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A proof having been led by both parties, the Lord Ordinary (Ormidale) held (1) that no value had been given by the pursuer to the defender for the cheque ; (2) that when the cheque was obtained the defender was in such a state of intoxication from excessive drinking as to be easily imposed upon and taken advantage of; and (3) that the pursuer having taken advantage of the defender when in that state had fraudulently impetrated from him the draft. His lordship therefore assoilzied the defender.
The Court unanimously adhered. They held that the right of the pursuer to succeed in the present action depended on whether he had established his allegation that the cheque was granted in payment of a debt due to him by the defender. It was not averred that the cheque was given as a donation. They were of opinion that the proof, so far from establishing the debt, disproved it, and therefore, that the Lord Ordinary's interlocutor should be adhered to. They were of this opinion apart from the matter of the defender's intoxication when the cheque was granted. It appeared that a great deal of drink had been taken by the parties on the day in question, but it was a difficult question what was the precise degree of intoxication which relieved a person from liability for obligations undertaken by him. It might involve consideration of the amount and character of the drink, and of the temperament of the individual. Smitu v. Tue EDINBURGH AND GLASGOW RAILWAY COMPANY.—Feb. 3.
Railway Company-Amalgamation Act. This is an action concluding for £3000 in name of damages and solatium for injuries sustained by the pursuer on 27th May last in a railway accident which occurred on that date at the junction between the railway from Milnyavie and the railway between Glasgow and Helensburgh. The defenders pleaded that the action was incompetently directed against them, in respect of their amalgamation with the North British Railway Company, which took place on 1st August 1865.
The Lord Ordinary (Ormidale) repelled the plea, and sustained the competency of the action as law.
The Court (Lord Deas dissenting) adhered. The majority held that the cause of action having occurred prior to the amalgamation, and the Edinburgh and Glasgow Railway Company being still in subsistence (under the Acts regulating the amalgamation) as a separate company for the collection of outstanding revenue, and the payment of debts chargeable thereagainst, ---and the claim in question being a claim falling to be liquidated out of the revenue of the old company, an action for constituting it was properly directed against the present defenders.
Lord Deas dissented, on the ground that a claim like the present was not necessarily limited to the revenue, but might be chargeable against the capital, and the whole capital of the Edinburgh and Glasgow Railway Company having been transferred to the amalgamated company, they were the proper parties to call in the present action.
Pet., Mrs. ELIZABETH AUCHTERLONIE OR KENNEDY.—Feb. 3. Conjugal Rights Act-Protection of Wife's Property-Desertion. This was a petition under the Conjugal Rights Act at the instance of a wife for the protection of property acquired by her during the alleged
desertion of her husband. In 1849 the petitioner married Robert Kennedy, who was a shore porter in Dundee. At the time of the marriage the petitioner was a widow, and Kennedy a widower. Both had families, three of whom still reside with the petitioner, as well as a child of her marriage with Kennedy. In 1852, Kennedy, with his wife's consent, went to California, in the hope of increasing his means, and for two and a half years corresponded with his wife. From 1855 to 1863 there was no communication between them. In 1863 Kennedy wrote to his wife, expressing great affection for her and his family, and attributing his long silence and continued absence to reverses of fortune which he had encountered. In July 1864, before the present petition was presented, Kennedy wrote to his wife that he was to sail for home next day, and enclosed a bank bill for £180. He arrived at home two days after this remittance, and has continued to reside with his wife ever since, and does so now. During her husband's absence the petitioner supported herself and acquired by her industry some property, and it was for the protection of this property that the present petition was presented. The Conjugal Rights Act makes it competent for a wife deserted by her husband to apply to the Court for an order to protect against her husband and his creditors any property she had acquired by her industry, or succeeded to during her husband's desertion. The question, therefore, in the present case was whether the petitioner had been deserted by her husband.
The Court held (affirming the judgment of the Lord Ordinary), that desertion in the Conjugal Rights Act meant wilful desertion with a view to avoiding cohabitation, and as the absence of the husband was originally with the consent of the petitioner, and for the purpose of benefiting her and the family, and nothing had occurred sufficient to convert an absence so begun into desertion in the sense of the Act, the petition ought not to be granted.
Div., Mary M'Lean or Bonak v. Alex. BOWMAN.— Feb. 7. Divorce on the Ground of Desertion-Circumstances in which Refused.
In this action Mrs. Bowman sued for divorce on the ground of desertion. In 1856 she was married to the defender, who is furth of Scotland, and who does not defend the action. After the marriage the parties lived together as husband and wife for about two years, when the pursuer, in consequence of intemperance and maltreatment on the part of the defender, left his house and returned to live in family with her father, with whom she has resided ever since. In April 1860 the pursuer obtained, in the Sheriff-Court, Glasgow, decree for certain sums of aliment and expenses against her husband. No part of said aliment or expenses was paid by the defender, and since its date he had broken up his establishment and disappeared from Glasgow, where he had previously resided. The pursuer has not since heard from him nor has she been able to ascertain where he resides, or whether he is in the country, but it is generally believed by his friends that he is abroad.
The Lord Ordinary (Ormidale) found that in law the pursuer is not entitled to a decree of divorce, there being no evidence that after she left her husband's house she was willing to return, or offered to adhere. The Court adhered to this interlocutor. Their Lordships held that the
remedy of divorce by the law and practice of Scotland proceeded on the assumption of the party applying for it being willing to adhere. Accordingly, the Scots Act 1573, cap. 55, provided that various preliminary steps, with a view to adherence, should be taken before the action of divorce could be brought. Although these steps might not now be necessary, having been expressly dispensed with by the Conjugal Rights Act 24 and 25 Vict., cap. 86, sec. 11, yet that the principle and theory of the law of Scotland remained the same. The remedy of divorce was, in our law, not for desertion, but for non-adherence. A case of great importance might be raised in circumstances similar to the present, where the wife was compelled to flee from her husband's house for protection, but that in the case before the Court the facts were scantily proved, and did not raise the important point pleaded for the pursuer, which the Court were not therefore called on to decide. They found that the proof adduced did not bear the interpretation that the pursuer had been willing to adhere and live with the defender as his wife since the time when she left him in 1860, but what proof existed rather showed that she was not willing to return to her husband. She had her remedy by an action of separation and aliment, and in this case, where the onus of proof lay on the pursuer herself, and she had failed to prove her readiness to adhere, she could not obtain the remedy of divorce, at all events on the proof as it stood. In referring to the authorities founded on by the pursuer, the Court declined to be guided in their interpretation of our Scots Acts 1573, cap. 55, by the interpretation of it, or of desertion, by American writers, and they remarked that, in England, divorce, as a remedy for desertion, was coupled with other things, and was made a ground of divorce by quite a recent statute. The remedy of divorce with us was given, not for desertion, but for non-adherence, and had been a ground of divorce for three centuries; and it was remarkable that, notwithstanding, -it was admitted for the pursuer that there was no precedent in our law showing that this remedy was ever sought for or obtained in such circumstances as this case disclosed.
The CROWN v. MATHESON.-Feb. 8.
Crown Charter-Reddendo. Mr. Matheson, of Ardross, in July last, gave in a note for a Crown charter of, inter alia, the lands of Deluy in the county of Ross, lodging at the same time a draft of the proposed charter, which contained a reddendo clause in the same terms as in the five preceding Crown grants of the same subjects in favour of his authors. The proposed clause, besides obliging the vassal to pay to the Crown a specific duty of 6s. 8d. Scots annually, and £39, 8s. 4d. Scots at the entry of each heir, contained the following obligation of relief: “And relieving the heirs and successors of the late Earl of Cromarty of all feu-farms and feu-farm money, customs, augmentations, and grassums, payable from the said lands as proprietor of the Earldom of Ross, and which feu-farm duties, customs, augmentations, and grassums have been hitherto annually payable and paid to the Royal Treasurer of the county of Ross." The Crown now contended that this was a general reddendo, and as such struck at by an order issued by the Barons of Exchequer in 1802, forbidding the insertion in Crown grants of general reddendo clauses without the express authority of the Court, and therefore proposed to substitute for the
obligation of relief a direct obligation on Mr. Matheson to pay the duties chargeable in respect of the lands of Deluy, and actually standing at this moment in the titles of the Duchess of Sutherland, the present representative of the 'Earls of Cromarty, whom Mr. Matheson admits his liability to relieve. To this Mr. Matheson objected—(1) That the proposed reddendo was not struck at by the order of 1802, inasmuch as it was sufficiently specific, the obligation of relief in no true sense forming a part of the reddendo clause ; (2) That the Barons of Exchequer in 1826 and the Presenter of Signatures in 1854, by passing charters containing reddendos precisely similar to that in the draft, had admitted that this reddendo is not one to which the order of 1802 applies ; and (3) That at all events the present summary process was not one in which this question could competently be raised -parties being at issue as to the duties payable in respect of the particular lands, and the Duchess of Sutherland, whose interests might be most materially involved, being no party to the process.
On 230 December last the Lord Ordinary (Ormidale) refused a motion by the pursuer to have certain specified duties inscribed in the reddendo clause of the charter.
The Court adhered to this interlocutor, reserving to the Crown, if so advised, to have their rights declared in a competent action in which all parties interested should be called.
THE UNIVERSITY OF ABERDEEN v. IRVINE.- Feb. 8. In 1629, Alexander Irvine, then of Drum, an ancestor of the defender, executed a last will and testament containing, inter alia, the following provision
“For the maintenance of letters, by their presents, I leave, mortify, and destinate ten thousand pounds Scots money, which is now in possession and keeping of Marion Douglass, my spouse, all in gold and weight, appointed for the use underwritten, of her own knowledge and most willing consent, to be presently delivered to the Provost, Bailies, and Council of Aberdeen, and to be bestowed and employed by them upon land and annual rent in all time hereafter to the effect after following, to wit, £320 of the annual rent thereof to be yearly employed hereafter on four scholars at the Grammar School of Aberdeen for the space of four years, ilk ane of them fuurscore pounds; and £400 to be paid yearly to other four scholars at the College of New Aberdeen, and students of philosophy thereat, ilk ane of them ane hundred pounds during likewise the space of four years; and also I ordain to be given to other twa scholars who have passed their course of philosophy, being made Masters, and are become Students of Divinity in the said New College, 400 merks Scots money, viz., to each one of them 200 merks of the said annual rent during the space of four years also; and the odd 20 merks, which, with the dedications above specified, complete the said haill annual rents of £10,000, I ordain to be given to any man the Town of Aberdeen shall appoint for ingathering and furthgiving of the said annual rent to the said scholars, as is above designed; which scholars, of the kinds above written, I will and ordain yearly, in all time hereafter, be presented as my said executor, as my heir, and his heirs and successors
, Lairds of Drum, to the Town of Aberdeen, Provost and Bailies thereof, and their
successors, who shall be holden to receive them yearly upon their presentation, and shall stand obliged and compatible for the said annual rent to be employed as is above appointed in all time coming."
The testator died soon after executing this deed, and was succeeded by his son Sir Alexander Irvine.
When this legacy was communicated, on the testator's death, to the magistrates of Aberdeen, they declined to receive and administer it, on the ground, as stated in their minute of 9th May 1630, that they thought their doing so would make them liable for the sum of L.1000 Scots of yearly interest in all circumstances. And they requested the widow “to deliver the said L.10,000 to Sir Alexander Irving, now of Drum, his son, upon his acquittance to be given thereupon to her; to the end he may ware the same on profits to the use foresaid whereunto the same was destinate and left, and be comptable and answerable therefor, till such time as the Council and he may agree on reasonable conditions thereanent."
In 1633, Sir Alexander Irving brought an action in the Court of Session against the magistrates and various other parties, concluding, amongst other things, to have it found and declared "that it shall be leisome to the said complainer to ware and bestow the said sum of L.10,000 upon buying of land therewith, upon such easy prices and conditions as may be had therefor; and the said lands to be bought therewith, maills, farms, and duties of the same, to be mortified and destinated to the use of the said four scholars,” &c., proportionally and pro rata, effeiring to the quantities of the annual rent of the said sum appointed to be paid to them by the said testament in case the said provost, bailies, and council of the said burgh of Aberdeen had received and employed the said sum for annual rent according to the said testament; and the yearly rent, profits, and duties of the said lands to be bonght and conquest with the said sum, to be in place and satisfaction to the said ten scholars of the annual rent and profits of the said sum in all time coming." The summons contained a reservation of the right of presentation, and concluded that, on land being bought to the effect mentioned, the pursuer should be discharged of all liability for the sum in question.
A decree was pronounced, on 27th February 1663, in this action, in absence, ordaining Sir Alexander Irving to have retention of the money without interest till Whitsunday 1610," at the which term decerns and ordains the said pursuer to provide for the use of the said ten scholars and bursars of the college and schools of New Aberdeen sufficient well-holden lands for employing of the said sum of L.10,000, worth in yearly rent to the sum of L.1000 money, which lands shall be bought and acquired by him heritably, without reversion, to the use and behoof foresaid, against that term, without further delay, according to the destination and mortification of the said Laird of Drum, and his mind specified in his latter will.”
The mode in which Sir Alexander Irving gave obedience to this decree was, to mortify certain lands belonging to himself, including those of Kinmuck and others now in question, for the intended object, these lands being valued at the yearly rental of L.1000 Scots. This he did by his bond and deed of mortification (of which an extract from the Books of Council and Session is produced), bearing date 12th April 1656, and proceeding on a narrative to the above effect. On this narrative the deed declares :