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making together the sum of £30, said whole penalties under the said several offences amounting in the aggregate to £50 3s.” The defenders appealed to the Quarter Sessions, on 9th November 1863, the Justices in Quarter Sessions quashed the conviction on the ground, that the case did not fall within the provisions of the Factory Acts. The pursuer now sought reduction of this appeal, and of the judgment quashing the conviction, on the ground that the appeal was incompetent under the 69th section of 7 Victoria c. 15, which declares “ That no appeal shall be allowed against any conviction under this Act, except for an offence punishable at discretion, or when the penalty awarded shall be more than £3.” The pursuer contended that each offence charged must be considered separately, and that each young person must be held to constitute a separate offence, and that in this view the penalty awarded, except in the first-mentioned offence, must be held to be less than £3 in the statutory sense.
The Lord Ordinary (Kinloch) found that the appeal to the Quarter Sessions was competently taken, and assoilzied the defenders, on the ground that the defenders were charged, under a single complaint, with several breaches of the Acts committed at the same time and place, and as the aggregate penalties for these offences amounted to £50 3s, the case must be treated as one in which, in the sense of the Act, the penalty exceeded £3. The Court recalled this interlocutor in part, holding that four separate offences were charged, and that the penalty awarded in the second of these being only £2, that conviction could not competently be appealed. As to the others, they adopted the Lord Ordinary's judgment, the penalties in each being above £3.
Susp., Crow v. Fowlie.—Dec. 22.
Reference to Oath. This was a case in which the suspender and another accepted a bill with one M Farlane, they being the cautioners and he the real obligant. On the suspender being charged, he presented a suspension on the grounds that the debt in the bill had been already paid by the principal obligant, and condescended very minutely on the circumstances in which the various payments to account had been made. A commission and diligence was obtained to prove the suspender's accounts by the writ of the charger; but nothing was recovered which necessarily inferred payment. The Lord Ordinary accordingly repelled the reasons of suspension, and found the letters orderly proceeded. On a reclaiming note the Court adhered. The suspender then referred the whole cause to the oath of the charger, whose deposition the Court found amounted to non memini of circumstances which he could not reasonably be supposed to have forgotten, and accordingly held that the import of his oath was the same as if he had declined to be examined, construed it as affirmative, and suspended the charge.
AIKMAN v. NISBET.—Jan. 12. Summary Removing-Question whether competent against a Disponer.
In a removing in a Sheriff-Court, the pursuer set himself forth as heritable proprietor of a dwelling-house, and produced a registered disposition in his
favour. He acquired the subjects from the Commercial Bank, by whom they were sold under a cash credit bond granted to them by the defender. He set forth, in his petition, that the subjects in question were occupied by the defender"
as tenant or possessor, or pretended tenant or possessor, under him," who had timeous warning, and he produced precept and execution of warning; and upon these grounds applied for summary ejection. In this suspension, the defender and complainer argued, inter alia, that this being an extraordinary removing to eject a proprietor from subjects belonging, or formerly belonging to him, the Sheriff had no jurisdiction.
Lord Justice-Clerk.-—There is no irregularity in the pursuer setting out that the party in possession is either tenant or pretended tenant, of the subjects, for it might come out in the course of the proceedings that his title was open to objection; and there is no ground for supposing that a defect in the tenant's title would prove a good defence in such a removing. If the defender had alleged that he was proprietor, and had produced a competing title, there could be no doubt that the process would at once become incompetent in the Inferior Court. But Nisbet pleaded incompetency, on the ground that the parties never had stood in the position of lessor and lessee, which was an admission by him that he had not a good title of tenancy, and let in the alternative in the summons of pretended tenancy. It would be very rash for a pursuer to proceed upon the assunuption that such a person as the defender had no title of tenancy, and turn him out without any warning. After such an admission as he has made, the defender's mouth is shut as to the objections which follow, for they apply to a warning which was not in the circumstances required at all. No doubt, he says, that the pursuer had no title, as he, Nisbet, was the proprietor. This is not an allegation that Nisbet is the proprietor. It is not said how or when he ceased to be proprietor, and there is no production of any title whatever. The case of Waterston v. Mason (8 D.) was referred to, and the proceeding of the Sheriff was said to run counter to it—on the ground that the summary removing of a tenant cannot be converted into an ejection of one who turns out to be a vitious possessor. But there is a material distinction. In that case the petition or summons in the Inferior Court libelled missives of lease on which the tenant possessed and had no alternative. Again, the question raised on the merits was a competition of heritable rights. Neither of these questions arises here. This is a proper removing against a party reasonably supposed to be a tenant, or in the position of a tenant; and who, when he admitted he was not so, left the Sheriff no alternative but to pronounce a decree of removing. It is not necessary to fix any general rule, except that a petition so framed is competent, and may proceed whether the party against whom it is directed has a proper title of tenancy or not.
The other Judges concurred in refusing the suspension.
BAIN OR SMITH v. SMITH.-Jan. 11.
Antenuptial Contract—Construction-Desertion. This action, at the instance of a wife against a husband, was founded on a provision in an antenuptial contract; by which the husband became bound " to settle and secure a free yearly annuity in favour of the said Isabella Bain, to be paid during the subsistence of the said marriage, and during
her natural life, in the event of her surviving after its dissolution by the predeceasing" of the husband, while she remained a widow allenarly, exclusive of the said husband's jus mariti, courtesy of Scotland, or other title, and of liability for his debts. The wife also asked that the husband should be ordained to invest, at the sight of the Court, a sum of £1248 which had come into his hands as her fourth share of her father's estate, and which he had not applied in terms of the said marriage-contract, which provided that she should enjoy a liferent of that share exclusive of jus mariti. It was pleaded, in defence, that the pursuer had deserted her husband, and was now living apart from him, and that she was not entitled to ask for implement of this contract while she herself was not performing her conjugal duties.
The Lord Justice-Clerk.—There was no doubt that where a wife was living separate from her husband, without a contract or decree of separation, she was in a state of desertion, unless the fault was on his side. But a woman in such a state was not entitled to come and ask for equity in any shape whatever. Hence she could not ask for aliment. This, however, was not an action in equity, but one to enforce the terms of a contract, which the Court was bound to enforce, unless the husband had a good answer. The question was whether it was a good answer to say that the wife suing on the marriage-contract had failed in the performance of her conjugal duties. Now, her duty to adhere to the consortium vitæ, and her other nuptial duties, were not constituted by this ante-nuptial contract, but by the more solemn consensual contract made in the face of the Church. The obligation in the ante-nuptial contract precisely fixes the terms and termination of the annuity. It is due during the subsistence of the marriage, and during viduity. The husband says the wife has violated not this contract of marriage, but the contract of marriage in another and more sacred sense. There is a different remedy for that, which consists in an action of adherence at the instance of the husband, uot in his refusal to perform his obligations under the special contract. As to the sum of £1218, it was quite plain that the husband was bound to invest this so as to give precise effect to the terms of the marriage-contract.
The other Judges concurred; and the husband was ordained to state how he proposed to secure the annuity, and to deposit the £1248 in bank, subject to the orders of the Court.
DARSIE v. SCEALES.—Jan. 16.
Consistorial-Designation of Pursuer. This was a declarator of marriage on various grounds, at the instance of "Eleanor Darsie, residing in London," against the representatives of the late Stewart Sceales, with whom she had lived in Edinburgh and elsewhere, between the years 1852 and 1859. The defenders moved, after the day for trial was fixed, that the pursuer should be appointed to furnish them with her present address. The Lord Ordinary (Ormidale) granted the motion.
The Court altered, and refused the motion on the ground that, although even such an unprecedented motion might be granted on special cause shown, yet no special circumstances were here alleged. It was true that the pursuer's designation was no designation at all, but the time had passed for objecting to that.
Lord Cowan differed, holding that the motion was made at a legitimate part of the trial. It was unprecedented, but it was also unprecedented that any such concealment of the pursuer’s residence should be met with.
DUKE OF BUCCLEUCI V. MAGISTRATES OF SANQUHAR.—Dec. 8.
Teinds—Arrears—Bona fide Consumption. The Duke, as titular, sued the defenders for arrears of teinds from 1830 to 1863. It was proved that down to 1810 only £5, 18s 2d a-year had been paid to the Duke's predecessors, and that nothing had since been paid. It was alleged that these payments had been under a tack or other agreement, and that the Duke having since 1810 been tenant of the defenders in certain lands of greater annual value, their teinds had been set off against the rent due by him, and were only sufficient to cover the amount of stipend localled on the defenders after the augmentation of 1822, and which had since been paid by the pursuer to the minister of Sanquhar. The chief contention was, that there had been a continuous use of payment to the amount of £5, 18s, or thereby, and that the remainder of the teinds had been bona fide consumed by the defenders. The Court held that till 1810 the payment had proceeded on a precarious instruction given by the then Duke of Queensberry, in 1726, to his chamberlain, which was purely gratuitous and revocable at the pleasure of the titular. The Lord Ordinary had founded his judgment on cases (Stirling, 1 Pat., Ap. 90, and Scott, Bell's fo. Ca., and M. 15,700), in which it was held that when a party took upon himself the character of titular, and in that character granted discharges for teinds, this was a colourable title under which the heritor might possess and consume surplus teinds. In the cases referred to the discharge had been granted by the minister, who, in so doing, necessarily assumed that he was parson, and had right to the teinds as such. But the minister of Sanquhar was a stipendiary, and payment to him for any length of time could not iuterfere with the right of the titular.
COWAN, &c. v. LORD KINNAIRD.—Dec. 15. River-Upper and Lower Heritor-Alteration of Course Acquiescence.
In an action by an inferior against an upper heritor on a stream, for diverting water to supply a farm of the latter, it was admitted by the defender that the water was diverted, and was not restored; but pleaded (1), that about the time when the water was diverted, the defender in draining a marsh from which no perennial stream flowed, had so increased the water in the stream as to compensate for what he had taken off for the use of his farm; and (2), that the pursuer was barred by acquiescence from insisting in this action. The first defence was repelled, because the law distinguishes between the water of a stagnum, which is a precarious supply, and that of a perennial stream; and the water of the former can never be a sufficient compensation for a constant quantity drawn off from a running stream. The second plea was also repelled, because no facts and circumstances were stated in the record to support the averment of acquiescence. The defender maintained that in averring acquiescence, he must be understood to say that there were facts and circumstances to support this averment. But it was necessary according to the rules of pleading, to set out on record facts from which the acquiescence was inferred.
FINLAY'S TRUSTEES V. ALEXANDER.-Jan. 18.
Assignation of Legitim-Intimation-Equipollent. A post-nuptial marriage contract conveyed to trustees all right, title, and interest which the wife or her husband had or might hereafter have in the succession or estates heritable or moveable of her father. One of the trustees was the wife's mother, who was sole executrix of the father. The marriage contract was recorded; and as part of the deed there was recorded a minute attached to it, signed by the wife's mother and another trustee, “We, the trustees within named and designed, do hereby accept of the office of trustee.” Held, in a competition between the marriage-contract, trustees, and the trustee on the sequestrated estate of the mother, that this was an effectual intimation of the assignation. There could be no doubt that if anything technical were required in the intimation of an assignation this might not be quite correct, for it was rather. an acknowledgment by her than an intimation to her. But there is no more satisfactory equipollent of intimation than the acknowledgment of the debtor.
EDINBURGH AND GLASGOW RAILWAY v. Hall.-Jon. 19.
Poor Law Amendment Act, § 37—Assessment - Railway. In a suspension of a poinding for arrears of poors' rates on heritages belonging to a railway company. A remit was made to a man of skill to report as to what amount of deduction was proper to be made from the valuation of the suspender's lands and heritages in City parish of Glasgow in terms of the 37th sec. of the Poor-law Amendment Act (8 and 9 Vict., c. 83, sec. 37), which declares “ that, in estimating the annual value of lands and heritages, the same shall be taken to be the rent at which, one year with another, such lands and heritages might in their actual state be reasonably expected to let from year to year, under deduction of the probable annual cost of the repairs, insurance, and other expenses, if any, necessary to maintain such lands and heritages in their actual state; and all rates, taxes, and public charges in respect of the same.”
The reporter reported that deductions amounting in all to 38 per cent. ought to be allowed. The Lord Ordinary sustained, to a certain extent, objections by the Parochial Board and found that 28.60 per cent. was the proper deduction. On reclaiming the chief question discussed related to 5 per cent., proposed by the reporter to be added to the amount (24.85) otherwise allowed for maintenance and renewal of way. The reporter first ascertained from the company's books the sums actually so laid out for twelve years; but he thought that something more should be allowed. He found by an inquiry into the case of the Scottish Central Railway that what he calls the “ life" of the railway should be taken at sixteen years——that is, that it would require a complete renewal every sixteen years. He found the sums actually laid out by the company were less than the proportion fairly belonging to the period now in question of the entire expense so estimated, and that only 50 miles out of a total mileage of 110 to 120 miles had been completely renewed in the twelve years over which his information extended; and he added a hypothetical 5 per cent. to cover the difference. The Court held, adopting the view taken by the Lord Ordinary, that the ground for adding this 5 per cent. was entirely fanciful and speculative;