Page images
PDF
EPUB

of kinship for a distant member of the race led to the first Turkish siege of Vienna. The writer who draws attention to it in his account of the Slavonians in Turkey, and who is himself a Lekh, affirms his conviction that this feeling of Slavonic brotherhood is stronger than it has ever been. Recent events seem to prove that his conviction, formed more than twenty years ago, was based upon an accurate knowledge of the sympathies of his race, and that it is even more true at the present day.

Meanwhile, we seem, as M. Rolin-Jaequemyns forcibly urges,* to have reached the critical moment when “the world has to learn whether International Law possesses in the Great European Powers an impartial organ, ready to take up what must otherwise appear the hopeless cause of Humanity, Civilisation, and Justice.”

VII.-SELECT CASES: SCOTLAND.
By Hugh BARCLAY, LL D., Sheriff Substitute, Perth.

[The following decisions in the Supreme Courts of Scotland (Courts of Session and Justiciary) involve questions of general import, not limited to any peculiarity in Scotch law or practice.]

County Franchise. (1) A rock or craig in the Firth of Clyde was let for a term of years to two joint tenants at £30 per annum: there was a cottage thereon worth £7 1os. The rock was totally incapable of agricultural occupation. The tenant “ had right to shoot, kill, and carry away fowls, goats, and rabbits from the craig.” The tenants were entered in the Valuation Roll under the 17 & 18 Vic. c. 91, s. 34, as voters at £30 a year, as “joint tenants, land, Ailsa Rock.” An objection to the joint tenants' right to vote was sustained by the Sheriff, but reversed by the Judges of Appeal (Lords Ormidale and Craighill), and the vote admitted. The majority held that the Valuation Roll must rule the case. Lord Ardmillan dissented, holding that “the privilege of killing the wild sea birds, which are not game and not property, cannot sustain the claim." Nov. 1, 1875. Girvan v. Campbell, 3 Session Cases, 1.

* Revue de Droit International, ut supra., p. 385.

(2.) Held under the Reform Act, 1868 (31 & 32 Vic. c. 48, S. 13,) that successive ownership of different premises, but merely civil possession during the requisite period, of either property, did not afford a qualification for a vote in a county. The Sheriff sustained the objection, and his judgment was affirmed on appeal. Lord Ormidale regretted the decision, but in respect of the distinction made in the 13th clause of the Act, 1868, he concurred with the other two judges in repelling the claim to vote. Nov. I, 1875. Learmont v. Young, 3 S.C. 5.

[ocr errors]

Burgh Franchise. (1.) Held that occupancy of one house in a burgh, combined with occupancy in immediate succession as owner of another house in same burgh, gave a qualification for the burgh franchise when the combined occupancy extended over the requisite period.-Nov. 1, 1875. Hannah v. Dodds, 1 S.C. 7.

(2.) A voter was struck off the Roll by the Sheriff, because of non-payment of poor-rates. Held that notice of the assessment was sufficient, though no demand note in the form of Schedule C. had been served on him. The Sheriff rejected the claim. The Appeal Judges affirmed his decision.—Per Lord Ardmillan, “ The question is - Is the use of the English term, demand note,' to introduce any change into our practice, so as to make a new and separate notice necessary ? I think not.”—Nov. 1, 1875. Mackenzie v. King, 3 S.C. 8.

Joint Stock Company, 25 & 26 Vict. c. 89. A liquidator of a Joint Stock Company in Scotland became resident in England. He asked decree against parties in default of payment of calls. A doubt was expressed if he was entitled to such decree, seeing he was no longer resident in Scotland. Decree granted. —Per Lord President (Inglis) : “If this had been an English Company with an Englishman as liquidator we should

not have hesitated in giving decree against Scotch contributories.”—20 Oct., 1875, Robertson, 3 S.C. p. 17.

Extrinsic Evidence to explain a Settlement. A domiciled Englishman died leaving heritage both in England and Scotland. He left a will in the English form. A special case was submitted to the second division of the Court of Session on the question whether the Scotch estate was settled by the will. Extrinsic evidence was offered in explanation of the testator's intentions. Per Lord Justice Clerk (Lord Moncrieff): “ In regard to these writings I think there is a distinction. I do not think that writings prior to a settlement have, so far as I know, ever been admitted to construe the words used in a settlement, for very obvious reasons. The declarations of a testator after he had executed his deed are of considerably more importance, for he certainly is the man who knew best the meaning of the words he had used, and if the best witness says he meant one thing it is a strong thing for a court of law to say another."-3 Nov., 1875, Farquhar, 3 S.C. 71.

Writ-Subscription to Will. Held that it did not invalidate the subscription of the maker of a deed that he was assisted by having his hand held above the wrist, but not being led in the formation of the letters. The Lord Ordinary (Curriehill) held the deed to be bad. The Second Division reversed, and Held the deed to be good.- Per Lord Ormidale: “I think you may steady a man's hand provided you do not lead it in the formation of the letters."- Per Lord Gifford : “ I can imagine cases in which the Court would easily reach the conclusion that something more than support had been given notwithstanding the disavowal of the person who assisted-for example if there was a discrepancy in the spelling, or the formaion of the letters from the granter's usual style." 5 Nov., 1875. Noble v. Noble, 4 S.C. 74.

Railway Act, 1854, (17 and 18 Vic., c. 31, s 7). A Railway Company gave consigners of fish the option of having their goods carried at a lower than the ordinary rate for fish, “upon condition of the consigner undertaking by special contract to relieve the Company of all liability for delay, except upon proof that the detention arose from the wilful fault or negligence of the Company's servants.” A fish curer despatched two consignments of fish. Both were detained and damaged. Held that the special contract was “just and reasonable" within the meaning of the Act, and had the effect of throwing upon the pursuer the burden of proving, fault on the part of the Company. On the proof, Held that in consequence of an intermittent block at a junction, arising from a diversion of traffic caused by a break-down on another Company's line which had taken place a few days before the despatch of the first consignment, fault had been proved against the Company in respect that while the block occasioned the pressure of traffic at the junction, this could have been foreseen. Both Companies had failed to make sufficient arrangements for securing the despatch of perishable goods, and they had not warned the consigner when they received the goods that the line had been blocked, and that the goods were in danger of being delayed in transmission. Per Lord Justice Clerk (Lord Moncrieff) “ On the day when the goods were consigned the Company knew they were to carry them by a new and overcrowded line. They were bound to take such measures as were within their power to secure their safe transit by that line quite as much as they were when carried by the former line. They were also bound in the case of perishable goods to carry them in preference to goods not perishable. They were bound either to have taken measures against the delay, if such were in their power, or to have warned the consigner that such was not within their power. I will only add that temporary or accidental detention from unexpected pressure of traffic is a risk incidental to railway transit, and one of which the customers must to a certain extent take their chance. But it is quite a different thing when the causes of pro. bable detention are known and foreseen and are not specifically disclosed to the customers when the goods are accepted.” Lord Ormidale concurred. But Lord Gifford dissented as to the first consignment, but agreed as to the second; as to the first his Lordship thought the failure to stop the fish at the first station was too narrow a ground in the words of the special contract of "wilful fault or negligence."—6 Nov., 1875, McConnachie v. Great North of Scotland Railway Co., 3 S.C. 79.

Bottoinry-Powers of Shipmaster. The Pursuers, a company, commissioned a ship for a Colonial Navigation Company, advanced money on her outfit, appointed a captain, with instructions to take her out to New Zealand and await the instructions of the Colonial Company. The ship was originally registered in name of the first company, but before sailing she was transferred to a Bank, as security for advances. On her voyage she sustained damage, and was repaired in a foreign port. The Captain granted a Bottomry bond for the advances, and, at the same time, drew bills on the first company for the amount. The Navigation, or Foreign Company, became insolvent. The first company obtained a transfer from the Bank and sold the ship and received the price. They were sued by a party holding one of the master's bills for £250, which they had refused to accept, and which was protested for non-acceptance and non-payment. Held that the first company were liable as employers of the Captain, having control of the ship at the time of the repairs and virtually were the owners, and their liability was not affected by the Bond which a majority of the Court held was invalid, because not made contingent on the safe arrival of the vessel at its destination. The action was brought in the Sheriff Court, at Glasgow. The Sheriff Substitute found and decerned for the Pursuer. The principal Sheriff affirmed. The case was then appealed to the Court of Session, and the Sheriff's Judgment affirmed. Per Lord Gifford, “ It is not necessarily the person whose name is on the Register who is to be regarded as the owner, but the person who has the real control of the ship, and from whom alone the captain derives his authority." His Lordship quoted Lord Tenterden on Shipping. “I have very clearly come to the opinion that the granting of the bond, be it what it may, does not affect the liability which the defenders incurred for the necessary, the indispensable and the beneficial advances sued for. The Bond is not in the legal and strict sense a bottomry bond at all. It is expressed absolutely and without any contingency but made absolutely payable in thirty days and no maritime risk is mentioned upon the occurrence of which the bond and bills would be void.” Lord Ormidale concurred with Lord Gifford. Lord Justice Clerk (Moncrieff) agreed on the judgment of the other two judges, but was of opinion that the Bottomry Bond was valid because, it being admitted “that the master being in a foreign port could not otherwise have obtained the money necessary to enable the vessel to proceed, the form of expression of the instrument ought to receive the more liberal construction, and technical objections are not to be favoured.” In the discussion and opinions of the Scotch Judges, English decisions were quoted and chiefly relied on.-9 Nov., 1875. Miller and Co. v. Potter, Wilson and Co., 3 S.C. 105.

« PreviousContinue »