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statutory period fell to be paid over to the charities, and not to the heir of the testator. Observed that personal bar could not be pleaded against the Act which was passed from views of public policy. Per Lord Justice Clerk (Lord Moncreiff): “ If the fund directed to be accumulated is not the subject of any present gift, then the right of the eventual beneficiary will not be accelerated, or arise at the term of twenty-one years, but the heir-at-law in mobilibus will take it as intestate succession. But, if there be a present gift of the fund itself, and the direction to accumulate is only a burden on the gift, then the burden will terminate at the expiration of the term, and the gift will become absolute in the person of the donee." Many English authorities were cited. 24 Nov., 1877. Hector and others v. Sir William Stirling Maxwell, 5 Session Cases, 248.
Culpa-Railway-Master and Servant. An engine-driver, employed by a railway company to drive a train on another line over which they had running powers, was accompanied by a pilot-man on his first trip. He walked on the line to the signal box without a lamp, and fell over an unfenced bridge, and was killed. Held, that the accident happened from his own fault, and that the company was not liable. Per Lord President Inglis: “ The fault charged against the company is, that they did not fence, by a parapet or otherwise, a bridge by which the railway crossed a turnpike road. It is impossible to say that all such bridges must be fenced, like bridges which occur on a roadway. A servant, who was unacquainted with the line, cannot be justified in passing over it without a light. The danger was very great. It is bad enough to walk along a line in the day time, but for anyone to attempt to walk along an unfenced railway in the night-time without a light, was most rash and foolhardy. That was the cause of the accident. I fear it was the man's own fault.” Numerous English cases were cited.
30 Nov., 1877. Clark v. Caledonian Railway Co., 5 S.C., 273
Bankruptcy-Illegal Preference. A machinist ordered and received from an engineer a machine to take the place of another, which he intended to sell ; but not getting it sold, and having no space for the erection of the one sent, after a couple of months it was of consent returned, and received. The price, which never had been paid, was credited in the seller's books. Shortly afterwards the buyer became
bankrupt, and the trustee on his estate claimed the property or price of the machine : Held, that the return of the machine was a bona fide transaction in the ordinary course of trade, and was not reducible. Per Lord President: “Both parties were in bona fide. The bankrupts did not anticipate bankruptcy, and the defenders had no suspicion that the bankrupts were, or were tending to become, bankrupts. No doubt, the machine being returned while the price was unpaid, the effect was to discharge the debt. But there is nothing remarkable in an article of this kind being returned, where the purchaser after all finds he does not require it. It is on this ground, with the absence of all intention to confer or obtain a preference, that the judgment of the Court should be based." 7 Dec., 1877. Loudon Brothers v. Reid & Lauder's Trustee, 5 S.C., 293. Reparation-Wrongful Interdict-Malice and Want of
Probable Cause. Police Commissioners obtained interdict (injunction) against an inhabitant, restraining certain building operations, said to be in contravention of an order of the Commissioners. The order was found to have been illegal, and the interdict set aside. In an action of damages against the Commissioners: Held, not necessary to allege malice and want of probable cause. Per Lord Ormidale: “ An interdict is not granted as matter of right. It is only granted on cause shown, that is, on a consideration and in respect of the representations of the party applying for it. If, therefore, it turns out that these representations are erroneous, or that for any other reason the interdict is ill-founded, and ought not to have been applied for, it is only reasonable that the party obtaining and using it should answer for the injurious consequences, without it being necessary in an action of damages to aver and in the issue to charge malice and want of probable cause.” 19 Dec., 1877. Kennedy v. Police Commissioners of Fort William, 5 S.C., 302.
Ship-Charter Party-Bill of Lading. A charter-party fixed a certain rate of freight and “one shilling per ton gratuity for the captain on good delivery of the cargo.' A bill of lading merely stated “assigns paying freight as per charter-party": Held, ist., that this reference to the charterparty rendered the consignees liable to pay the captain's gratuity; 2nd., that though part of the cargo had received damage through peril of the sea, the captain was entitled to his
gratuity. Per Lord Justice Clerk (Lord Moncreiff):
" There may possibly be claims for the damage done to the goods, if that were done by the carelessness of those in charge. But as a condition of delivery, I am of opinion that the gratuity to the master is as much due by the consignee as payment of the freight.” Numerous English cases were cited. 15 Dec., 1877. Howett y. Paul, Sword & Co., 5 S.C., 321.
A testator, by holograph deed, directed his trustees to pay legacies of £ 5,000 to C. and B., two of three brothers, and to R., the third son of another family, a legacy of £2,000, and to each of his brothers £1,000. He left the residue of his estate, amounting to £200,000, to be divided equally between A., the eldest brother of the former family, and E., the eldest brother of the latter family. Held (Lord Gifford dissenting), (1.) that E. was not entitled to a legacy of £1,000, in addition to half of the residue; (2.) that interest was not due on the legacies from the date of the testator's death, the trustees not having unduly delayed the realization of the estate from which they were to be paid ; (3.) that the testator having added on the margin of his instructions “ all free from legacy duty,” applied to the legacies so marked, but to none else. Per Lord Justice Clerk (Lord Moncreiff): “ In ordinary language, the bequest might no doubt include all the testator's brothers, but here it is clearly meant to provide for those members of the family who were not to have an interest in the residue. When it appears that E. is to
carry off such an enormous sum as one half of the residue, I conclude that the general term brothers' was only used by the testator to save himself the trouble of writing out the names of the six brothers.” Per Lord Gifford : “ I cannot, by merely guessing at the testator's intention, set aside and deny effect to his words." 20 Dec., 1877. Sharp's Trustees v. Kirkpatrick, 5 S.C., 380.
Public Company-Conditional Allotment. A joint-stock company was formed, and shares allotted, and a payment made on each share. The allotment letter stated that no further call was to be made unless a favourable report was made on certain mines, and the payments would be returned without deduction. On a petition to settle the list of contributories at the instance of an official liquidator: Held (Lord Ormi
dale dissenting), (1.) that the letter contained a suspensive condition, and did not render the allottees shareholders until it purified; (2.) that a provision in the articles as to a qualification for being a director did not apply to the persons originally named as such, but only to those subsequently elected by the shareholders; (3.) the official liquidator found personally liable in expenses to persons who successfully resisted being placed on the list of contributories. Per Lord Justice Clerk (Lord Moncreiff):
" There was
an unconditional offer to become partners, made by the respondents through the applicacation for shares and the payment of the deposit, but the offer was never unconditionally accepted, and until it was the contract was not complete.” Per Lord Ormidale: “ The condition in the allotment letters—if there was any proper condition in them at all-was of the nature of a condition subsequent and not a condition precedent, which it required to be in order to prevent the respondents becoming shareholders of the company immediately on the issue of the allotment letters, and payment of the call thereby made.” Numerous English cases were cited. 22 Dec., 1877. Liquidator of the Copper Co. of Canada v. Peddie, &c., 5 S.C., 393
Sale-Goodwill of Medical Practice. A medical practitioner by his settlement directed his practice to be sold for the benefit of his wife. His house had been purchased with her separate funds. The house and practice were separately advertised, and sold at separate prices to the same individual. She undertook to recommend the purchaser to the patients of her husband. A creditor of the husband sued the widow, as executrix, for a debt: Held (Lord Gifford dissenting), that it was not so much the goodwill of the deceased's practice which had been sold as the recommendation of the widow and her friends, and so never had been in bonis of the deceased, and the widow was therefore not bound to account for the price. Per Lord Justice Clerk (Lord Moncreiff): “ There is a clear distinction between the goodwill of a trade and the goodwill of a profession, or, as it is sometimes called, a practice which depends entirely on the personal qualities, as well as the personal exertions, of the practitioner.” Per Lord Gifford : “I think it is quite clear that there may be such a thing as the goodwill of a professional man's practice, and that such may be the subject of a valid and legally effectual contract of sale. It is said that such goodwill cannot pass from the dead to the
living. There is surely nothing illegal in a medical man bequeathing his practice or making a legacy of the goodwill of his practice." Numerous English cases were cited. 10 Jan., 1878. Bain v. Munro, 5 S.C., 416.
Carrier-Delivery-Notice of Damage. A railway company received 77 heating batteries. They were left at the place of delivery, but no one was present to receive them. Next day the consignees gave notice that nine of the articles were broken. A fortnight after notice was given that twelve more had been found broken : Held, that the delay in objecting to the twelve raised the presumption that the articles, other than the nine, had been delivered in good order. Per Lord Justice Clerk (Lord Moncreiff): “There was a clear obligation on the consignees at once to look at the state and condition of the articles which had been landed. The consignees accepted the goods as they were delivered, with the exception of the nine, which were objected to, and consequently they must bear the loss." 11 Jan., 1878. Stewart v. North British Railway Co., 5 S.C., 426.
Restrictions on Buildings.
Ground was feued out as a terrace, with a clause that the houses should be used as private dwelling-houses only in all time coming :" Held, that the feuars had right to prevent another proprietor from using his house as a young ladies' school. Per Lord Ormidale: “ The complainers, all of whom have houses in the terrace, have, therefore, a clear and undoubted interest to prevent the respondents from occupying their house as they propose and threaten to do, in respect of the noise and bustle and annoyance otherwise which such occupation would immediately give rise to.”' Several English decisions were cited. 12 Jan., 1878. Ewing, &c., v. Hastie, 5 S.C., 439.