« 이전계속 »
the form of application was the correct one, but held that no title having been produced by the railway company, in virtue of which the possession for thirteen years had taken place, they were not entitled to a possessory judgment, and therefore, that the question raised was truly one as to regulating possession, which could competently be disposed of by the Sheriff.
MORRIS V. GUILDRY OF DUNFERMLINE.Feb. 16. Guildry-Rules interpreted by prior usage—Ques. whether Guildry can
make rules at variance with usage ? The pursuer in this action is a surgeon in Dunfermline. By the existing “Rules and Regulations for administering the revenue and managing the affairs of the Guildry of Dunfermline," which were approved of by the fraternity in 1852, it is provided that “sons and sons-in-law of Guild brethren,” shall be admitted to the Guildry on certain specified terms, more favourable than those applicable to “any individual having neither by birth nor marriage any claim or title.”
The pursuer admittedly married a daughter of Andrew Reid, a member of the Guildry. She died on 29th March 1862. In October of the same year the pursuer applied to be admitted to the Guildry, as the son-in-law of a Guild brother. He was refused admission in this character, on the ground that his privilege had been lost by the prior death of his wife.
The present action was brought for the purpose of having it declared that the pursuer was entitled to admission as a son-in-law.
The Lord Ordinary (Kinloch) held that the pursuer was a son-in-law of a Guild brother in the true sense of the rules of the incorporation, the death of his wife not having destroyed that character which previously belonged to him, and therefore decerned in his favour.
To-day, the Court recalled this interlocutor. They held that the regulations in question having only been entered into in 1852, and usage having been the only law of the Corporation prior to that date, the term “son-inlaw” in the regulations fell to be interpreted according to the previous usage. It appeared from the evidence led, that no application by the sonin-law of a Guild brother for admission to the Guildry, after his wife's death, had ever been either refused or sustained; but it also appeared that there had been many persons in that position at different periods, whose interest it would have been to enter the Guildry, but who had not done so; and further, that several sons-in-law had beer urged to enter during their wives' lives, in case the privilege might be lost by their deaths. The Court held that, in these circumstances, the preponderance of evidence was in favour of the view that, prior to the date of the regulations, and whilst the law of the Corporation was founded on usage, the general understanding had been that sons-in-law lost the privilege of admission, as such, by the death of their wives; and, that being so, that the term sons-in-law in the regulations, must be read in accordance with the previous understanding and usage. Their lordships had considerable doubt, though they gave no decision on the point, whether the Guildry could bave made any regulations at variance with the law of the Corporation as fixed by immeSwan v. PEACOCK.—Feb. 20.
Sequestration-Appeal. This was
an appeal by the trustee on the sequestrated estate of Walter Peacock, innkeeper, Lennoxtown, against a judgment of the Sheriff-substitute of Stirlingshire, reversing a previous deliverance of the trustee. A claim was made on the bankrupt's estate, by his sister, for L.139, Os. 3d., alleged to be due to her by virtue of an agreement entered into betwixt the bankrupt and his father and mother in 1837, whereby the father and mother agreed to relinquish and convey their business to the bankrupt, and he agreed, inter alia, to pay to his sister L.100, “as a suitable consideration for her byepast services in conducting the said business." This sum was to be paid at the expiry of five years, with interest, and on 8th July 1864, the bankrupt granted a bill to his sister in implement of this obligation. He was sequestrated on 220 August 1864. The trustee repelled the claim of the sister, and his deliverance was reversed by the Sheriff-substitute, against whose judgment the present appeal was taken.
The trustee maintained (1) that the bill was null under the Act 1696, c. 5, being granted to a conjunct and confident person, and that within sixty days of bankruptcy; (2), that the terms of the original agreement were not such as to constitute an onerous obligation; (3), that the stamp was insufficient.
The Court, without calling for a reply, adhered simpliciter to the Sheriff substitute's judgment, and dismissed the appeal.
Collow's TRUSTEES v, CONNELL AND OTHERS.—Feb. 23.
Entail-Destination–Trust Deed Construction, This is an action at the instance of the trustees of the late Gilbert Collow, Esq., to have it found and declared that two estates, called Auchenchain and Over Kirkcudbright, belong to them, in virtue of his trust-disposition and settlement, which conveyed to the trustees "all and sundry lands and heritages, goods and gear, debts and sums of money, and, in general, the whole estate, means and effects, heritable and moveable, real and personal, of whatever kind and denomination which shall belong to me at the time of my decease.” This trust-disposition was executed on 31st March 1859, and Mr. Collow, the granter, died on 7th March 1863. It is admitted that the granter held the estates in question under an entail, by which they were conveyed to a series of heirs, whom, all failing, to the entailer's “own nearest of kindred, and their heirs and disponees whatsoever.” At the date of the trust-deed one heir-substitute nominatim was in life, who was entitled to succeed Mr. Collow under the entail, and therefore there is no question that he had no power at that time to convey the entailed estates to his trustees. But it is also admitted that before Mr. Collow's death this heir-substitute died, and therefore the persons to take under the entail after Mr. Collow were the entailer’s “ own nearest of kindred, and their heirs and disponees whatsoever.” The trustees maintain that by the death of the heir-substitute under the entail, Mr. Collow acquired right to the two estates in fee simple, and that they therefore were conveyed to them under the general clause in the trust-deed. This claim of the trustees is opposed by two persons, each of whom claims the character of “ nearest of kindred" of VOL. X. NO. CXII.- APRIL 1866.
the entailer, and who therefore contend—(1.) That the destination of the entail was not extinguished by the death of the substitute who intervened between Mr. Collow and the “nearest of kindred,” and therefore that he had no power to convey the entailed estates to his trustees; and (2.) That even if he had the power it is clear from the trust-deed that he did not intend to do so.
The Lord Ordinary (Kinloch) adopted the latter contention without disposing of the former, and found that the trust-disposition and settlement did not, either in fact or in law, comprehend the entailed estates.
The Court, in substance, affirmed this judgment, but on the different ground, that the granter had not the power to convey the estates to his trustees. Their lordships held that the entail was at his death an effectual subsisting entail, the predilecta successio not having been exhausted by the death of the heir-substitute who predeceased Mr. Collow, as the ulterior destination to the entailer's "nearest kindred" was a sufficient designation of who was to be the next heir of entail. The whole of their lordships founded their judgments on the want of power in Mr. Collow to convey. At the same time, lest the case should be appealed,—and it might come to be of importance that their opinion should be known on the other question, viz., whether, assuming that Mr. Collow became fee-simple proprietor on the death of the substitute heir, his trust-deed conveyed the estates in question, they all, whilst thinking the question one of great difficulty, were of opinion, looking to the deed as a whole, that the truster intended to exclude the entailed estates from the general conveyance, and, therefore, that they were not conveyed.
M'Ewan v. MIDDLETON.-Feb. 23.
Option—Time within which to be declared. The pursuer and defender were partners as calenderers in Glasgow. The business was carried on in premises which belonged to the defender, and which were leased by him to the firm. They were burdened with considerable heritable debts. One of the loans over the property having been called up, the pursuer joined the defender in the security for a new loan, and, in consideration of this, the defender granted a deed to him containing, inter alia, the following clause :-"I bind and oblige myself, my heirs and successors whomsoever, to you and your heirs, that in the event of you and your foresaids exercising an option to that effect, and requiring me or my foresaids, at any time within five years from the date hereof, or upon the dissolution of our said copartnership, within the said period, and for payment as before expressed, to dispone and convey the subjects so acquired by me, to and in favour of myself, the said Lewis Stirling Middleton, and my foresaids, and John Thomson Henderson M'Ewan, equally, or your foresaids, betwixt us pro indiviso and our respective assigns," and so forth.
After a great deal of procedure before an arbiter appointed by the parties, the partnership was declared to be at end by a decree-arbitral, dated 11th December 1862. In one of the papers lodged by the pursuer before the arbiter he had stated that it had long become obvious that he would never exercise the option of requiring a conveyance of one half of the heritable subjects; and on 22 January 1863 the defender's agents in Glasgow, wrote to the pursuers' agents, that they understood Mr. M Ewan had waived
his right to take a half of the subjects, and if they did not hear to the contrary, in the course of the following day, they would proceed on that assumption. This letter was not answered till the 27th January 1863, when the pursuer himself wrote that he had been so busy he had not had time to look into the matter, but would give it his attention as soon as possible. On 28th January 1863, the defenders' agents replied that as he had failed timeously to exercise his option, he had lost the right to do so. On 30th January 1863, the pursuer replied that he did not agree with this view, and so the matter stood. The defender having ultimately sold the property at an unexpectedly high price, the pursuer, on 2d March 1863, wrote, exercising his option to take a half of the property, acquiescing in the sale, and claiming £760 as one half of the surplus price. The present action was to enforce this claim.
The Lord Ordinary (Jerviswoode) assoilzied the defenders.
The Court unanimously adhered to the Lord Ordinary's interlocutor,holding that under the deed of obligation the punctum temporis at which the option fell to be exercised was the dissolution of the partnership,—that it was not necessary that it should be exercised on the very day of the dissolution, but within a reasonable period. That looking to the proceedings before the arbiter, and subsequent correspondence, the pursuer appeared to have intended, not to take a half of the property until after he heard of the favourable sale, indeed one of his statements on record acknowledged as much, and they were of opinion he was not entitled then to change his mind.
ORMiston v. RIDPATH, Brown, & Co.-Feb. 23. Damages—Oppressive Action—Trade Protection Society. The pursuer in this case sues the defenders for damages on the ground that, within a short time after a debt which he owed them was paid, he was served with a summons concluding for it, under which a decree was obtained, on which he was charged for payment. The defenders were not the active parties in these proceedings, although they were in their names, the matter having been entrusted to the Scottish Trade Protection Society. It was not disputed that the debt had been paid to this society a short time before the summons was served, but it was said that the whole thing was a mistake, in consequence of the business of the society being conducted in different departments, and the clerk who ought to bave recorded the payment having overlooked it.
To-day the Court dismissed the action on the ground that there was no issueable matter on record.
The Lord President, after detailing the facts of the case, said he had no idea that a society like the Scottish Trade Protection Society could, by sub-dividing its work and carrying it on in different departments escape responsibility. It had no right to say that one hand did not know what the other was doing; it was just as responsible as if it were one person. It was clear the pursuer had great cause to be dissatisfied with their proceedings. It was great carelessness, and not very excusable neglect, which led to the action being brought into Court. The society had existed for some time, and his lordship believed its object was a good one, and if such a society were conducted in a careful and prudent manner it might be pro
ductive of much convenience and benefit as protecting the honest from the fraudulent? But, on the other hand, if conducted in a careless or negligent manner, instead of being beneficial it became positively evil and mischievous. His lordship did not say this society was in that state, but when an instance like the present was brought under notice, he thought it only right to give them this caution. But the question now to be determined was whether the issue was to be granted. He had great difficulty in granting one. He did not say that a person who was harassed by unnecessary, or, still more, by wrongful action, had not the power to obtain redress, and that in the form now sought; but he thought there was here a want of statements to construct a legal claim for damages. Some of the defences were extravagant. For example, it was said the pursuer should have reduced the decree, or have applied for a re-hearing. But there were some things which his lordship thought the pursuer should have done, and which he did not do. did not give any valid reason for not going to the Court the day the action was brought. He might have a good reason, but if so, he had not stated it. He simply said that it was inconvenient for him to do
Again, he did not aver that these proceedings of which he complained were taken in the knowledge that the money had been paid, and it was a very different thing to issue a summons of this kind in ignorance from what it would have been, had there been knowledge expressed or implied. On the whole matter he did not think that the conduct of the society was excusable, and some of their pleas were clearly bad, yet he was of opinion there were not sufficient averments to warrant the granting of an issue. The Court accordingly dismissed the action, but found neither party entitled to expenses.
THE BRITISH FISHERIES SOCIETY V. HENDERSON.—Feb. 27.
Police Assessment. This is a note of suspension and interdict, at the instance of the British Fisheries Society, incorporated by Act of Parliament, against the treasurer to the Commissioners of Supply for the County of Caithness and collector of assessments imposed by them under 20 and 21 Vic., c. 72. The complainers pray for the suspension of a warrant by the Sheriff-Substitute of Caithness, dated 3d October 1864, for poinding their goods in payment of a police assessment for Pulteney Harbour. The ground of suspension is that the complainers, having the power, under certain private Acts of Parliaments, to appoint constables for Pulteney Harbour of their own, and having done so, they are impliedly,' through these enactments, exempted from all liability for assessment under the General Police Act.
The Lord Ordinary (Lord Jerviswoode) refused the note of suspension, holding that there was no statutory provision in the Acts founded on by the complainers adequate to secure to them the exemption claimed; and further, that although in respect of local causes the Legislature had conferred special powers on the complainers to keep up a constabulary of their own within certain limits, it did not follow from that that they were in consequence to be exempted from the more general county assessments.
The complaimers having reclaimed, to-day the Court adhered to the Lord Ordinary's interlocutor without calling on the respondent's counsel.