C., in the lifetime of B., and in 1863 he died intestate. An application by C. for administration to A. as his widow was opposed on the ground that A. was a domiciled Englishman at the date of his first marriage, and therefore that the sentence of divorce pronounced by the Colonial Court was inoperative. It was held, that as upon the evidence there was no proof that
A. was a domiciled Englishman, or that his domicil was not at the Cape, the sentence of divorce must be treated as valid. Quære, Whether, if A. had been a domiciled Englishman, the divorce would have been invalid in England.(Argent v. Argent, 34 L. J., P. M. A. 133.)
BILLS AND NOTES.—Defendant, a British subject resident in Florence, signed two promissory-notes there, as joint and several maker with his brother in London, to whom he sent them by post. His brother then also signed them, and delivered them in London to the payees. It was held that the cause of action arose when the notes were delivered to the payees in this country, and that defendant could therefore be sued here under sec. 18 of the Common Law Procedure Act, 1852.-(Chapman v. Cottrell, 34 L. J., Ex. 186.)
CARRIERS BY RAILWAY.-An attorney, going by railway to attend a county court, took in his portmanteau documents and bank-notes for use in certain causes in which he was engaged as an attorney. The portmanteau was carried under the private act of the railway company without charge as passengers'
ordinary luggage;' it was missing at the end of the journey, and not recovered for some days. It was held, these articles were not ordinary luggage' of the attorney as a passenger, and that the railway company were not liable in damages for the consequences of the temporary loss of them.—(Phelps v. The London and North-Western Ra. Co., 34 L. J., C. P. 259.)
CARRIERS BY RAILWAY.-Plaintiff took a ticket from defendants from C. to N. Plaintiff, after waiting a long time, was told by a porter that the train was late in consequence of an accident, and the train eventually arrived an hour and a half late. The consequence was, that plaintiff was late for the train at G., which would have carried him on to N. The train-bill was not put in, but only some correspondence in which defendants repudiated their liability on the ground that by the train-bills they gave notice they would not be liable for the trains keeping time. It was held, there was no evidence of a cause of action.-(Hurst v. T'he Great Western Ra. Co., 34 L. J., C. P. 264.)
CHARTER-PARTY.-A. of Alexandria bought coals of B. of London, which were to be delivered at Alexandria, price to be paid on delivery of bill of lading, less balance of freight payable at Alexandria. B. chartered C.'s ship to carry the coal: Coal to be delivered on freight being paid; . . . freight to be paid on unloading and right delivery of cargo, less advances in cash at current rate of exchange; : . . balf the freight to be advanced by freighter's acceptance at three months on signing bills of lading; owner to insure amount and deposit with charterer the policy, and to guarantee the same. The bill of lading was signed. B. gave his acceptance for the half freight, the receipt of the half freight was indorsed on the bill of lading, and the bill of lading was indorsed in blank by B. and given to A. The average length of the voyage was two months. Before the ship arrived, B. became insolvent; and on arrival of the ship, and before the acceptance was due, the master refused to deliver the cargo to A., unless the whole of the freight was paid, or payment guaranteed. A guarantee was given by D. for A. under protest, and the cargo was delivered ; D. then, by A.'s direction, refused to pay. An action was brought in the Consular Court against D., who then, by X.'s direction, paid under protest. A. repaid D., C. knew nothing of the arrangement between A. and B. It was held, that A. was entitled to recover the half freight from C.-(Tamvaco v. Simpson, 34 L. J., C. P. 268.)
DAMAGES (Reparation).—On a contract to sell cotton of a certain quality at a certain price, to be delivered at a future time, the measure of damages for non-delivery is the difference between the contract price and the market price at the time limited for the delivery ; and the buyer cannot recover for the loss of profit which he would have made by carrying out a re-sale at a higher price made in the interval between the contract and the time for delivery.-(Williams v. Reynolds, 34 L. J., Q. B. 221.)
COURT OF SESSION.
FIRST DIVISION. NELSON v. BLACK AND MORRISON.- Dec. 21. Issue - Privilege--Malice and Want of Probable Cause. The defenders, on 25th December last, presented a petition to the Sheriff of Fife, setting forth that, in the course of their precognitions in regard to the accusations against certain persons of having conspired for the purpose of taking the life of the Rev. James Pitt Edgar, minister of Dunbog, or of doing him grievous bodily injury, and of having sent him threatening letters, they (the defenders) had recovered documents showing that the pursuer among others had been engaged in said conspiracy and in writing and sending said threatening letters, and praying for a warrant to search his house and those of the other alleged conspirators, for all documents and articles tending to establish their guilt. The Sheriff granted the warrant as craved. It was executed against all those against whom it was directed except the pursuer. A few days after it was granted it was withdrawn as against him. In a suspension of the warrant, at the instance of the other parties, the Court of Justiciary, on 30th June last, set it aside as illegal. The pursuer now brings the present action of damages in respect of the alleged slanderous statements in the said petition.
The case was reported by the Lord Ordinary on the question whether the pursuer must put in issue, malice and want of probable cause.
It was contended for the pursuer that it was not necessary to insert malice and want of probable cause, as the warrant had been held by the Court of Justiciary to be illegal, and the application for it by the defenders having thus been ultra vires, they had no privilege in making it.
The Lord President, after explaining the nature and position of the case, said-Procurators-Fiscal have certain duties to discharge in the interests of justice, and in regard to them they are protected, unless it is shown that they acted maliciously and without probable cause. It is said that the pursuer in the present case is not bound to take this burden of proof, because the warrant, which the defenders asked and obtained was an illegal warrant, and so, it is argued, they had no privilege in making the statements upon which they did ask it. Questions of nicety and difficulty arise in such a case, as to how far a Procurator-Fiscal is outwith the ordinary protection accorded by the law when he concludes a petition by asking something which he is not entitled to demand, and these questions must be determined by the nature of the illegality in the demand." If it be something beyond all law and reason to search repositories, that is one kind of illegality; if, on the other hand, it is merely illegal to search them in the way asked and granted, that is a different kind. The one illegality touches the substance of the proceedings, the other points to some error or omission in the same or want of caution in carrying them out. Were the illegality of the first kind, the pursuer might be entitled to an issue without malice and waut of probable cause; but if the illegality be of the second order, I am of a different opinion. I think this comes under the latter class. Under this application it was competent to the Sheriff to have granted a VOL. X. NO. CX.- FEBRUARY 1866.