112

SCOTCH CASES.

In the Kilmarnock Theatre Co. Ltd. (in liquidation) v. Buchanan & Ors., 48 S. L. R. 547, the defenders being successful were found entitled to costs. The action had been raised by the Company and its liquidators. The defenders moved the Court to decern against the liquidators personally for the costs. But the Court refused and issued decree in the following form:"Decern for payment against Alexander Mitchell, Chartered Accountant, Glasgow, and James Robert Mackay, Chartered Accountant there, the liquidators of the Kilmarnock Theatre Company Ltd." The defenders' motion to have the word "personally" inserted after the names of the liquidators would mean that the liquidators had improperly raised and carried on the litigation, and would have to pay the costs out of their own pockets without recourse against the assets of the liquidation, but the Court were of opinion that no grounds had been stated to justify such treatment of the liquidators. It was, however, clearly laid down, and hence the importance of the case, that the effect of the simple decree which was pronounced would be to involve the liquidators in personal liability in the event of their not having in hand assets of the Company sufficient to pay the defenders' costs.

The case of Todd's Trustee v. Todd ([1911], 2 S. L. T. 172), decided last month in the Inner House of the Court of Session, deals with an important and interesting question of International law on the subject of bankruptcy. William Todd had been adjudicated bankrupt in England, and his trustee Mr. F. S. Salaman, raised an action in Scotland to have it declared that a contingent interest which William Todd had in his deceased father's estate passed to the pursuer as his trustee. The bankrupt was entitled to a

of age,

share of his father's estate on his attaining 25 years which he would not do till 1914. This estate in expectancy or spes successionis would, it has been well settled, not pass to a trustee in a Scottish sequestration, the principle on which this is founded being that the trustee cannot take anything which is not attachable by legal diligence. A spes successionis cannot be attached by legal diligence, it cannot be arrested, poinded or got at by creditors in any way till it falls in to the bankrupt. But the question in Todd's case was narrower than that. Briefly, it was whether Todd's interest in his father's estate had been transferred by the Bankruptcy Act of 1883 to Mr. Salaman, that being the statute which gave him his title and under which he was acting. It was argued that as Todd was a domiciled Scotchman the bankruptcy order against him in England had been incompetently pronounced; but the Scottish Court declined to consider this, holding that the adjudication order of the High Court of Justice in England must be given effect to till set aside in that Court. Looking, therefore, at the main question, the Act of 1883 defines the property of the bankrupt which is vested in his trustee as including every description of estate, interest and profit present and future, vested or contingent. The Court looked at this provision in the same way as the House of Lords did in the well-known case of Galbraith v. Grimshaw, and stated the question thus:-Was the right and interest one which the bankrupt could assign to the trustee or anybody else? If the bankrupt could have assigned it, then it was assigned to the trustee by Act of Parliament. If he could not have assigned it the trustee would not get it. The Court ruled that though a spes successionis could not be attached by diligence it was a saleable thing, and as it might be assigned it fell to the trustee by the terms of the Act of 1883. which overturned the judgment of the Lord

This opinion, Ordinary, lays

down a broad and important distinction between the bankruptcy law of the two countries regarding the contingent interests of bankrupts in testamentary estates.

Judicial proceedings relating to the custody of children are awkward and difficult matters to handle, and on that account solicitors consulted about such questions should consider well the advisability of an extra-judicial arrangement. Efforts in that direction, however, having failed, the husband in Petition Robertson ([1911], 2 S. L. T. 201) applied to the Court to grant warrant to messengers to search for and take his child into their custody and deliver to him. The spouses had been judicially separated, and it was averred that the mother was contemplating going abroad, in which case the husband would in all probability lose trace of her and the child. The Court pronounced interim interdict against the removal of the child from the jurisdiction, but were of opinion that a summary order authorising a messenger-at-arms to take the child, which was only two years old, from his mother could not be pronounced.

Under the Scottish Law Agents Act, a solicitor in a litigation is entitled to a charging order on the fund recovered. An application of this privilege to limited companies is to be found in Philip v. Wilson (Liquidator of Bay Island Slate Syndicate Ltd.) 48 S. L. R. 947. The pursuer had conducted an action in Scotland on behalf of the Syndicate, which was a company registered in England. The Syndicate were successful in getting decree, and been extracted they went into liquidation. then presented a petition for a charging order under the Law Agents Act on the fund which had been recovered by the action and which had been paid over to the liquidator. It was maintained that the pursuer's proper and only remedy was to claim in the liquidation, but the Court held that as

after it had The pursuer

the liquidation was a voluntary one it did not constitute a bar to enforcing payment of debts and that the creditors in the liquidation were not entitled to the sums recovered by the action in which pursuer acted, except after providing for the legitimate expenses of the agent incurred in recovering the money for them.

D. M.

IRISH CASES.

The case reported as Edinburgh Life Association v. Y. [1911], 1 Ir. R. 306, is a neat decision on a point in the law of evidence. It illustrates the combined operation of two well-known and simple principles: (1) that evidence of facts merely similar to, but not specifically connected with, the facts in issue, is not generally receivable; (2) that evidence as to matters of substance, which have not been alleged in the pleadings, is generally inadmissible. The action was brought by an insurance company against the defendant, who was assignee of a policy on the life of a third party, claiming to have the policy set aside on the ground that it had been procured by the defendant's fraud. The statement of claim duly gave particulars of the fraud alleged, but only in relation to the one specified policy. At the trial, however, the plaintiff company sought to give evidence showing that the defendant had effected other policies, on the lives of other persons, under similar fraudulent circumstances. The Court held that such evidence would be admissible only if the claim had substantially alleged that the fraud complained of in the present case was part of a system or scheme. To have alleged such a system would not have been "pleading evidence," but stating a material fact. In the absence of such an allegation, the proposed evidence was rejected; but an adjournment was granted for the purpose of enabling the claim to be amended, of course on terms as to costs.

Bell v. Butterly ([1911], 1 Ir. R. 312), though primarily a decision as to costs, is noteworthy for a neat statement as to the legal effect of carrying a fund in Court to a separate credit. In a creditor's administration suit, the general assets were insufficient to pay the costs of the suit in full. The executors, who were defendants, claimed priority for their costs as against a secured creditor who had established a charge on a fund realised in connection with a sale in another suit, and brought into Court in the present suit and carried to a separate credit. It was held that they could only claim priority for such of their costs as were relative to the separate account. "The effect of carrying to a separate credit is, that the fund is released from the general questions in the cause, and becomes marked as subject only to the question arising upon the particular matter referred to in the heading of the account."

Boyle v. Ferguson Ltd. ([1911], 2 Ir. R. 489), was an action against a company owning motor cars, for a death caused by the negligence of the company's servant. The jury had found that the servant was acting within the scope of his employment at the time; and the question for the Court was, whether the following very special facts amounted to evidence to sustain that finding. The servant in question was the manager of the company's department for the sale of second-hand cars; he was driving with friends of his own, on a Saturday evening, in one of these cars; he often took out second-hand cars without accounting to anyone; the petrol was charged to the defendant company; he said that his being on the road gave him better opportunities of doing business for the firm, but that this time he was driving for his own pleasure. The Court held that the verdict was sustainable. The facts that he was at the time of the accident a servant, and that part of his duty was to drive the car, were in the Chief Baron's view primâ facie evidence that