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being so, the pursuer could not succeed in the present action. But that was apart altogether from the question whether, if it should turn out that the trust was at a dead lock from there being no surplus rental for application towards extinction of the debt, the Court would not, in virtue of its nobile officium, power
of sale ex necessitate. Such a power unquestionably existed in the Court, to be exercised when absolutely necessary, but the pursuer was not in a position to show that the circumstances of the present case required its exercise. The decision now given, however, would not preclude a future application, if such became necessary.
THE INSPECTOR OF Poor or KIRKCONNEL V. THE INSPECTORS OF
PENNINGHAME AND GLENCAIRN.—Jan. 27.
Poor Industrial Settlement. The question in this case was whether the pauper Janet Geddes or Candlish, wife of James Candlish, a labourer, had acquired a constructive settlement through her husband. The pauper became insane in the parish of Kirkconnel in May 1861, and her husband being unable to support her she was removed to the Southern Counties Asylum at the expense of the parish, and, with the exception of a short interval, has continued there up to the present time. Up to 1st November 1863 the outlay on her account amounted to £42, 16s 11d, for which sum, less £20 paid by the husband, with interest and all expenses since incurred, the pursuer sought relief against the defenders alternatively. It was not ultimately disputed that one of the two was liable, and a minute was lodged to that effect. Penninghame was the husband's parish of birth, but he was said to have acquired a residental settlement in Glencairn. It appeared that he came to Minnyhive in the parish of Glencairn, on 18th July 1854, and lived there in lodgings till 8th September following, when he left for a few weeks, being employed in harvest work in another parish. He returned on 14th October, when he took a house, and was joined by his wife and family on 6th November. They all continued to live there till Whitsunday 1858, when they removed to another house in the same parish, where the family remained till 4th or 6th November 1859, but the husband went on the 18th May 1859, to Creetown, which is not in the parish of Glencairn, and with the exception of two days in June, he did not return till the beginning of harvest, and in November 1859 he finally left with his wife and family. It further appeared that each year he was absent a few days during harvest time, but it was not disputed that he had supported his wife and family, both when he lived with them and was absent from them. The question, therefore, was whether there had been such continuous residence for five years as is required by the statute 8 and 9 Vict., cap. 83, to constitute an industrial settlement.
The Lord Ordinary (Ormidale), held that the husband's residence in Glencairn ceased on 18th May 1859, and in any view did not commence till 14th October 1854, while he was rather inclined to hold that it did not commence till 6th November 1854, when his wife and children joined him. His lordship accordingly assoilzied Glencairn, and decerned against Penninghame, the parish of birth.
The Court reversed this judgment, and decerned against the parish of Glencairn, holding that the husband's residence in that parish, counting
from the period of his going there to the period of his leaving, having exceeded the statutory period of five years, and the interruptions by absence not having been of such a character as to dislocate its continuity, it had conferred upon
the husband an industrial settlement therein.
Watt v. Menzies.—Jan. 27.
Issues-Expenses. The pursuer sues Mr Menzies, omnibus proprietor in Glasgow, for personal injuries she sustained in Argyle Street, there upon being set down from one of his conveyances between the Cross and Anderston. She avers that, on asking to be set down, the guard, instead of stopping the omnibus, entered it abruptly, forcibly seized hold of her, and jumped with her in his arms to the middle of the street, and left her there. Before she recovered from her confusion, she was knocked down and injured by another omnibus. The defender proposed that it should appear in the issue that the pursuer was injured in consequence of the violent and reckless manner in which she was set down by the guard. The Court approved of the following issue :
“Whether, on or about 6th June 1865, and in or near Argyle Street, Glasgow, in consequence of the parties in charge of an omnibus belonging to the defender, in which the pursuer was travelling as a passenger, failing to take due precautions in setting her down from the said omnibus, she was knocked down and injured by another oninibus through the fault of the defender, to her loss, injury, and damage."
Mr. Clark explained that no copy of the issue now adjusted had been sent to deferder before the second meeting for adjustment before the Lord Ordinary. A copy of another issue in the same case had, however, been sent, and it was to this, that defender objected before the Lord Ordinary. The issue now approved was a new issue lodged at the bar in the Outer House, which the defender had not then any opportunity of considering. The Court refused pursuer's motion for expenses.
PRINGLE v. BREMNER AND STIRLING.–Jan. 30.
Warrant to Search--Mode of Executing. This is an action at the instance of James Pringle, millwright, Newburgh, Fifeshire, against the chief-constable of that county and one of the sergeants of police, arising out of the alleged mode of executing a warrant to search the pursuer's premises for materials supposed to have been used in constructing the cart wheel bush exploded near Dunbog Manse. The grounds of action are-(1.) That on 24th December 1864, the defenders came to the pursuer's house, stating they had a warrant to search the same, which they accordingly did, they, it is alleged, also searched the pursuer's repositories, examined all his private books and papers, and seized and took away a number of the same. The pursuer says they had no warrant for these proceedings. (2.) That the pursuer was on the same day apprehended by the defenders, and lodged at the Police Office at Cupar, all without warrant. For these proceedings he sues the defender for damages. The defenders do not aver that they had a warrant for the examination and
seizure of the pursuers papers, or for his apprehension; but that, holding a warrant to search his premises for other articles, they accidentally came upon a number of papers which seemed to throw light upon a matter which was then under investigation by the Procurators-Fiscal and police, and which was connected with the matter in regard to which they were making a search. They therefore thought it their duty to take possession of the documents, and to take the pursuer into custody, and to take him to Cupar for examination before the Sheriff; which, however, in respect of the lateness of the hour, had to be delayed till the following day. It was not disputed by the pursuer that the after proceedings were regular and legal. But the pursuer says on record that the defenders did not accidentally come upon his papers in the course of their search for other articles, but that they, in the beginning of their search, proceeded to examine his books and papers.
The case was before the Court about a month ago for the adjustment of issues, when the main contention was whether the admissions on record raised a case of privilege, and the pursuer, was, therefore, bound to put in issue, “malice and want of probable cause.”
The Court, considering that it was important to know the way in which the search for papers had been begun and executed-parties being at issue thereupon, and the record not supplying the information required before pronouncing any judgment as to the issues, appointed the pursuer to state specifically what he alleged with regard to these.
The pursuer has since given in a minute containing the following additional statement :
“On the occasion when the defenders came to the pursuer's house as aforesaid, the pursuer, who had been from home, arrived at his house just as the defenders had driven up. The pursuer's dwelling-house was situated on the side of a public road, and his workshop is separate, and at a short distance from it. The defenders informed the pursuer, immediately on his arrival, that they had a warrant against him; but they did not at this or any other time explain the nature of said warrant to the pursuer. At the time when the defenders informed the pursuer they had a warrant against him, they were all outside the house, and it was so dark that the pursuer could not have read the warrant. The pursuer did not after this demand exhibition of the warrant, because he did not doubt the statement by the defenders that they had a warrant of some kind; and he assumed that they could not exceed the limits of the warrant. After this the pursuer opened his dwelling-house, which the defenders entered, and a light was then procured. The defenders thereafter proceeded at once, and without further ado, to search the pursuer's writing-desk and the drawers which it contained. The defenders spent between one and two hours in ransacking the said writing-desk and drawers, and in reading and examining the MSS., books, letters, and papers which they found therein. The whole search made by them in the pursuer's dwelling-house consisted of the reading and examination of the pursuer's said books, letters, and papers. The pursuer is not aware whether the defenders ever made a search in his workshop."
To this statement the defenders have made the following answer :
“ Admitted that the pursuer was absent from his house when the defenders first arrived. Admitted that the pursuer's house is separate from his workshop. Admitted that the defenders informed the pursuer that they had a warrant; and explained that the defender, Bremner, produced it, offered it to the pursuer for his perusal, and explained to the pursuer its nature and contents. Denied that the defenders proceeded at once to search the pursuer's writing-desk. Explained that the defenders searched first other places likely in their opinion to contain wood or iron materials. Explained farther, that what the pursuer calls a writing-desk is a cabinet which had the appearance of a place where such things were likely to be. Quoad ultra denied.”
The Court held that the statements on record by the pursuer were not exclusive of the truth of the explanation given by the defenders, viz., that in the course of searching for the articles specified in the warrant they had accidentally come on certain documents which they thought it their duty to examine, and therefore dismissed the action, on the ground that there was no issuable matter on record.
M.P.-North OF SCOTLAND RAILWAY COMPANY v. MORTIMER AND OTHERS.
Feb. 1. Marriage-Contract—Provision--Vesting. By antenuptial contract of marriage, entered into in 1830 between Mr Ludovick William Grant and Miss Helen Anderson, Mr Anderson bound himself, his heirs, executors, and successors, “to lay out at the term of Whitsunday or Martinmas that should happen next after his death, or as soon thereafter as circumstances would permit, the sum of L.2000, taken payable to the said Helen Anderson and L. W. Grant, and the survivor of them, in conjunct liferent for their liferent use allenarly, and to the child or children to be procreated of the marriage, whom failing, to the nearest heirs and assignees of the said Alexander Anderson in fee." The deed also provided that the said “sum of L.2000 shall bear interest from the date of the said Helen Anderson and L. W. Grant's leaving the family of the said Alexander Anderson.” On 25th August 1831, a son, William Grant, was born of the marriage, who died in 1832, and there was no other child. Mr Anderson, the granter of the obligation, died in 1838, and was succeeded by his only son, James Andersen, as heir and residuary legatee of his father. Mr Anderson's (the son) estates were sequestrated in 1841, Mrs Grant died in 1862, and Mr L. W. Grant died in 1863, he having previously executed a trust-deed for behoof of his creditors.
The question raised in the present multiplepoinding is, whether the trustee on the sequestrated estate of Mr Anderson, the son and heir of the granter of the obligation, or the trustee for Mr L. W. Grant's creditors, are entitled to the said sum of L.2000, and that question depends on this other, whether the L.2000 vested in William Grant, Mr and Mrs Grant's son, in which case, at his death, it would be inherited by his father, and so now belong to the trustee for his creditors.
The Lord Ordinary (Mure) preferred Anderson's trustee to the fund, holding that it did not vest in William Grant, the only child of the marriage, in respect of his having died before the granter of the obligation, and therefore before it became enforceable.
The Court (Lord Ardmillan dissenting) adhered to the Lord Ordinary's interlocutor, though not adopting the grounds of his judgment. Their lordships held that, in the case of provisions in an antenuptial contract of
marriage, the presumption is always against their vesting in the children till the dissolution of the marriage, and this presumption will be given effect to, if not counteracted by something in the deed. The only circumstance in the present case opposed to this presumption was the payment of interest to Mr and Mrs Grant during their lives. This the Court thought was not in itself sufficient to overcome the ordinary rule.
Lord Ardmillan held that the granter of the obligation was divested of the fee of the L.2000 on the marriage,—that it then passed to Mr and Mrs Grant as fiduciary fiars for any children they might have, and on the birth of their son William, that the fee vested in him.
Pet., J. H. YOUNG.-Feb. 2. Recorded Deed—Authority to send to England for Production in a Suit
Refused. This is a petition by J. H. Young, merchant in Glasgow, praying the Court to warrant and authorise the Lord Clerk Register, or one of his deputies, to proceed to London with certain deeds recorded in the Books of Council and Session, and in the custody of the Lord Clerk Register, for the purpose of exhibiting them in the Court of Chancery, in England, as evidence in a cause depending there. The petitioner was not personally interested in the deeds, but it was proposed to use the parratives of the deeds in the English case, which involved a question of propinquity in disproof of certain allegations on which they threw light.
The Court refused the petition, holding that they were not warranted in authorising the transmission of the deeds to England, in respect it was impossible to guarantee that such a proceeding might not result in their destruction or loss, and the application was not at the instance of those having the sole interest in them.
SPINKS V. INNES. Bank Cheque-Fraudulent Impetration Intoxication. The summons in this case concludes for a decree against the defender for the sum of £100 sterling, being the principal sum contained in a bank cheque or draft, dated at Glasgow the 21st day of April 1864, drawn by the defender on the City of Glasgow Bank, and payable to the pursuer. It appears that the cheque, though dated Glasgow, was written and given to the pursuer in Ailoa, where both parties were on the day of its date. The following morning the defender telegraphed to Glasgow to stop payment of the cheque, and the present action has consequently been brought. The pursuer's allegation is that the defender, being indebted to him to the extent of £100, gave him the cheque or draft in question in payment of his debt, which consisted of “advances of money made and services rendered by him (the pursuer) to the defender at various times during a long course of years."
The defender's averment, on the other hand, besides a denial of his having been indebted to the pursuer, is to the effect that, when the cheque or draft in question was obtained from him by the pursuer, he (the defender) was in such a state of intoxication as to be utterly deprived of the use of his faculties; or, at any rate, that the pursuer taking advantage of his intoxicated condition, fraudulently impetrated from him the draft.