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DEWAR v. PEARSON AND JACKSON.–Feb. 27.
Reference to Oath—Competency of. The Act 16 Vict. c. 20 sect. 5 provides that “the-adducing of a party as a witness in any cause or proceeding by the adverse party shall not have the effect of a reference to the oath of the party so adduced : Provided always that it shall not be competent to any party who has called and examined the opposite party as a witness thereafter to refer the cause or any part of it to his oath."
To-day the Court held, construing the foregoing enactment, that, where a cause consists of two parts, one of which can be proved only by writ or oath, and the other pro ut de jure, it is competent to refer the former part to the oath of the adverse party who has been already examined as a witness in causa in regard to the other.
SECOND DIVISION. INSFECTOR OF BARONY PARISH V. INSPECTOR OF DAILLY PARISH-Feb. 9.
Poor-Law Amendment Act, § 71—Notice-Mora. This was an action of relief for the maintenance of a pauper belonging to the parish of Dailly. The pauper became chargeable on Barony Parish in February 1853. Notice was given to Dailly in August of the same year. In February 1854, she ceased to be chargeable, but became so again in November 1855. No new notice was given till 1860. The Lord Justice-Clerk-The defences stated are want of notice and
The account begins in 1853, and terminates in 1854. No statutory notice was given to Dailly till 24th August 1853. The pauper got aliment from August 1853 to February 1854, but nothing afterwards for twenty months, till November 1855; and this is an important element in the case. It is averred and admitted that during this period no aliment was furnished by Barony Parish, because the pauper had ceased to be a proper object of parochial relief. The question is, whether another notice was necessary in order to
the recourse. We must give a fair interpretation to the 71st clause of the Act, which provides that in all cases written notice of such person having become chargeable must be given. I do not think notice is required after every break in receiving aliment. A person may be a month out of the workhouse without ever being restored to the position of a person of industry. But, on the other hand, I cannot adopt the pursuer's argument, that a notice once given lasts for the life of the person who had become chargeable. It was urged that there was no intelligible middle course; but I think the general rule may be laid down that, wherever it can be fairly and distinctly alleged that for a considerable time a person has ceased to be a proper object of relief-has become selfsupporting—that if he again comes upon the parish, he is, in the sense of the Act, a poor person who has become chargeable; and I think notice was indispensable in this case. That defeats the claim between November 1855 and 1860, when notice was given. For the remaining periods the only defence is mora. It was said there couid be no mora, because the parish, when called upon, repudiated its liability. But that must always be the case. But upon the question whether in the circumstances of the case there
is foundation for the plea of mora, I am of opinion that there is not. There is nothing but the mere lapse of time, and that has never been held sufficient.
The rest of the Court concurred.
Feb. 23. Joint Stock Company-Contributory—Trustee-Transfer. Colonel Graham suspended a charge upon a decree, obtained in a summary application by the liquidators of the Western Bank against him, as a contributory in his character of sole surviving trustee under the marriage contract of Mr and Mrs E. D. Sandford. 'The Lord Ordinary (Mure) passed the note, holding there was here a separate question, differing from that decided in Lumsden v. Buchanan, 22d June 1865, and requiring investigation on a passed note-viz., whether all the debts of the bank having, as was alleged, been already paid off, the liquidator could now take proceedings under the decree. The decree was pronounced without inquiry in a petition under the 19 and 20 Vict. cap. 47, sec. 104, art. 6, authorising the liquidators “to call on any of the contributories to the extent of their liability, to pay all or any sums they deem necessary to satisfy the debts of the company and the costs of winding it up.” It was also maintained that Colonel Graham, having never signed the contract, but only the transfer, was in the same position as Dr Buchanan, who was assoilzied by the House of Lords; and further, that the charge on the suspender was to pay in solidum, while the decree represented him as jointly liable, along with other parties.
The Lord Justice-Clerk said—I should be sorry to pass the note of suspension, except on some relevant allegation. It is the policy of the Act to make the recovery of a call a very summary proceeding. The difference between this case and that of Lumsden is said to be, that the suspender has not subscribed the contract of copartnery, but only accepted and transcribed a transfer. I have no doubt the legal effect of both is the same. The two gentlemen who accepted expressly adopted in the transfer the provisions of the contract of copartnery. In the second place, it is said that the liquidator cannot enforce this decree, because the circumstances are changed, and all the debts in the company are paid. That is admitted by the respondent, with the qualification that at least he is in funds to do so. The question whether the decree can be made available for purposes of contribution, apart from the payment of debts, depends on 21 and 22 Vict. cap. 60. Section 5 is made applicable by section 14 to a voluntary winding-up. And in section 5, the decree is not restricted to cases where the debts are unpaid. It is as important an object to equalise the liabilities of the contributories as to provide for the payment of creditors. There remains a third plea. The decree proceeds upon a petition which contains a list of contributories, and the decree refers to that list. Colonel Graham, the suspender, is represented as jointly liable with other persons. The objection is, that the decree is not against these gentlemen jointly and severally. It is remarkable that only one of the gentlemen who signed the transfer appears in the decree, and the charge upon him is to pay in solidum. This is a much more difficult question than the other two, and I think we must pass the note for the purpose of trying that question.
The other Judges concurred.
TAYLOR v. MITCHELL.— Feb. 27.
Partnership--Reference to Oath—Bill Chamber. Suspension refused of a charge by one partner against another, although the affairs of the company and the accounts of the partners inter se were still unsettled, on the ground that the debt charged for was truly the price of the suspender's admission into the concern. A reservation of the suspender's right to refer the whole cause to the charger's oath was in. serted in the interlocutor, remitting the cause back to the Bill Chamber.
MACALISTER v. MACALISTER.Feb, 28.
Lease-Warrandice---Damages. The trustees of Macalister of Strathaird granted in 1834 a lease in favour of Jessy Macalister, a daughter of the testator, and Duncan Macalister, her husband, and the longest liver, whom failing, to their son Norman, and his heirs and assignees, for thirty-eight years, at the rent of £10. Duncan, his wife being dead, sublet, in 1842, for the twenty-eight years remaining of his tack to a younger son, Archibald. The Court found, after a long litigation (220 February 1859, 21 D. 560), that the sub-tack was ultra vires of Duncan, who had only a liferent interest in the tack. The representatives of Archibald now insisted against the representatives of Duncan for damages incurred through the eviction, founding on the obligation of warrandice in the sub-lease. The sub-tack was granted “for all the days, years, and space of twenty-eight years, being the remaining years still to run of the tack," &c., and contained the clause following:
“ In the peaceable possession of which subjects hereby subset, the said Dr Duncan Macalister binds and obliges himself, his heirs and successors, to maintain and defend the said Archibald Macalister and his foresaids during the space foresaid, at all hands, and against all deadly, as law will." The Lord Ordinary held that Duncan acted on the assumption that he had an absolute right of tenancy, and had granted warrandice accordingly, and that his representatives were liable for damages. The Court adhered, the Lord Justice-Clerk remarking that clauses of warrandice are of very stringent obligation. Duncan, conceiving himself to have a larger right than he really possessed, or from some other motive, granted a sub-tack to Archibald. This sub-tack was said to be gratuitous. His Lordship was inclined to doubt this. The sub-rent was nearly double the original rent; and again, when a father makes over to a son a lease of this kind as a kind of provision, and thereby leads him to adopt the profession of a farmer, bis Lordship doubted whether such a grant could be regarded as altogether gratuitous, even independently of the obligation to pay a higher sub-rent. Even assuming it to be gratuitous, the words " for the space foresaid" in the clause of warrandice, could refer only to the space of twenty-eight years. This was not a question of implied warrandice. If it had been so, and the deed were shown to be gratuitous, then it might have been held warrandice from fact and deed only. Stair and Erskine show that wherever warrandice is implied you are to be guided as to its extent by the nature of the right conveyed; where it is express, you are to be guided by the terms of the warrandice only. If a man with his eyes open, knowing the nature of the deed he is executing, and knowing it to be gratuitous, does bind himself in absolute warrandice, the obligation is to be enforced against him according to its letter. Hence it was not relevant to inquire whether Dunean had, or conceived he had, a complete right or not to the tack for the whole twenty-eight years still to run.
HOUSE OF LORDS. LEITE Dock COMMISSIONERS, v. MILES, INSPECTOR OF NORTH LEITH. (In Court of Session, June 17, 1864, 2 Macph. 1234.)
Poor-Assessment—Harbour-Res Judicata. This was an appeal in an action raised by the Inspector of the Poor of the Parish of North Leith against the Commissioners. The pursuer sought to have it declared that their wharves, harbours, docks, warehouses, &c., are assessable to the support of the poor. The assessment in North Leith had for many years been imposed one-half on owners, and one-half on occupiers. The annual value of the Commissioners' property in the parish was estimated at £27,000, and the assessment for 1861 amounted to £2000; but they claimed entire exemption.
The defenders set forth that the property had been vested in them by Acts of Parliament, and that they had no beneficial interest whatever, but held it for the benefit of the public, and applied the whole revenues to the purposes specified by the statute. In 1830 and 1847, similar actions had been raised against them or their predecessors; and the Court held that they were not liable, except, in the latter case, to the extent of a sum of .£7680, then payable by them to the city of Edinburgh, under a statute. The Commissioners appealed against that judgment, so far as related to the £7680, and the House of Lords altered the judgment (2 Macqueen, 28).
In this action the Lord Ordinary, and the First Division (Lord Curriehill diss.), held the Commissioners liable to assessment, and they appealed. In argument, the appellants endeavoured to distinguish their case from those of the Clyde Navigation Trustees and the Mersey Docks Commissioners (3 Macph., House of Lords, 100), decided last summer, maintaining that the former case as to the Leith Docks was res judicata, that, at all events, these Docks came within the exception left by the decisions of last year in favour of property held for public purposes connected with Govern. ment, and that, at least, some of the dues were not assessable. The Lord Advocate, in the course of argument, maintained that in Adamson v. Clyde Trustees there was no appeal to the House against the decision of the Court of Session relating to the Clyde Harbour itself. Therefore, the House had not yet decided that a harbour is a rateable subject. A barbour is not enumerated among the things stated by the Scotch Poor-Law Act to be assessable. It was not land in the strict sense, but was a jus publicum. It was an incorporeal right, and could not be included in the corporeal property enumerated in the Poor-Law Act.
The Lord Chancellor (Cranworth)—The point as to whether the trustees or commissioners of a harbour are rateable to the poor was fully argued before the House last year; and certainly the opinion arrived at was, that the trustees were liable to be rated to the full extent of their receipts or profits over and above expenditure. I do not wish to stop you from trying to make out
some distinction between the Leith Docks and the Mersey Docks. It may be that you have grounds for that contention. Still, it is not on the principle that the harbour itself was not included in the Mersey case; for it was there clearly included, and what was decided was, that all these commissioners or trustees are rateable for the receipts coming to their hands, and that these receipts were to be deemed as profits, no matter whether the trustees were bound by statute to apply them to some specified purpose or not.
The Lord Advocate then argued that part of the money received by the Leith Dock Commissioners consisted of £7680, applied to the payment of the ministers of Edinburgh, in lieu of an old duty of a merk per ton, and that the House, in 1854, expressly decided that the appellants were not liable to the extent of that sum. In fact, the appellants were merely trustees as to that sum, and they applied the money for a charitable purpose. The judgment of the House in the Mersey case last year expressly left untouched the case of public charities.
The Lord Chancellor-- We did not expressly decide last year that public charities were rateable to the poor, because that case was not before us; but probably the principle would extend to charities. The old theory on which charities were held exempt from poor-rates was, because it was said there was no occupier; but it was, I think, laid down in the Mersey case that in all such cases the trustees or managers are the occupiers, and therefore rateable as such,
The Lord Advocate-I certainly was not aware that it was considered that the Mersey case, which was decided last year, would rule the case of charities. Several years ago the Court of Queen's Bench expressly held that the buildings of Oxford University were exempt from poor-rate.
The Lord Chancellor— That was before the late decision in the Mersey case. Possibly you may make out that University buildings are in possession of the Crown. I say nothing as to that case ; all I say is, that if the case of a University comes within the principle of the Mersey case, then it must now be ruled by that principle.
Counsel for the respondents were not called upon.
The Lord Chancellor said that this was a question of great importance ; yet, after the elaborate examination which the same question received last year before their Lordships, it was not now attended with any difficulty whatever. An attempt had been made to distinguish the present case from that of the Mersey Board in three particulars; and it was well enough that the subject should have been brought before the House, because it could not be concealed that from time to time all the Courts of the country had gone wrong on this subject. He would not say that the House bad ever decided the matter wrongly; for the cases had never come directly before the House. But all the Courts, and the greatest of modern judges, including Lords Mansfield, Kenyon, and Tenterden, had been under the error that public trustees and commissioners could not be rated in respect of the property yested in them, if they did not beneficially occupy it. That point was solemnly raised at last in the case of the Mersey Board ; and, after an elaborate investigation of the whole subject by the House, it was finally decided that the trustees of these harbours, docks, and similar kinds of property, were rateable to the poor, in respect of their receipts derived from the property. That was so held on a correct construc