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legal warrant. For example, had he limited the search to particular documents, or appointed it to be carried out under his own eye, I am not prepared to say that would have been an illegal warrant. Now, although that has not been done, I do not think that the defenders' application was out and out, and in substance, contrary to law. Therefore, I am of opinion that the pursuer must take upon him the burden of showing that the defenders' statements were made maliciously and without probable cause.
COTABERTSON v. CUTHBERTSON.-Jan. 18.
Reference to Oath-Intrinsic and Extrinsic. The question in this case, which was an action of accounting, was whether the defender was entitled to charge against the pursuer an alleged debt of £180, said to have been incurred by him to the deceased George Cuthbertson. The existence of the debt was referred to the pursuer's oath. In his deposition he admitted that he borrowed £180 from the deceased George Cuthbertson, for which he gave him an I O U. But he added, “ within three weeks, according to my best recollection, after I had borrowed the £180, I went up to the Bazaar Market in Glasgow, and held out £180 to him, saying, 'here is your money,' and asked him to give me up the IOU. He said that he did not want it, and 'I make you a compliment of it.' I asked him what was to come of the I O U. He said he would either destroy it or bring it to me; and he never asked the money from me after that.” The pursuer says, I never saw the I O U since I granted it.
The Lord Ordinary (Kinloch) held that the foregoing statement in the pursuer's deposition was intrinsic of the reference and negatived restingowing of the debt, and therefore found that the defender was not entitled to charge it against the pursuer.
The Court adhered to the Lord Ordinary's interlocutor.
ANDERSON v. Scottish North-EASTERN RAILWAY COMPANY.—Jan. 20.
Title to Sue-Assignation. This action was originally raised by John Anderson against the Scottish North-Eastern Railway Company for the reduction of an arrestment of his stock by the company.
The point now before the Court was whether Mr Watt, who had obtained an assignation to the stock from Mr Anderson, and had been sisted as a party to the action, was entitled to insist in the same.
The Lord Ordinary (Jerviswoode) in respect that the assignation contained no assignation to this action, and farther in respect that Mr Watt had not been registered as a shareholder in the company, dismissed the action.
The Court unanimously recalled the Lord Ordinary's interlocutor, holding that the right to insist in the present action was carried by the general assignation to the stock, and that Mr Watt was entitled to try in the action whether he had a right to the stock in virtue of his assignation.
Pet., Hugu Swan.
Minor—Curator ad litem. This was a petition for the removal of a trustee, and the appointment of a factor on the trust estate. One of the parties called as a responent in the
petition, and to whom it was intimated, was a minor. He made no appearance; and to-day the counsel for the petitioner suggested that a curator ad litem should be appointed to him. The Court, however, thought this unnecessary in the case of a minor who had not appeared, and therefore granted the prayer of the petition.
Pet., THE DUKE OF ATHOLE FOR AUTHORITY.—Jan. 12.
Disentail-Consents. The question in this petition was whether the entail, under which certain of the Athole estates are held, was to be held to be of the date of the trust deed directing them to be entailed, or of a subsequent private Act of Parliament obtained by the late Duke. The question was of importance to the petitioner, as if the entail was to be held to be of the date of the trust deed, it would then be competent for the petitioner to disentail the lands with the consent of the three next heirs entitled to succeed, which had been obtained. If, on the other hand, the entail was to be of the date of the private Act, the land could only be disentailed with the consent of the heir who, if in life at the Duke's death, must succeed, and who, to make his consent available, required to be of the age of twenty-five. As the petitioner has no family no such consent could at present be obtained.
The Court held that the entail was to be held to be of the date of the trust deed, and, therefore, that the estates could be disentailed with the consents already obtained.
THE GREENOCK HARBOUR TRUSTEES v. Stewart's TRUSTEES.-Jan. 12.
Title-Bounding Charter. In the beginning of the present century, the deceased Roger Stewart, feued from Sir M. Shaw Stewart, a piece of shore ground, on which he built a warehouse. After the purchase, the Greenock Harbour Trustees feued the ground seaward of Stewart's feu. The space between the buildings was used by Stewart as a place for lumber for many years, and was afterwards enclosed by him, and let out to tenants, and certain buildings of a temporary character were erected thereon. The present dispute arose in consequence of the pursuers having, with a view to using the space northward of Stewart's feu for harbour purposes, taken possession of it. Stewart's trustees thereupon raised an action of removing, in which they averred that the space in question was included in their feu contract, being the solum of a bulwark originally constructed by Stewart to protect his feu from the sea, and the right to erect which was included in the contract. The harbour trustees met the action by a counter action of declarator, that the said space was included in their feu contract, in which they averred that the possession had all along been by them. The two actions were conjoined, and proof led, from which it appeared that the possession had truly been with Stewart's trustees.
The Court, affirming the Lord Ordinary (Kiploch's) interlocutor, held that Stewart's charter was a bounding charter, and that, as the harbour trustees' charter made Stewart's feu to be their boundary, the space in question fell within their title.
Munro v. THE CALEDONIAN BANKING COMPANY.—Jan. 16.
Bond of Caution-Suspension-Issues. This is a suspension of a charge by the Caledonian Banḥ on a bond of caution for a cash credit of £200, signed by Munro and others. The grounds of suspension averred are, that the suspender was induced to sign the bond by false and fraudulent representations on the part of the principal in the bond-- Robert MʻIntyre, formerly parochial schoolmaster and inspector of poor for the parish of Kincardine—who represented that the suspender, by signing the bond, would merely become cautioner to an insurance company for £10, to be borrowed on a policy of insurance on his (MʻIntyre’s) life. It is also averred that the bond was not signed by Munro in presence of the persons who subscribe it as instrumentary witnesses. The suspender proposed to take issues on both grounds of suspension.
The Court allowed an issue to try the question whether the instrumentary witnesses saw the bond executed by the suspender, but disallowed the issue in regard to the false and fraudulent representation under which the bond was alleged to have been signed, holding that that, although true, would be no ground for suspending the charge at the instance of the bank; and the Lord President observing that, if it were otherwise, a bond of caution would be of little value.
M.P., NIVEN (KIRKLAND's Factor) v. STOCKS AND OTHERS.—Jan. 16.
Trust Deed-Construction. The late William Kirkland, innkeeper and coachmaster at Kinross, by his trust disposition and settlement conveyed his whole estate to certain trustees. He directed his trustees to hold his estate for behoof of his daughter, Mary Kirkland or Stocks, in liferent, and after her death to divide the same amongst her children on their attaining twenty-five years of age. In the event of his said daughter dying without issue, or of any children she might have dying before attaining twenty-five years, he directed his trustees to realise his whole estate and divide it equally among bis brothers and sisters. Mr Kirkland thereafter executed the following codicil: -“I hereby so far vary and alter the foregoing settlement as to declare it is my will that in the event my daughter shall have no other child lawfully begotten than my present grandson, James Stocks, my said grandson, even though he shall have attained the age of twenty-five years, shall have no more than a liferent interest in the estate thereby conveyed, unless he marries and has lawful issue, on the occurrence of both of which events my said trustees will be bound to denude of this trust in his favour in the terms before specified."
The truster died in 1836, survived by his daughter, Mrs Stocks, who had an only child, viz., the James Stocks mentioned in the foregoing codicil. He now claims the whole of Kirkland's estate as heir at law. Kirkland's brothers and sisters, on the other hand, maintain that the judicial factor on the estate is bound to hold it for the purpose of paying the liferent of it to Stocks until—(1) he marries and has lawful issue, or (2) the liferent provided to him lapses by his death, without his having married and had lawful issue, in which case it would fall to them, the truster's brothers and sisters.
The Court, recalling the interlocutor of the Lord Ordinary (Ormidale) held (1) that under the trust-deed the testator's grandson (the claimant
Stocks) had right to the fee of the estate on attaining twenty-five years of age, and in the event of his dying before twenty-five the fee belonged to the testator's brothers and sisters; (2) that by the codicil Stocks' rights were restricted to a liferent, and by bis survivance of the age twenty-five the only condition on which the testator's brothers and sisters were to have the fee had been rendered impossible, and (3) that in these circumstances the testator bad died intestate, quoad the fee, which therefore belonged to the claimant Stocks as heir at law.
M.P., NATIONAL BANK v. BRYCE AND OTHERS.—Jan. 20.
Bank Cheque-Donation-Proof. The fund in medio in this case was a sum of £281, standing at the credit of the late Matthew Young with the National Bank, at 5th February 1863, the date of Mr. Young's death.
The sum was claimed by Miss Mary Bryce. Her statement was to the effect, that Mr. Young had boarded in her house for some time before his death, and had incurred a considerable debt to her for board and lodging, and for cash advances and outlays. On:4th February 1863, the day before Mr. Young died, be filled up and gave to the claimant a cheque on his account with the National Bank for £321, telling her that she was to pay herself out of the contents, and retain the surplus.
Mr. Young's . executors also claimed the fund, stating their belief that Mr. Young's object in sending for the balance of his account before his death, was to place the money in the hands of his father, and that he did not intend donation to Miss Bryce.
The Lord Ordinary, Jerviswoode, was inclined to sustain the claim of Miss Bryce, but appointed parties to lodge issues.
The Court unanimously sustained the claim of Miss Bryce.
The Lord President said, that the question was whether, believing the statement made by Miss Bryce, the Court was to give effect to it, as a donation attempted to be proved by parole evidence. Now, there were many circumstances connected with the position of the parties which might be looked to, and which might be proved by parole. There was the fact, that Mr. Young boarded in the claimant's house, and was indebted to her for board and lodging, &c. Taking all these facts and circnmstances, together with the existence of this document, Miss Bryce's statement was very materially supported. The fact that the payment was made on deathbed was in no way against this claim, nor the fact that Mr. Young had considerable means otherwise. They were rather in favour of it. He had made a settlement, and if he had wanted to make in it a regular bequest to Miss Bryce, he would have had to employ an agent, which he might not feel inclined to do, and he therefore took a very natural way of giving the money. He drew out what he supposed to be the entire amount of his funds in bank, by mistake over-estimating the amount. It was hardly conceivable that the sum to be drawn out was for his own use, and the defender's story, that the money was to be a donation to Mr. Young's father, was not very credible, for it was a very curious way of making a donation to the father, by giving a cheque in favour of Miss Bryce.
MORGAN v. MORGAN.—Jan. 20.
Promissory Note--Stamp. The question in this case was whether certain documents were promissory notes, and, being unstamped, were null under the stamp laws, or, assuming that they were not promissory notes, whether they were I O U's, or bonds requiring to be stamped. The documents were in the following terms :
" 1st September, 1853. " Dear
I was favoured with your letter of yesterday, prefixing letter of credit on the Western Bank for three hundred and ninety-seven pounds, which, with the interest due to you at last Whitsunday, and the interest thereon since that date, makes up five hundred pounds, which I have received in loan from you, to be repaid in December next, but hope you won't be too strict as to the time of repayment, as it will depend much upon the price of Clydesdale Bank stock, as I am averse to sell at present prices.—Yours truly.”
"14th October, 1845. I have borrowed from you one thousand pounds sterling, which I hereby bind and oblige myself to repay to you at Whitsunday next, with interest at the rate which shall be paid on money lent upon first heritable security. And I also engage to grant you, if required, satisfactory heritable security for the above sum. I remain, &c.”
The Lord Ordinary (Kinloch), held that in neither document was there that simple promise to pay a specific sum at a definite date necessary to constitute them bills or promissory notes incapable of being now stamped. He further considered they were not I O U's, but documents of obligation requiring to be stamped, and therefore sisted process in order that this might be done.
The Court adhered, and on the same grounds.
WALKER v. THE TRADES LANE CALENDERING COMPANY.—Dec. 22.
Factory Acts-- Appeal - Competency of. The pursuer, Mr Walker, as sub-inspector of factories, presented, on 9th October, 1863, a complaint to the Justices of Peace for Forfarshire, accusing the defenders of certain breaches of the Factory Acts. The first charge was that of employing George Nicoll, a young person under the age of sixteen, without his name being previously registered, in terms of the Act; the second, that of employing the same George Nicoll, “ time and place aforesaid,” for more than nine hours a day, without a surgeon's certificate; the third, that of employing, “ time and place aforesaid,” fifteen young persons named, after six o'clock in the evening; the fourth, that of employing the same young persons during the night, "time and place aforesaid.” The Justices convicted the defenders, and adjudged them" to forfeit and
pay in respect of the offence first hereinbefore set forth, a penalty of £3 3s; in respect of the offence second hereinbefore set forth, a penalty of £2; in respect of the offence third herein before set forth, the sum of £1 of penalty for each of the fifteen young persons illegally employed as therein mentioned, making in all the sum of £15; and in respect of the offence fourth hereinbefore set forth, the sum of £2 of penalty for each of the fifteen young persons illegally employed, as therein mentioned,